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Mr. OGILVIE. Only those offered for sale in the United States by the authority of the copyright proprietor. Now, to illustrate. The Supreme Court, on the 3d of February, rendered a decision upholding a copyright on a book in reference to which I communicated with the copyright office and was informed that the indexes of that office showed no copyright entry. Only one of the five conditions imposed upon American copyright owners had been complied with in respect to that book. That was that the type had been set in the United States; and my friend here, Mr. Hale, was the man who opposed us and won the case. He is entitled to great credit. Any man who can win a case of that kind is entitled to great credit.
The CHAIRMAN. Did you say that was a decision of the Supreme Court?
Mr. OGILVIE. That was a decision of the Supreme Court. The condition was that the type had been set within the United States. No application for a copyright for that particular book under the title under which it was published had ever been made. No copies had ever been filed. The copyright notice was eliminated, as a matter of contract, and no titles were ever filed in the United States copyright office. Acting on the information which I got from the copyright office, I proceeded and fought that case through to the United States Supreme Court and lost. My investment is gone. The capital of the corporation which was formed for the purpose of publishing that book has been entirely dissipated, and I, individually, when the capital was dissipated, took up the fight at an expense, as it now develops, of $1,500. For what? Simply because the Supreme Court has upheld a copyright on a book that was published without a copyright notice.
Mr. GEORGE H. PUTNAM. Published in London.
Mr. OGILVIE. It doesn't make any difference where it was published. No dictionary of the English language defines the word "publish" as confined exclusively to the limits of the United States. Mr. GEORGE H. PUTNAM. May I ask the name of that case?
Mr. OGILVIE. Yes; G. C. Merriam & Co. v. The United Dictionary Company.
It is essential for the protection of gentlemen who publish books such as dictionaries and like works that every book published on which there is an American copyright shall contain the copyright notice; otherwise books will come into this country. There are four ways provided in both the Smoot and Currier bills whereby books can be brought into the United States on which copyright exists, and under the law it is not obligatory to give a copyright notice. Those books will go into libraries and be referred to and extracts made from them, with the result that some fine day the owner of the copyright will come along and compel the owner of the set of plates from which had been made the compilation, to destroy his entire work and waste his entire investment. The elimination of the American copyright notice is merely a stop.
The CHAIRMAN. I have that decision here, Mr. Ogilvie. This was an English publication.
Mr. OGILVIE. No, sir; it was an American copyright publication, the plates of which were sent abroad and printed in England, and as a matter of contract the American copyright notice was eliminated.
The CHAIRMAN. The appellant was an Illinois corporation. That is the one you speak of?
Mr. OGILVIE. Yes, sir.
The CHAIRMAN (reading):
The appellant, an Illinois corporation, sent for the English book with intent to reprint it, and was about to publish it when restrained.
Mr. OGILVIE. "With intent to reprint it." That is merely the statement of the court.
The CHAIRMAN. I am reading the statement of the Supreme Court. Mr. OGILVIE. But we could not know until we got that book. The Supreme Court is not always right.
The CHAIRMAN. It says:
The English publishers agreed not to import any copies of their work into this country and also to use all reasonable means to prevent an importation by others, so that the appellee can not be said to have consented to the appellant's act. So far as appears, the only copies that have been brought over are the ones above mentioned and another purchased for use, but not for sale, by the president and manager of the appellant.
Mr. OGILVIE. Yes, sir; that is what the Supreme Court says, and I also have the decision here, and I will read another portion of it.
The appellee makes a strong argument that the appellant's importation was wrong; but it is hard to see how the right to copy a book, either lawfully or unlawfully imported, can be affected by the mode in which it got here.
Then the Supreme Court, in finishing, said:
We are satisfied that the statute does not require notice of the American copyright on books published abroad and sold only for use there.
Of which mental attitude the American public has no notice and absolutely no means of ascertaining.
The CHAIRMAN. But the Supreme Court goes on further and says: We agree with the parties that it is unnecessary to discuss nice questions as to when a foreign reprint may or may not be imported into the United States under the present provisions of our law.
Mr. OGILVIE. But that particular portion of it refers to a reference in our brief as to whether a piratical edition might be imported. It does not refer to this particular book.
However, that is beside the question. What I desire to have done is this: In speaking as a publisher, I may also say that I am speaking not only for myself but for other publishers, in that I probably shall never publish another book. I have recently been disposing of portions of my business. Another portion is for sale, and I intend to confine my operations entirely to certain books, the plates of which I now have. I am attempting, if possible, to prevent the trouble for other publishers into which our corporation got. It is a long story. Whether we got into it with knowledge or without is of no moment. The book was there.
The CHAIRMAN. Mr. Ogilvie, what suggestion have you to offer in relation to that notice?
Mr. OGILVIE. That the notice shall go in every copy of every edition published, wherever published.
The CHAIRMAN. In a foreign country or in this country?
Mr. OGILVIE. Anywhere on earth.
Representative CURRIER. Would you forfeit for the accidental omission in a single copy?
Mr. OGILVIE. No, sir; we have had that out before, Mr. Currier. Representative CURRIER. All right. You stand by that provision still?
Mr. GEORGE H. PUTNAM. Mr. Chairman, will you give me time to-morrow to speak in reference to that? It is a very important provision. I should like five minutes to-morrow.
The CHAIRMAN. Certainly.
Mr. OGILVIE. I would like, if Mr. Putnam is going to say anything about my remarks, to have him say them now, because after I left here in June last, or in December, Mr. Putnam made some statements with reference to remarks I had made which were not correct.
The CHAIRMAN. Mr. Ogilvie, you go right on now, and then Mr. Putnam can reply.
Mr. OGILVIE. I think every publisher in the United States who desires to be fair to his fellow publishers will agree with me that the only way that a man can tell whether a book is copyrighted or not is to have it contain a notice. If not, leave it out of all of them. Leave it out of every book published. Do not put any notice in at all, and make it go to the copyright office to get the information; but do not leave him "up in the air," as he will be left, some books with a notice and others without. How does he know? If a book is published under various titles and not filed in the copyright office, he can not find out, and if he can not find out and he takes extracts from the books that are not published it might bankrupt him. will not bankrupt me, because I do not intend to publish any more. books. [Laughter.]
I suggest where a book is published under a title varying from the one it originally had, it shall be obligatory upon the owner of the copyright to file in the copyright office a copy of such book, and if necessary charge a fee for the filing of that for the purpose of entering under the original entry and having a cross entry, so that one can get some information. As it is now, it is utterly impossible. You can not get any information in reference to it.
One of my friends, Mr. Johnson or Mr. Putnam, I have forgotten which one I think it was Mr. Putnam-spoke in regard to the obligation we were under to foreigners. The obligation we are under to foreigners in regard to the notice is exemplified by the decision in the English courts. The English law does not require the insertion of a copyright notice on books. It does, however, require the insertion of notice of reservation of public performance on copyright. A recent decision in England held that a copyright was invalid because it was an international copyright, and the owner of the copyright, a foreigner, had attempted to comply with the requirement as he understood it, in that he inserted the notice in a foreign language. The court held that was not a notice to Englishmen, whose rights were being protected, and that the copyright was not a valid copyright. Now, what would happen to a man if he went to England and attempted to enforce a copyright which was not obtained and lived up to in compliance with the English law? He would not have a copyright. What happens to him when he comes here? Under that Supreme Court decision an Englishman can do just exactly as he pleases outside of our country and come
here and use our courts to maintain rights that we, as American. citizens, do not possess ourselves. It is based on the American copyright notice, and we ought to have it on every copy, wherever it may be. What do these gentlemen want to leave it off for? What are they afraid of, I would like to know?
The CHAIRMAN. Mr. Putnam will tell you in a little while.
Mr. OGILVIE. I hope he will. (Laughter.] Mr. Putnam's information, some of which he gave you this morning, was very interesting to me. Mr. Putnam said that he published an edition of 5,000 books, and he trimmed them all. They were all this and that. He led you to believe it was impossible to find a book untrimmed and send it abroad. What on earth is there to prevent anybody who knows anything about manufacturing books and he claims to be an expert in the matter: printer, binder, publisher, member of the Authors' Copyright League, and several other things-folding up ten copies of a book, sewing it, if necessary, by hand, so that the book will not be damaged in any way and will not interfere with rebinding, putting a paper cover around it, and sending it abroad, and letting them rebind it there? Nothing in the world, and yet Mr. Putnam took almost ten minutes of your time telling you that it was impossible to do such a thing.
In reference to the affidavit section, I was going to say that I thought this was a copyright conference, but Mr. Currier's remark to Mr. Johnson almost makes me hesitate. I am inclined to think, however, that this is a conference for the purpose of relieving gentlemen who willfully commit perjury from the proper punishment for their crime. The bill reads:
Publishers who willfully make an affidavit for the purpose of producing a copyright in the United States shall be guilty of a misdemeanor and fined not to exceed $1,000.
I think a few stripes would look well on that sort of a gentleman. I do not see any reason why a man who pirates a book should go to the penitentiary and a man who commits perjury should stand outside and laugh at him. It seems to me if the affidavit clause is to be included at all it would be well to make the punishment fit the crime, as my friend Mr. Sulzer said this morning.
In reference to the question of renewals of copyrights, I took the position some time ago in reference to this matter that made Mr. Currier ask me if I was a publisher. I told him I was. He replied I was talking against my own interests. Apparently I was, but there was a little conscience mixed up in the matter.
I can see no reason, as a publisher, why I should be given an equitable interest in a copyright book for the production of which I have not paid a single penny. It is not an unusual thing in the book trade for authors who are comparatively unknown to pay for the cost of producing their first book-not merely the plates, but the entire edition; and should it prove a success in twenty-eight years, the gentleman who made a very favorable contract with that author then says to him, "Well, Mr. Smith, you can not get a copyright unless you permit me to continue to publish your book, and as it was your first book I did not pay you any royalty on it, or I paid you a very small sum."
Mr. Smith may be dead, or his widow may be dependent entirely on the sale of his books. Why should she not be given the opportunity to make a few thousand dollars more out of the publisher on
the product of the brain whose work he published without any cost to himself?
The publisher will say, "Well, it was our acumen that made it possible for him to become the author of one of the six best sellers." Possibly that had something to do with it, but if it is true, why not hire a hack writer at $10 a story and let him take the place of the author's brain in every instance? Why pay him any royalty at all? One of the gentlemen who favors this particular law, a music man in Chicago, connected with Lyon & Healey, when I told him it was rather strange that none of the so-called piratical publishers had been invited to any of the conferences, said, "When a man has a feast, he does not invite a lot of second-story men." Second-story men! Why, the man who formulated that means of swindling an author or his widow has not the courage to be a second-story man. He wants a groundfloor proposition every time, and will take absolutely no chances on it. It is iniquitous. It should never be enacted into a law; and I am surprised that Mr. Johnson, a gentleman connected with the Century Company, and claiming to represent thirty authors-who, by the bye, make as much noise almost as the 750,000 people who attended the Chicago day at the World's Fair should come here and advocate any such provision in a copyright law. I do not say that he, individually, or that the Century Company, or that my friend Mr. Putnam, would take advantage of an author, but there are men who would do it. Some of them may live in Chicago. I do notknow. Certainly some of them do live in New York, and they ought not to be given the opportunity to do any such thing as that under any form of law, copyright or anything else.
To summarize, I strongly urge that every copy of every American copyright book contain a copyright notice and that the renewals shall be the property of the author. What about the author's constitutional right? Is it not taking away from him the right of contract? I think it is. I am not a constitutional lawyer. I do not know very much law, but I have an idea or two about the publisher's business. Mr. Johnson said he believed the American workingman was cutting off his nose to spite his face, but in this proposed renewal business he does not cut off his nose. He cuts off his head. He does not give him a chance to live at all. I do not think it is fair or proper, and I do not believe this committee will advocate putting in the proposed copyright law any such conditions.
STATEMENT OF MR. GEORGE HAVEN PUTNAM, SECRETARY AMERICAN PUBLISHERS' COPYRIGHT LEAGUE.
Mr. PUTNAM. I will try and give a very few words to the points more particularly that have not been touched upon to-day in regard to that matter, and that is the most urgent matter that has been raised by the gentleman who has just spoken, who told us very frankly he spoke on y for himse f.
You gentlemen are our lawmakers, and, as we who are interested in this very troublesome subject of copyrights know, you are conscientious lawmakers. You are lawmakers for the United States and for the dependencies under the control of the United States. I do not assume you would undertake to make law that should be held to apply to any people, citizens, or residents, or others who are not subject to the laws of the United States.