members of the British Commonwealth, for example, works of certain nonnationals in the public domain, while in their unpublished state, are capable of restoration to protection when they become first published in any Berne union country. This condition exists today in the member countries of the British Commonwealth, irrespective of the provisions of the convention, and will likely continue whether or not the United States participates in the UCC. The UCC does not create this condition, it merely recognizes it.

Lastly, criticism has been made that the UCC will give protection to published works of Iron Curtain country nationals. Such advantages which the Iron Curtain country nationals would enjoy under the UCC, they now enjoy and have long enjoyed substantially under the Berne convention, as have United States nationals, without their countries being members of the Berne union. It is true that if a national of an Iron Curtain country were to first publish his work in a member country of the UCC with appropriate copyright notice, the United States, as well as other member countries, would be obligated to accord copyright protection to such work. This follows a long existing principle of the Berne convention, whereby a work can take on a Berne nationality, so to speak, by being first published in a Berne union country, even though the author is not a national of a member of the union. It must be recognized that United States nationals have taken advantage of this principle of the Berne convention for generations and have secured the copyright protection of the Berne convention, although the United States has never been a member of the Berne convention and has repeatedly refused to join it. Furthermore, we have heard of no outery from the Berne union countries of any gross disadvantage that was being taken by nationals of Iron Curtain countries making first publications in a country of the Berne union.

It may also be observed that nationals of Iron Curtain countries have for generations been afforded protection in the United States under the common law of various of our States to their unpublished works, even though we have had no copyright relations with their countries.

In conclusion, the convention was not hastily conceived. Years of expert labor went into its preparation. The overwhelming majority of those who have studied it do not consider it to be ill-advised.

The convention has been the subject of extended study by committees of bar associations, who have approved it with virtual unanimity. The objections now raised on behalf of certain motion-picture companies were before these professional groups and rejected by them.

I respectfully refer to the printed report of the committee on international copyrights to the section of patent, trade-mark, and copyright law of the American Bar Association (1953), a copy of which is attached hereto. This unanimous report of a 15-man committee, was approved by the section at its 1953 annual meeting, and on March 8, 1954, by the house of delegates of the American Bar Association (upon joint motion of this section and of the section of international and comparative law). The resolution so adopted by the American Bar Association endorsed ratification of the Universal Copyright Convention by the United States, with such necessary enabling legislation as would serve to effectuate its purposes.

I find satisfaction in associating myself with the Secretary of State in behalf of the Department of State, the Librarian of Congress, the Register of Copyrights, the Assistant Secretary of the Department of Commerce, the American Bar Association, and other bar groups, as well as the representatives of other interested industry associations who have urged favorable action on the Universal Copyright Convention and the necessary implementing legislation, Respectfully submitted.

ADOLPH SCHIMEL.

MCCAULEY & HENRY,

New York, N. Y., March 31, 1954.

Hon. WILLIAM LANGER,

Chairman, Senate Judiciary Committee,

Senate Office Building, Washington 25, D. C.

DEAR SENATOR LANGER: We are general counsel to The Hearst Corp. Our client publishes, directly or through its subsidiaries, 18 newspapers and 9 magazines. It also owns and operates King Features Syndicate as well as International News Service. It is clear, therefore, that our client has a direct and substantial interest in the dissemination of intelligence, an interest, we believe, completely congruent with the public interest in that area.

We write you relative to the Universal Copyright Convention (Geneva 1952) and bills (H. R. 6670 and S. 2559) implemental thereto. Our purpose in so doing is to record our support of said convention and bills and strongly to urge its ratification and their enactment.

Our position in this matter is not motivated by any conceivable economic advantage to our client. Whether American newspaper and magazine publishers will materially gain or lose by universalizing copyright protection in the manner and to the extent contemplated by the convention is at best problematical. In any event, we think there are overriding considerations of international good faith and good will, especially within the community of likeminded free peoples, which should and do move us to express our approval of the fundamental principles embodied in the convention.

During the first hundred years of its Federal copyright history, the United States had taken a narrow and provincial-minded view of international copyright. Quite apart from its morally corrosive effect resulting from the literary piracy here of foreign works, such view, practically considered, did not matter too much while the United States imported more than it exported of things cultural. However, in 1891, on the basis of reciprocity evidenced by the Presidential proclamation, we recognized the eligibility of nondomiciled alien authors for the benefits of our Copyright Act "on substantially the same basis" as Americans, and for the past sixty odd years that, in substance, has been the standard of treatment of such authors. Although the door of our domestic copyright law has thus opened, the alien authors still must comply with the technical applicable provisions of that law in order to secure its protection. Among the technical requirements are those pertaining to notice of copyright and the American manufacture of books and periodicals, the original text of which is in the English language.

The other face of the medal of international copyright is how and to what extent are the works of our American authors protected in foreign countries, especially in those which are members of the so-called Berne International Copyright Union. Although such union has been in effect, subject to periodic revisions, for upward of 60 years the United States has refused to join it. Of course, we have had cogent reasons for not joining, not the least of which being the critical difference in copyright theory and purpose between that articulated by Berne and our American act. Despite our refusal to become a party to the Berne system, our American authors have been able, with varying success, to gain the benefits of that system by simultaneous first publication in a unionist country. Such so-called back-door approach has seemed to many unfair and unworthy of the United States and it has caused rumblings over the years of retaliatory action against the United States by one or more of the Berne countries. Such retaliation could eventuate but it has not to date and we mention it only as a make-weight argument.

The Universal Convention grew out of long, hard, and careful studies and discussions of experts, among whom were eminently qualified Americans. Not only did an appreciable amount of American way of thinking about copyright, with its due regard for the public interest, go into those deliberations, but it also emerged therefrom in the draft of the convention itself. The convention's draftsmen sought, and we believe succeeded, in effecting a reasonable adjustment of the two competing copyright systems: the one of Berne with its emphasis on protection springing, without formality, from intellectual creation, and the other, our own, also deriving from authorship but dependent upon notice to the public.

We submit that the Universal Convention would accomplish, in the field of international copyright, certain desirable ends: Firstly, it would apply the doctrine of national treatment, subject to the raising of such treatment to the level of minimum protection as to translation and duration of copyright; secondly, it would bring this about with a minimum of formality, such as a single form of simplified copyright notice reasonably placed on all authorizedly published copies. By virtue of the national treatment rule each adherent nation would grant to copyrightable foreign works "the same protection" granted "to works of its own nationals first published in its own territory." Clearly such national treatment principle avoids invidious discrimination against foreign works. It is a principle familiar to American copyright law since, as adverted to above, it constitutes one of the grounds of the reciprocal copyright relations with proclaimed countries.

Admittedly, to carry out the Universal Convention would require certain changes in the United States Copyright Act in relation to such foreign works as come within the reach of that convention. None of such changes, however,

would be too radical. None of such changes would be unduly prejudicial to American interests. The most significant of such changes would be in not subjecting any of those particular works to the manufacturing provisions of our act. Any real adverse effect of such exemption would seem illusory, especially in view of the high competence and efficiency of the American printing trades. All in all, the Universal Convention appears to us a reasonable and workable system deserving of approval. Many detailed arguments in favor of it could be marshaled. Doubtless such arguments have already been presented to you and we shall not attempt a repetition in that regard.

Quite simply stated, what strongly appeals to us is the fact that this convention would greatly enlarge the area of effective and uniform operation of the moral law of compensation: If we would have the works of our own authors accorded copyright protection in foreign countries, within the framework of national treatment, but without burdensome and technical conditions, we should do the same for foreign works. Because it is right to do so, we create international good will thereby. The adoption of this convention, we believe, should deepen and make more durable the ties that bind us to our friends abroad-those nations which labor, as do we, in the vineyard of freedom.

We trust you will favorably consider the convention and vote for its ratification as well as for the domestic legislation necessary to conform our Copyright Act to it.

Respectfully yours,

MCCAULEY & HENRY, By ALFRED H. WASSERMAN.

STATEMENT OF THE AMERICAN BAR ASSOCIATION SECTION OF PATENT, TRADE-MARK AND COPYRIGHT LAW

Reprinted from 1953 committee reports to be presented at the annual meeting to be held August 22-26, 1953, Boston, Mass.

REPORT OF THE COMMITTEE ON INTERNATIONAL COPYRIGHTS

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It is the view of your entire committee that, at this stage, this report should primarily serve: to analyze the convention for the section; to indicate what it purports to accomplish and the means taken and which will have to be taken for so doing, in the light of the presently existing state of the international copyright relationships of the United States; and to evaluate, on the information thus far available to the committee, the advantages claimed by the convention, as well as such criticisms as may have come to its attention. There have been as yet no public hearings of any kind.

The United States, as a great creditor nation, has not only become a world economic power in the field of tangible properties, but the intellectual and artistic creations of its nationals are achieving worldwide circulation among the free nations. Incorporeal as they may be, the latter nevertheless represent property investments on a tremendous scale which circulate in world commerce, and return hundreds of millions of dollars annually to the United States. The United States in turn is a great market for the intellectual and artistic properties originating in other countries. It is self-evident that an international arrangement which could harmonize our own copyright system with the systems of many other countries, by finding a modus vivendi acceptable to all, is most desirable. Such a goal is surely to be looked upon most sympathetically, even though substantive advances in the law of copyright may necessarily have to be kept at a minimum to achieve some agreement at this stage. Our Government has recognized that an international copyright convention, in which the United States could play an active part with other nations, is an important part of the foreign policy of the United States. This has been evidenced by the resources of the Government which our Department of State has put behind the project of obtaining a Universal Copyright Convention. It is significant that delegations of other governments, appreciating the serious effort undertaken by the United States, cooperated to reach an agreement which all might find acceptable, by making great concessions toward accommodating their systems to that of the United States. It would be highly embarrassing now to retreat from this effort. It would not be justified unless there were overwhelming indication of serious injury to United States nationals.

In general, the members of your committee unanimously approve in principle the Universal Copyright Convention as adopted in Geneva in 1952. Realizing the staggering task of drafting such a highly technical instrument, by way of open debate on each phrase by the delegates of over twoscore nations speaking in various languages, and yet reaching agreement, it is appreciated that there had to be some compromises and obviously some ambiguities. On balance, your committee is unanimously of the view that the conference achieved a notable result in harmonizing to considerable extent the existing copyright systems of the United States and many other countries of the world on a reciprocal national treatment basis, and that it is in the interest of United States citizens to be a party thereto.

Such criticism as your committee has thus far encountered, appears, on the one hand, to be directed to the fact that the convention did not create a new substantive system of copyright for a new electronic age, and, on the other, that it has failed to correct some existing situations in certain countries such as their subsequent restoration to copyright protection of works previously in the public domain. As to the first type of criticism, it must be understood that it was not the purpose of the convention to create a whole new worldwide substantive system, but to harmonize existing systems into a workable international arrangement to which the United States and the other countries of the world could belong (realizing that the United States would not join the Berne Union). To have followed counsels of perfection would have meant, in reality, no attainable international arrangement in the foreseeable future. There is no reason why the convention should not make advances in the future, once it is established and functioning. As to the other criticism, the same would seem to have been made without an appreciation of the fact that the conditions criticized are not the creation of the convention, but exist today in many important countries without the convention. Works unprotectable in their unpublished stage in many countries, for example (because of the nationality of the author or owner), and thus in the public domain there, are subsequently lifted from the public domain and become protected under copyright upon first publication in that country, or in another Berne Union country if it is a member of the union. In the United States, on the other hand, the unpublished works of nondomiciled nationals of Russia or Turkey, with which we have no reciprocal relations, are not in our public domain while unpublished, being protectable at common law, but would fall into our public domain upon first publication, since statutory copyright is unavailable to them.

Of course, if detractors of the convention will make invalid assumptions of what the convention purports to and does do, as a basic premise from which to launch all sorts of conjectures as to the confusion which may thereby be created, the Universal Copyright Convention could be reduced to absurdities. It is important to recognize the fallacious premises upon which such assumptions are based and this will be indicated to some extent in the later discussion of definition of "publication" under article VI.

It is in general the view of your committee that the changes which would be effected by the convention from the existing situation, insofar as the United States is concerned, are not fundamentally of any disadvantageous or injurious nature. Our international relationships today, such as they may be, are predicated upon reciprocal national treatment. That is essentially what the Universal Copyright Convention provides, but on a simplified basis. The advantages afforded by the convention, however, would be very great indeed in the easier protection of substantial American copyright interests abroad, under an international agreement where we can hold our heads erect as a contracting state in company with other nations, instead of continuing to attempt to secure international protection for many of our important American works, through a back door to the Bern Union to which we refuse to become an adherent.

I. THE IMPACT UPON UNITED STATES INTERESTS

By the United States becoming a party to this international copyright convention, there is a threefold impact upon United States interests to be considered. First, there are obviously the rights and remedies to be acquired abroad by our United States authors or owners of literary and artistic properties (published as well as unpublished), in the dissemination and marketing of their works in foreign countries. We are today great exporters of our intel

lectual creations and properties. We need to insure protection for our works abroad.

Secondly, there are the duties and liabilities imposed on our own citizens and domiciliaries within the United States, with respect to works of nonnationals originating outside the United States, and which will come under protection here. Thirdly, there is the general public interest, apart from the direct interests of individual owners or users of the works in the United States, in the availability, encouragement, protection and interchange of intellectual creations of all nations, from an international as well as a domestic viewpoint. The notion that it might be in the interests of United States nationals to have such a difficult and restrictive system for protection of works of foreign origin here, so as to throw many of them into our public domain, and make them available for free usage, would not seem to have practical or moral justification to your committee. This is a two-edged sword that can cut against United States interests in foreign countries. Furthermore, even domestic users, publishers or producers who desire exclusive rights for source materials of foreign origin, for publications or productions in which great investment may be made domestically, would often rather have clarity and certainty in the rights as to such source materials, as well as acquire exclusive rights thereto, than rely upon the same being questionable public domain material freely available to all comers.

The Universal Copyright Convention is not merely concerned with what would ordinarily be considered our statutory copyrighted works. It is concerned with both published and unpublished works. The published works of course include those for which our only protection is under statutory copyright. The other category, unpublished works, comprehends not only (1) the sometimes so-called unpublished works of certain limited groups (dramas, musical compositions, dramaticomusical compositions, motion pictures, photographs, etc.) for which statutory copyright may be secured under title 17, section 12, by deposit in the Copyright Office when not reproduced in copies for sale, and which must be reregistered with deposit of two published copies if subsequently generally published in the statutory manner, but (2) works protected under the common law in various of our States (and under the statutory law of some) prior to first dedicatory publication.

The convention expressly provides that "in each contracting State there shall be a legal means of protecting without formalities the unpublished works of nationals of other contracting States" (art. III, subdivision 4). The United States already has a regime under the common and statutory law of various of its States to protect works which have not had a dedicatory first publication. Whether such regime is complete enough has been questioned. Under statutory copyright the United States also protects certain special classes of works copyrightable by deposit, prior to general publication, under section 12 (which the convention recognizes in its provisions for copyright term, art. IV, subdivision 2). Of course, works generally published, with appropriate statutory notice of copyright, under section 10, are protected.

The language of the above provision of article III, subdivision 4, seems to have been purposefully vague. The United States delegation explained our commonlaw system of protection under State law for unpublished works, as well as our Federal statutory system for certain types of work not reproduced in copies for sale or general distribution, by way of the formality of a deposit in the Copyright Office under section 12 (Sir John Blake's report on art. IV). It has been suggested that if certain of the States of the United States do not now or will not in the future protect unpublished works of nonnationals, our Federal Government will not be in a position "to insure the application of this convention," as required by article X, prior to deposit of its ratification. The convention not being self-executing, a question may arise as to whether it is binding upon the States. The Government having no power over State law, there might possibly be ground for application to the International Court of Justice, under article XV, to settle disputes over protection denied to a nonnational for his unpublished work.

Mr. Leonard Zissu, of our committee, who is fully in accord with and has signed this report, feels strongly that the contention of some opponents of the convention that the United States cannot insure protection for unpublished works, is without foundation. He has submitted a special addendum, hereto included, on this question.

While such theoretical speculations are interesting, those States in which protection has been sought long have protected rights in unpublished works either