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and the American publisher connives at that breach of the law probably for a consideration.
(7) The publishers' argument next states (par. 7) that "the simple question " is whether the purchaser of the American rights is to be protected “in the value of that which he has purchased" and a statute which does not protect him secures neither copyright nor justice." This is one of Mr. George Haven Putnam's favorite arguments and his favorite way of putting the matter. He seems unable to understand, and probably never can, even though he should undergo the trepanning operation, that when an American publisher buys the American rights in a foreign author's work he buys just so much and just so little control over the foreign author's work as the law in its sovereignty chooses to give him, having just regard to and making just provision for all other interests concerned in the use of the book as produced by its author. The right of the Legislature to limit the amount and degree of control over the American edition of a foreign author's work is, in moral and political ethics, just as clear and distinct as is the right of the Legislature to limit a citizen in the enjoyment of any other right which is not a natural right, and copyright is not a natural right. The question is not a simple one; it is complex-complicated by the interests of the people as a whole and of the individual user of books.
(8) There is nothing in paragraph (8) of the argument requiring notice excepting the last sentence, viz, "The matter in question is whether the owner of the American copyright shall have his property taken without compensation." This perversion of the relation of the proprietor of the American rights to the foreign edition ignores the fact that the purchaser of the American rights will pay a price to the foreign author or publisher diminished by the probability of importation of foreign-made copies of the foreign author's work. The foreign author profits by the sale of the foreign-made copies in this country as well as by the sales at home. Nothing therefore is taken from the American proprietor without compensation.
Mr. Putnam frequently asserts that the clause of the existing law permitting importation by an individual, as by libraries, not exceeding two copies for use and not for sale, was surreptitiously inserted in the statute of 1891 and without debate. I add in Appendix B an extract from a speech made by Senator Sherman, of Ohio, in the Senate on the international copyright bill then pending, February 9, 1901 (three weeks before the passage of the bill). The extract not only controverts the statement that the preservation of the right to import by individuals, which that law provided and still provides, was an afterthought or a surreptitious insertion, but, short though the extract is, it illuminates in a striking manner the points which I have endeavored to make above. Numerous other extracts from speeches made during the debate might be given.
I also append as Appendix C an extract from an article by Mr. George Haven Putnam printed in The Independent (New York) of November 21, 1907, showing that the purpose of the American publisher is to adapt the works of foreign authors to the American market and compel the American reader to buy those adaptations, or buy from him the genuine work. Senator Sherman foresaw with prophetic vision exactly that situation, and sought to prevent it, and did. WM. A. JENNER,
34 Pine Street, New York City.
APRIL 2, 1908.
ARGUMENT OF THE AMERICAN PUBLISHERS' COPYRIGHT LEAGUE.
[Importation of copyright books, sec. 34, pp. 18-19.]
1. The contention submitted by Mr. Jenner for the change in the provision, as drafted in all the four bills now pending, provides for the absolute removal of the restrictions, for individuals as well as for associations, in the importation of copyrighted books. This means that after the law has declared that the author and his assign have the "exclusive control" in the article produced, “to multiply, to vend," etc., all the citizens of the community (with the exception only of booksellers) are placed outside of the restrictions and are permitted to act precisely as if no such copyright control had been given.
2. There is, of course, no logical ground why from the privilege that is extended thus universally the bookseller should be excepted. There is also no
logical ground why citizen B, who happens to have no direct connection with the trans-Atlantic bookseller, should be blocked from a privilege which is extended to citizen A.
3. Such a provision for the removal of the restrictions of copyright is in itself absolutely exceptional. The copyright laws in all the other states of the world are in accord in maintaining consistently the exclusive control given to the producer and to his assign. Stripped of its verbiage and personalities, Mr. Jenner's argument simply undertakes to do away not only with the principle, but with the practice of copyright.
4. The statement that unless this privilege of unrestricted importation, irrespective of the permission of the owner of the copyright, be granted, the foreign editions of the books in question could not be secured, is absolutely without foundation. There is no difficulty to-day in England, or in other of the states of Europe, in securing, under arrangement with the representative of the copyright owner, foreign editions of books, which editions happen to be more convenient for the requirements of the student.
5. German students in London are securing in this manner from time to time copies, in the language of origin, of books which are fully controlled by British copyright. The routine that had obtained in the United States prior to 1891 for the importation of copyrighted books can be carried out to-day, in connection with the development of trans-Atlantic bookselling connections, still more effectively.
6. It is not even necessary for the student or reader desiring the book to make his application directly to the representative of the copyright owner. His order can be placed with any intelligent bookseller, who has no difficulty in arranging, through the publisher controlling the American copyright, for the importation required.
7. The simple question at issue is whether the purchaser of the American copyright of a work is to be protected under the law in the value of that which he has purchased. The statute which does not secure to the purchaser the control and the advantage of that which he has purchased secures neither copyright nor justice.
8. Mr. Jenner's argument laid stress on the necessity of the reader standing "hat in hand" before the publisher in order to secure permission to get a book that he was in any case entitled to get. This is, of course, a mere figure of speech. In any use of property the applicant has to arrive at an arrangement with the owner of such property. If Mr. Jenner owned a water course, and somebody wanted to secure water power, he would have to come to terms with the owner of the course. If, in like manner, somebody wanted to secure a right of way across a field belonging to Mr. Jenner, he would have to arrange with the owner. The matter in question is whether the owner of the American copyright shall have his property taken without compensation.
EXTRACT FROM A SPEECH OF HON. JOHN SHERMAN IN THE SENATE, FEBRUARY 9, 1891, ON THE PENDING (INTERNATIONAL) COPYRIGHT BILL.
[From Congressional Record, vol. 22, part 3, p. 2386.]
Mr. President, let us go a little further. I say this is a stipulation in favor of the foreign author, the writer of the book, because it is to be presumed he has his book published in his own country, and he gets the benefit of the sale of that book wherever it is sold in our own country or in his; but it proposes to give an exclusive monopoly to the person who makes the contract for the publication of the book, and that monopoly is so exclusive that no book can be brought into this country except for colleges and institutions of learning, and then only in limited numbers. No book is to be brought into this country from foreign countries without the consent of the publishers here.
Suppose an application should be made to the person who has the contract for the publication of the book here. Is he likely to consent when that consent will interfere with his interests? It seems to me to require a citizen of the United States to ask Mr. Harper for the privilege of bringing a book into this country from England is a humiliation to which most American citizens would not submit. What right has Mr. Harper, because he has made a con
tract with a foreign author, to say whether I shall buy a book in England at the prices current there subject to the payment of duty? It seems to me that the very limitation requiring the consent of the man who is most interested against my buying a book wherever I choose is a sufficient objection to this bill.
I put it upon broader grounds.. In no case would I levy such a duty-for this is in effect in the nature of a duty-in no case would I levy such a prohibition upon such an article of necessity as a book. Books are just as much articles of necessity to an intelligent man as the food he eats and the coffee he drinks; he must have them. Most of us, when we want a book, send and get it. If we can get it in our own country we may be easily satisfied; but suppose the American publisher who has this monopoly should refuse to issue a book of sufficient taste and of a character that suits our taste, ought not taste to be indulged in, ought not fancy to be indulged in? Are we mere plodding clodhoppers, satisfied with what only American publishers will publish, without any respect to our taste as to the character of type and the illustrations and all that?
EXTRACT FROM ARTICLE BY GEORGE HAVEN PUTNAM IN THE INDEPENDENT (NEW YORK) NOVEMBER 21, 1907.
The book-buying public has also a direct business interest in the matter. There are many books of which a publisher is prepared to undertake the production of American editions only when he can be assured of the control of the market that he has purchased. If such control can not be assured and the book is not undertaken in an edition suited for the special requirements of American readers, a large number of these readers fail to have knowledge of the existence of the book or to secure service from it. The readers who have to purchase their copies are obliged to take these in the transatlantic edition. which is, as a rule, not so well suited for American requirements, and which is usually higher in price than an edition printed on this side.
THE AMERICAN PUBLISHERS' COPYRIGHT LEAGUE,
HERBERT PUTNAM, Esq.,
Librarian of Congress. Washington, D. C. MY DEAR SIR: I am writing to acknowledge the receipt of the statement prepared by the Librarian of Congress presenting the provisions in the copyright statutes of foreign countries with reference to the prohibition of importation of copyrighted books. I am very glad that such a summary has been prepared. It presents, in convenient form for reference, a précis of the provisions of all the European copyright laws which have to do with this important provision of copyright protection. I was myself, of course, familiar with these provision, and I have had occasion more than once during the past twenty-two years to quote their purport before the Congressional committees. It seems to me of first importance that the committees should have, however, this authoritative report in the matter.
This summary bears out the statement that I have from the outset maintained, that the copyright laws of the world, outside of the United States, are in accord in the conclusion that a logical and consistent recognition of the rights of the producers of copyright property requires that such producer should have the full control of such property for the multiplying, vending, etc. Just in so far as such control is interfered with or impaired the copyright is, of necessity, undermined and lessened in value.
I am inclosing for your information letters this morning at hand from Mr. Arthur Steuart and Mr. Paul Fuller. I had taken the ground in the statement made by me on the 27th ultimo, that these gentlemen had expressed their approval of the provisions of the bill, as worded at the hearing fourteen months back, in regard to the general purport of the bill, and in regard to this importing provision.
The statement was made on the 27th ultimo, that these gentlemen were not in accord with any attempt to restrict the importation of copyrighted books. This quotation undoubtedly had an influence upon the committee not merely on the ground of the authority of the lawyers in question, but because it indicated a lack of accuracy in my own statement of their position. It appears, however, that the gentlemen were not correctly quoted by those who stated that they approved of the unrestricted importation. It seems only due to me, under the circumstances, that the originals of these letters should be brought to the attention of the chairmen of the two committees. I have retained copies for my own files. G. H. PUTNAM.
BALTIMORE, MD., April 1, 1908.
GEORGE HAVEN PUTNAM, Esq.,
American Publishers' Copyright League, New York, N. Y.
MY DEAR MR. PUTNAM: I have your letter of March 31, which I suppose has been sent as a circular letter to others.
Whoever attempted to quote me as approving of the free importation of copyrighted works into the United States during the life of the copyright has very seriously misrepresented me. I do not believe in such a provision in the law, and it was for this reason that I approved the omission of the provision from the draft of the bill. I also disapproved of the concession made to the libraries, I fully agree with you that if the copyright is to be recognized as legal property it should be protected absolutely, without exception in favor of any private interests.
I am, with kind regards, very truly, yours,
APRIL 1, 1908.
MY DEAR MR. PUTNAM : Like the man in Hudibras, 'I am of the same opinion still." At the very outset, as early as March, 1906, I was opposed even to the privilege of libraries importing copyrighted books as a matter of right, but the current (and the committee) is against me, and has been from the beginning. I send you a copy of the report adopted at the last meeting of the committee, which I transmitted without note or comment, specifying the presence of only four members.
Yours, very truly,
GEORGE HAVEN PUTNAM, Esq.
RELEVANCY OF FOREIGN STATUTES RELATING TO IMPORTATION.
[By William A. Jenner.]
I have received, gratefully, from Mr. Putnam, the Librarian, a copy of a statement and compendium of foreign statutes and opinions relating to importation into foreign countries of copyrighted works, which were prepared by him at the request of the commitees. The time at my command has not enabled me to examine all the original sources to which he resorted or to ascertain whether additional data exists. I am entirely willing to accept for present, if not for all, purposes his statement and compendium as a full and accurate response to the committees' request.
It does not seem to me that foreign statutes regulating importation are especially material, although, being in pari materia with our statute, they may afford useful suggestions. The policy of our country is peculiar in the respect that it requires the typesetting, and under the proposed bill will require the printing and binding—that is, the manufacture to be done in this country as a condition of copyright. No other country excepting Canada requires that condition. That policy, adopted in 1891, is, at least, to the extent of its present application, to be preserved and should not be impaired by indirection. It is also the policy of the existing law to allow importation of foreign-made copies of foreign authors' works by the Government, by libraries, and other institutions,
and by individuals, for use and not for sale; this policy should also be continued unless some good reason exists for limiting its operation. Those two policies can exist, as they have existed since 1891, side by side.
Our country must also be distinguished from all foreign countries by another important difference. The materials and the labor which enter into the manufacture of a book cost much more here than in any foreign country, and the duties imposed by our tariff upon the manufactured book is much less ad valorem than the duties imposed upon the materials which enter into that manufacture, as paper, type, and printing ink. Those facts, as well as the policies mentioned, must be considered and the policies be concinnated with the facts.
Suppose a book to have been written in England by an English author for the English public and a thousand copies to have been made in England by the English publisher for his home market; plainly, a thousand additional copies could be made at the mere cost of paper, printing, and binding, and after the carriage and duty on importation are paid, be placed in the bookseller's store in this country for a less sum than it would cost to set up and make the same book here in the same style. If the law should sanction or permit importation by the American proprietor of the American copyright, i. e., the American publisher, his commercial interests might often operate to cause the importation, and the policy of requiring the book to be made in this country would be defeated.
I have shown in a preceding section how the law permitting importation by individuals for use and not for sale "under permission" of the copyright proprietor, if the statute is construed to permit the importation by the publisher upon arrangement with the "intelligent bookseller" acting on the order of a customer, would operate to permit the American publisher to import as many copies of the foreign book as he could market upon the order of dummy customers ostensibly for the dummy's use, but actually for sale by the American proprietor, thus practically defeating our governmental policy of requiring the book to be made in this country.
THE CANADIAN LAW.
Under the Canadian law, as explained and quoted in the compendium of Mr. Putnam, the Librarian, the right of libraries and incorporated societies to import two copies for the use of members is granted, notwithstanding any prohibition, but respecting an individual, a resident of Canada, desiring a copy of, say, the London edition, the law provides that he "may apply either directly or through a bookseller or other agent" to the Canadian licensee, i. e., the publisher, "for a copy of any edition of such book then on sale and reasonably obtainable in the United Kingdom," "and it shall then be the duty of" the Canadian publisher "to import and sell such copy to the person so applying therefor, at the ordinary selling price of such copy in the United Kingdomwith the duty and reasonable forwarding charges added;" and the failure or neglect to import, without lawful excuse, authorizes the minister to susupend or revoke the prohibition of importation.
The minister is also authorized by the act to suspend or revoke the prohibition upon importation if it is proved to his satisfaction that (a) the license to reproduce in Canada has terminated or expired; or (b) that the reasonable demand for the book in Canada is not sufficiently met without importation; or (c) that the book is not, having regard to the demand therefor in Canada, being suitably printed or published; or (d) that any other state of things exists on account of which it is not in the public interest to further prohibit importation.
It appears by a note in the Librarian's statement that the validity of the Canadian statute is doubted as being "prima facie in conflict with the imperial statutes."
I have no means of ascertaining how the statute has worked since it has been in operation, and the term of less than eight years during which it has been in force is hardly sufficient to have afforded much valuable experience. That the principle of allowing importation by the individual has been preserved
a Act of July 18, 1900, 63 and 64 Vic., ch. 25. The compendium of the Librarian was furnished to me by him in the form of typewritten manuscript, and I am, therefore, unable to refer to the printed report of the committee's proceedings, which I understand has not yet come from the press.