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4. Protection abroad is necessary to the American publisher and pictorial manufacture. Unless we can offer the foreign publisher protection here, we can not get it in his market.
5. The value of any protection is measured by its effectiveness. Denial of copyright to foreigners in the pictorial field is not effective protection and complicates the law.
6. Applying manufacturing clauses to pictorial graphic processes imposes troubles and difficulties not existent in other fields.
7. The removal of the exception to pictorial lithographs made abroad when the subjects are located abroad would make it impossible for American publishers to reproduce those subjects in most cases.
In all remarks made on this subject we wish it very clearly understood that we refer only to copies made by the pictorial graphic arts. We do not refer to matters outside of our field which may have other limiting conditions. Please note also that we speak as manufacturers as well as publishers.
In our field, the restrictions apply only to pictorial lithographs, and make an exception in the case of lithographs of subjects located abroad. A suggestion is made to eliminate this exception, and further, the Kittredge and Barchfeld bills include photo-engraving. We have stated before that we were opposed to manufacturing restrictions upon any of the pictorial graphic arts which, of course, includes pictorial lithographs. We believe in protecting American shops; but in our field we think these clauses will not affect the protection desired. On the contrary, they will limit our work instead of increasing it.
Notwithstanding this section includes pictorial lithographs in contradiction to our belief, we will support it as now worded in the Smoot-Currier bills, but we could not if extended further. And we frankly state that we support the lithographic clause as it now stands, not because we believe it good, but as a compromise arranged between conflicting opinions in order to remove as many disagreements as possible. We specially protest therefore against a further extension of the restrictions.
1. We believe it most important to make clear a fundamental difference between the expression of a literary author's thoughts and an art author's thoughts, which difference imposes special conditions upon the manufacturing of copies for the art author. The thought of a writer is expressed by words which mean exactly the same whether printed in one form of type or another. The words are just as beautiful and just as noble whether expressed in the cheapest or in the most expensive book, and are not modified by the types. This is not the case with the artist. The kind of process selected and the quality of work in the copy are vital to the accurate and satisfactory expression of his thought. For example: For some reproductions a mezzotint has the necessary qualities and suitability. For another kind of expression a line engraving is the only possible exponent. The process that may well express an old master may be entirely impossible for a delicate water color, a mural decoration or a textile. Even when a suitable process is selected there are still wide differences of expression, dependent upon the method of using the process, the amount of skill, and the degree of specialization in that particular field. One desiring Chahine's or Helleu's characteristic use of dry point etching must go to them in Paris for it, just as any publisher who wishes a certain quality of engraving must go to the engraver doing that work. Now, if a literary author is entitled to have his words reproduced without mutilation or to have his thought translated from another language into the form he thinks does him justice, equally so the art author is entitled to have his thoughts translated in the medium best adapted to secure the best expression of his work. Quality of copy with the art author is a preeminent factor; so with the scientist. Not only are the author and publisher concerned, but the public also, which is entitled to the most accurate reproduction possible.
Certain forms of processes, many which are secret, are only worked in special factories, and where such a process is desired one must go to the factory producing it or go without. For example, a process popularly known as the Goupil process, which is secret, is only made on the Continent. One who needs that process must go there to get it. In the same way the writer is connected with a company producing another secret process only made by them in this country, and where the particular qualities of that process are desired it must be secured of them. Or, again, one kind of line engraving in color is not made in this country at all; where is, color photo-engraving is carried to a very high state of perfection in several factories here.
A very cursory examination will clearly show that anything which limits the form of expression of an art or technical author introduces conditions into art, scientific and technical pictorial publishing, which do not exist in any other form. A free development of pictorial publishing (and manufacturing also) requires freedom in choosing the process.
2. Eight of our members operate and control their own American shops and are therefore competent to speak as American manufacturers as well as publishers. We believe the extension of these clauses will be harmful to our interests, and we certainly would not advocate a policy which would reduce or destroy the work of our shops. Instead, we want to increase it. As typical of the opinion held by our pictorial manufacturers who have had broad experience, we attach herewith copy of a letter of Mr. Edmund B. Osborne, president of the American Colortype Company, to which we earnestly invite your attention. To give proper value to this letter we should state that Mr. Osborne's company has factories in New York, Chicago, and Newark and is the largest color engraving company on this continent and one of the great color reproducers of the world. The original has already been filed with your committee. 3. Under the existing law we have prohibition of copyright upon negatives made abroad. It was assumed this would help the American photographer, but practical experience in the operation of that law has conclusively shown that it very seriously injured the American photographer and publisher. Not only did it compel him to confine his work to subjects which could be photographed within the United States and debarred him from all work abroad, but it also prevented him from getting much needed protection abroad for the photographs he made within the limits of this country.
4. Protection abroad is of increasing importance to us, and we should be put in position to get that protection. In art publishing particularly the American field is relatively limited as yet, and a large development can only be built up upon a large field. The moment we step outside this country with our productions where the larger field is now found, we are immediately met by two conditions. First, a practical absence of protection as far as copyright is concerned; and, second, a manufacturing competition in which the cost of the foreign production is much less than we can dream of. The result is we are protected in the market where our field is most limited and where there is equality of manufacturing costs, and we get little practical protection in the larger field abroad, where our competitors make similar goods for one-half our costs. That is, we get protection where we least need it and not where we most need it. Our foreign competitor belongs to a nation subscribing to one or more of the "copyright unions," so that he gets protection generally save in Canada and the United States, and when he enters the latter countries he does so with a large margin in his favor in the manufacturing cost, even if he gets no copyright. What is the result? There is not an American art publishing house today seriously publishing abroad, nor is there one able to maintain a foreign trade of magnitude.
The Canadian and English market is of immediate value to us on account of similarity of tastes. In most of the pictorial fields, however, we are denied their protection. With protection there we could build up business now denied us which means prints made in American factories. If the manufacturing restrictions are maintained in the pictorial arts, however, we will have no chance of getting protection abroad. In short, we can not hope for reciprocal relations in the pictorial field.
We have reciprocal arrangements with some other countries now, and it may be asked if we do not get practical protection now how can we secure it by giving foreigners extended privileges here. In reply we say that we have received assurances from reputable English and continental publishing houses that if they can obtain copyright in this country for their pictorial productions they will do what they can to get us similar privileges in a practical way in their countries. It may be noted in passing that whether they are granted that privilege or not, no reputable American house will copy their publications, and as reputable houses are shut out anyway by ethical considerations no harm is done in debarring disreputable houses also, and giving us the chance to get protection abroad. Certainly, if the law makes it impossible to give foreign countries reciprocal arrangements, we surely will put it beyond our power to get the needed protection, for we can not expect foreign countries to be more generous with us than we are with them. Even if these manufacturing clauses are entirely removed from our law, and similar privileges are not granted by a foreign country, it still remains for the President to determine whether we get
sufficient reciprocity before granting a foreign nation our copyright protection. We can cite practical cases in which we have suffered loss by reason of this lack of foreign protection.
We append at the end of this section a synopsis of the practical protection afforded us by foreign countries, as requested by Chairman Currier.
5. The value of any protection is always measured by its effectiveness. Let us see how effective these manufacturing clauses have been in the existing law.
We have already cited the case of the photographer, in which it is conclusively shown that the manufacturing restriction actually reduced the output of the American, and greatly limited his field of work. In pictorial photo-engraving, wheih is not protected in any way in the existing copyright law, we do not find that the absence of that protection has in any way retarded its development. On the contrary, we are relatively further advanced in color photoengraving than in any of the other pictorial arts. A very large percentage of this work is made in America, much larger than the proportion of lithographs (which are protected), and some is even exported abroad.
In lithography it is more difficult to estimate clearly the effect, if any, of the copyright provisions upon importation. Certain it is that a very large volume of lithographs are still imported, notwithstanding the prohibition of copyright upon lithographs made abroad, and such importation continues in products which are normally protected by copyright when made here. Clearly, therefore, in many cases the supposed protection resulting from prohibition of copyright when made abroad is of doubtful effect. We cite two contrasting cases:
The first is that of the picture post card. The company with which the writer is connected is the largest American manufacturer of these cards, and suffers most severly from the competition of lithographic cards imported at far lower rates than we can manufacture them. We mention this to show that we not only speak with full experience, but also with decided feeling, for we suffer grievously from this competition. Most American-made cards are published under a copyright; hence it must be of value. Notwithstanding the denial of copyright upon the cards lithographed abroad, they are imported into this country by the tens of millions, and the importations much exceed the domestic manufacture. Clearly, the manufacturing clause as applied here does not help in a practical way.
Another case in which practical protection did result is this. It is well understood that the decks of playing cards used in this country were once practically all imported from the Continent. With few exceptions, these cards are now all lithographed in the United States. What made the change? It was the fact that Congress imposed a unit duty of 10 cents per pack and 20 per cent upon the cards, which was enough to turn the scale in favor of the American shop. If Congress will give us an adequate unit duty per card, as in the case of the playing cards, instead of the paltry 5 cents a pound now imposed, we will shortly shift the manufacture of these cards to this country and do it whether there are copyright restrictions or not on the manufacture.
It is obvious that manufacturing restrictions introduce decided complications in the law, adding to the technicalities and difficulties of copyright, and their use can only be justified by unquestioned results in protecting the field they aim to cover. The protective tariff is the effective way when adequately applied.
Another practical consideration in pictorial production is the fact that editions are usually made from one plate only, and it is often impracticable to make different plates for different countries as in books. In the case of engravings and etchings having an individual character, the impossibility is obvious.
6. In applying the manufacturing clauses to pictorial graphic processes certain practical difficulties immediately appear which do not exist in the case of reproduction of text. For example, the term "photo-engraving" when applied to pictures is a very unsafe and uncertain term and might be held by the courts to include processes not contemplated by your committee. The field and limits of processes are constantly changing with their evolution, and it is quite impossible to say to-day what may be the field or vocation of a process to-morrow. Lithography, which once meant a process solely performed upon stone, now covers work produced upon zine and aluminum as well. Not only that, but prints are frequently made to-day which are the production of two or more processes, such as one part being made by lithography and another part by engraving. Again, a number are secret in whole or in part, and the workers of such processes would certainly not classify them under the
copyright law for quite obvious trade reasons. In short, the ambiguities and uncertainties of application of these clauses to the pictorial arts are quite different propositions from their application to text matter. The secrecy of a process would also make it extremely objectionable to the maker to cover it by an affidavit describing its class in any way. Where there is no secrecy as to the method of work, it has not always been easy for the Treasury Department to classify a print made abroad when the product of two separate processes.
7. It is suggested that the exception in section 16 regarding pictorial lithographs of subjects located in a foreign country should be stricken out because such subjects can be equally well made here. That is not the case. It is possible to make lithographs of such subjects in this country in some cases, but in most it is neither possible nor is it the practice to attempt it. Art reproduction or adequate copying of technical subjects, such as scientific plates, textiles, pottery, or similar articles must be done where the originals are. Concrete cases will show the impracticability of such a suggestion.
In fine-art reproduction one of two methods is always employed. The first is that of sending the painting to the factory where the reproduction is to be made. In that case the workman has the original canvas directly before him and carefully proves and "justifies" the successive parts of his work as he goes along. The best work is produced this way.
The second method is less satisfactory, and is employed when the original can not be transported. Even in this case very close touch with the original is maintained. If the work is done by etching or engraving it is no uncommon thing for the etcher or engraver to work his plate directly before the original in the museum or church. In the case of the lithographer where the character of his material will generally not permit this, he makes a very careful drawing and color key directly from the original and works his plates from such drawing and key. As the work progresses, however, he constantly proves and justifies the successive stages of the work by comparison with the actual original, taking his proofs there for that purpose until the work is finally finished. Such justification during the progress of the work frequently compels a large number of comparisons with the original, and it will be seen how impossible it would be to expect that kind of work to be performed in Chicago if the original were located in Vienna.
The writer's company in Detroit has had many originals shipped to its factory for the purpose of reproduction. The risks of such shipment and the subsequent handling, to say nothing of the expense, are no slight matter, even when owners can be persuaded to allow valuable objects of art to pass out of their keeping. Yet we continually submit to this, and we surely would not do it if we saw a possible way to avoid it, for it sometimes prevents our making any reproduction at all. We have reproduced paintings in American museums which could not be moved. We took the utmost care with the negatives, correcting same with a careful color key, but in addition to that, during the progress of the work we sent the workmen making the reproduction several times to the original for correction, and finally our superintendent for careful verification as well. This is the only way followed in best practice. The increased difficulties are obvious if the originals had been located in Madrid or St. Petersburg, in which event they would have proved a practical bar to doing the work. Recently we made copies of certain medical sections in which absolute faithfulness of reproduction was essential. They were for a university professor located only 40 miles away, who was able to give personal directions. Even with his supervision, however, the originals could not be satisfactorily copied, and it finally became necessary to do this work in the university where the sections were.
In art work it is not sufficient to reproduce the same color tones as in the original. Every practical art publisher knows that successful reproduction is not determined by the verity of the color tones, but is determined by how closely the apparent optical effect of the copy reproduces the optical effect or impression of the original. The latter is only secured by careful working with the original from start to finish.
PRINT PUBLISHERS' ASSOCIATION,
AMERICAN COLORTYPE COMPANY.
Mr. W. A. LIVINGSTONE,
President Print Publishers' Association, Detroit, Mich.
DEAR SIR: I am informed that the Kittredge copyright bill, now under consideration, proposes to exclude from the benefits of the copyright act the publication of the works of foreign artists or authors, except as a mechanical work of publication, such as the photo-engraving, lithographing, or printing of a work of art, shall be done in the United States.
I wish to express very emphatically my conviction that this is wrong in principle. The business of this company, viz, the reproduction, printing, and publishing of works of art, is just the sort that is designed to be protected by this measure, and we would be among the largest beneficiaries of such an act. I do not believe, however, that it is just or wise to attempt to secure the protection of American labor engaged in the printing and publishing interests in this way. I believe that the United States ought to afford the protection of its copyright law to foreign artists and authors on exactly the same basis that it affords protection to American artists and authors, provided the countries of which such artists or authors are citizens extend similar privileges to American artists and authors.
I believe in protecting American labor and in recognizing the difference between the cost of American labor and the cost of foreign labor, but I do not believe that this should be mixed up in the copyright act. I think that the protection of American labor employed in these industries should be accomplished as we do it for other kinds of labor, viz, by our protective tariff.
It seems to me that we have two separate issues here and that they ought not to be confused. First, we ought, in cooperation with the other nations, to secure for artists and authors the undisputed control of the products of their genius and full rights to the fruits of them, and that can be done by our copyright law.
On the other hand, we owe it to ourselves to protect our own labor and not to permit the cheap working men of Europe to compete on even terms with our higher-priced working men in this country; this we can accomplish by a wisely devised protective tariff.
I hope you will succeed in convincing the committee of the unwisdom of trying to combine these two issues in one bill.
Very truly, yours,
AMERICAN COLORTYPE COMPANY.
APRIL 4, 1908.
II. Copyright protection afforded American artists and pictorial publishers
The determination of these rights and their practical value is most complex. As the table below aims to give the practical protection and not the technical protection afforded, some explanation seems necessary.
METHODS OF OBTAINING FOREIGN PROTECTION.
1. Some foreign countries give copyright protection to foreigners regardless of formalities and treaty arrangements between the countries.
2. Other countries give copyright to foreigners without treaty arrangement, but only when the local conditions as to formalities are complied with, which may or may not include registration or publishing within the country.
3. Still other countries only give copyright to foreigners either when residence exists within their boundaries or by an expressed treaty between the respective countries or by virtue of the respective countries being subscribers to one or more of the copyright unions.
(a) A country may permit copyright to a foreigner by treaty, but may compel compliance with local conditions as to manufacturing or otherwise which will nullify the protection. Example.-The American painter can secure British copyright for his painting only if resident within the United Kingdom at the time of making the painting.