Senator HICKENLOOPER. The next witness is Mr. Sam B. Warner of Guilford, Conn., former Register of Copyrights.

STATEMENT OF SAM B. WARNER, GUILFORD, CONN.

Mr. WARNER. Gentlemen, I was notified of this hearing just a short while ago, too short a time to enable me to make a short statement.

I was notified by Mr. Strackbein and asked, because he knew that my views, although not identical with his, nevertheless I was on the same side of this issue as he was; I declined to come down here at his expense or to accept any fee from anyone for coming down, so I have come completely at my own expense, and I represent no one but myself.

My experience in this field has gone back many years. I was for many years research professor at Harvard, who had in my work there to deal with many foreign works.

Then, I was in the planning section of the OSS for a considerable period during the war, where I had to deal with the effect of our knowledge of foreign countries on what we could do to try to win the minds of the people in those countries; and then for 5 years I was United States Register of Copyrights, and since then I have been working on the history of copyright in the United States and of our relations with other countries.

I want to present a point of view which I expressed in my article on this convention printed in Wisconsin, in the Wisconsin Law Review, in May 1952, which is quite different from that presented by anyone on either side today.

ASPECTS OF UNITED STATES COPYRIGHT LAW

I think if we ratified this convention we would seriously hinder ourselves in any cold or hot war we had with Russia or any other Communist nation.

If you will permit me to explain why I believe that is so, the United States copyright law is based upon the theory that blocks should be put in your way to get a copyright. In order to get a copyright you must put a notice in the work; you must send copies to the Register of Copyrights; you must pay a fee.

Most American publishers and authors do not do that. I believe that of all the 10 to 15 to 20 thousand newspapers, dailies, and weeklies, published in the United States, only 67 at this time have copyright protection.

No work published by the United States Government can have copyright protection. Practically speaking, no work by any State or municipality or country ever gets copyright protection.

Of the pamphlets and magazines published in the United States, the great majority do not have copyright protection. So if I was askedand I was during the war-to find out about conditions in a foreign country, I can get access to everything written in the United States on it, without having to go to any author and get his permission or any publisher and get his permission. That actually saved me an enormous amount of time in my work in the planning section of the OSS during the Second World War.

Further, the number of foreign works that are copyrighted in the United States are infinitesimal, very, very few in number.

In general, you may say that American copyright is limited to books in the book trade. I am not referring to things like pamphlets and things like this, but I am thinking of novels and large works, and works of music, motion picture and such.

So that as a research man who is trying to find out, as I was at one time during the war, what the situation was in Yugoslavia, I could get access to, free from copyright restrictions, everything in the United States written in any language, concerning Yugoslavia.

Senator HICKENLOOPER. Why couldn't you have access to them anyway?

Mr. WARNER. The Library of Congress, sir, will give you reprints of many things. They will not give you a reprint of anything under copyright.

Senator HICKENLOOPER. I understand, but so far you could have access to them.

Mr. WARNER. You mean I could come to the Library of Congress and read it, if I knew the language. I would not be permitted, of course, to make a copy. I would not be permitted to get anyone to translate it unless I got the permission as a Government worker.

Senator HICKENLOOPER. I understand what you mean.

Mr. WARNER. As a professor at Harvard, as I was for a good part of the time, I could not get any such permission.

Now, if we joined this convention, what it will mean will be that by the simple process of putting a C in a circle, newspapers, magazines, pamphlets like this, anything, full copyright protection will be had in the United States. Perhaps an illustration will make clear what I mean and why this bothers me.

PROTECTION AFFORDED COMMUNIST WORKS

Let us suppose that in spite of the very heavy restrictions which the Communists have, the Library of Congress succeeds in getting out of Czechoslovakia a consignment of newspapers, pamphlets, books, literary things. Now, we say that there would be no danger of Czechoslovakia ever joining this Universal Copyright Convention.

We all know that the Communist countries are doing everything in their power to keep works concerning their countries out of the United States and other free countries. We know that many of those countries have kept their membership in Berne, and I think if they believe that they can keep books from us by joining this Universal Copyright Convention, they have everything to gain by doing so.

Of course, as far as American works in their country is concerned, whether they would give them any protection or not, is something we would never be able to find out. Let us suppose there has arrived in the United States in the Library of Congress this consignment.

The first thing we would want to do would be to list it. That could be done under the present copyright law or under the Universal Convention.

The next thing you would want to do would be to make summaries of it. That can be done under the present law, as I read it, because they would not be copyrighted in the United States. If they were copyrighted in the United States, summaries, except to the very smallest sort, could not lawfully be made.

The next thing we would want to do is to get photostats of them. The Library of Congress will not give you any photostats of any copyrighted work. So if we entered this convention, all efforts of those of us who are not living in Washington and want photostats of foreign works, would, if the works had a C in a circle on them, come to an end.

The next thing we would want to do would be to get them translated. Again you would have to get the permission of the foreign author or publisher, and I assume that if the work was behind the Iron Curtain country, that would be absolutely impossible.

When I was at Harvard, I said I had to deal with foreign literature considerably. I tried upon a number of occasions to get permission to use small quotations from foreign works, not that I was required to by law, but I thought that was the courteous and proper thing to do. I never got an answer to any of the letters I wrote abroad with that in view.

Now, that may have been the discourtesy of foreign authors and publishers, but I think it is just as likely that I was interested in pamphlet material, not great, big bound books, and I suspect that the publisher of the pamphlet very likely had gone out of business or changed his address before he received my letter.

The pamphlets were often several years old before I located them, so that was why I did not get my answers.

POSSIBLE HINDRANCE OF COPYRIGHT CONVENTION

So, my first, my primary, objection to this is that I, as a person who spent a good many years of my life trying to help the United States Government in the propaganda field abroad and in securing information about conditions in foreign countries to help us in the war, would be, if another war came and I again tried the same thing, very much hindered, hindered in my work, and if we are going to have a proper basis for understanding the conditions of all the countries in the world so we can wage a successful war for the minds of men, and get these people to want to be democratic countries, this is not something which a dozen or a hundred people in the employ of a government here in Washington can do. It must be based on research all over the United States, and so, on the free access to scholars all over the country of these materials.

If that is true as to the United States, you may ask why England is not in the same dilemma with regard to the Berne Convention. That is due to the difference between the United States copyright law and the copyright law of most of the rest of the world.

As I said, we make it hard to get copyright. For instance, I was asked by Mr. Clapp here this morning why I did not copyright a little newspaper I published, and I said it would cost me $4 a week, and it was not worth it. That, I take it, is the same answer why 10,000 other American newspaper publishers do not, and that is the same answer that they give.

Senator HICKENLOOPER. I think you are raising a very interesting point, Mr. Warner. As I understand your theory, it is that any foreign publisher under this treaty and under the proposed statute can, by merely putting the symbol C in a circle on its publication and the name of the author or producer of that publication, secure

the protection of our copyright laws, and we could not reproduce pictures from any foreign magazine to illustrate what is going on in that country or anything of that kind unless we violated the copyright laws.

Mr. WARNER. I think that is very clear, both from the Act itself and from what everyone said this morning.

DIFFERENCE BETWEEN BRITISH AND AMERICAN COPYRIGHT LAW

But I want to go on, if I may, and explain why that does not hurt England the way it does us.

I say we make it hard to get copyright, but once you have gotten copyright, we make recovery easy. We have statutory damages.

Now, let us suppose I walk into the Library of Congress and I copy something, and let us suppose the author or the copyright owner is sitting right there and seeing me do it. In the United States he could sue me for violating copyright, and get heavy statutory damages. It has been done.

In England he could not do so because in England there are no statutory damages. The copyright proprietor could only get the damages which he can prove and, of course, he could not prove any damages in that case.

If you take the number of English copyright cases and the number of American copyright cases, there are pretty nearly a hundred American copyright cases for every one in the British courts. It is because only the man who is damaged, actually damaged, can sue in England, but that is not necessary in the United States.

Further, in England and in the Berne countries, they have a very broad view as to what constitutes fair use, whereas we have a very narrow doctrine of fair use.

You will see in this article which I wrote, a statement of the English law of fair use as compared with the American law of fair use. Now, you see, you can do either of two things and come out, in my opinion, with a perfectly satisfactory copyright law. You can make it hard to get copyright and easy to recover damages for violation of copyright, or you can make copyright automatic, with nothing in the book, as the English do, or with merely a C in the circle, as is proposed, but if you do that then you must have things to make it hard to recover or you will do away with the public domain and put, in my mind, an intolerable burden on scholars which I think, is very important in this day of the cold war, but important anyway.

MODIFICATION OF PRESENT BILL

Senator HICKENLOOPER. Let me ask you this, Mr. Warner: Do you think that that situation might be solved by the insertion of some provision along the line that while certain copyright protection could be given by putting a symbol on a document with the name of the producer, nevertheless, the freedom to reproduce for certain purposes would be granted unless the copyright holder proceeded further and paid a fee to protect his copyright under the complete provisions of the copyright law?

I mean from your judgment, would it be feasible at all to so word a statute that would give at least protection under certain circumstances, but permit serious uses which you have referred to here?

Mr. WARNER. I think you would have to be very careful in going over your statute or you get into a very difficult messy situation. But, of course, it is perfectly feasible to repeal the United States statutory damage provision and to change the fair use provision. If those two things done then I would have no objection to this other, because then the works of the world would be made available to American scholarship just as they are to British scholarship?

You see, the evil in this thing, to my mind, is that you would first go and make your convention, and then you come to Congress to get the law changed, instead of first getting the law changed, and then doing your convention.

I was one of the witnesses at the meeting 2 years ago, and the last witness here quoted my testimony at that time. That is my primary interest in this thing.

COMPETITION OF SCHOLARS

However, as I have been for the last 2 years a publisher and, I, as a Register of Copyrights, took part in the negotiations leading up to Winston Churchill's copyright, I, perhaps, could answer any questions, if you wish, concerning what happened then, and concerning why it is that books cost about double in the retail market in New York, the same book, that it does in the retail market in London, but I want to say one other thing, if I may.

As a Harvard law professor, anything which I wrote in my field, I was in competition not only with all the authors in the United States, but all experts in my field in England, Canada, Australia, and all over the world.

Supposing it was desired to get an article on a certain subject or to get a book on a certain subject? An American university could get it from me or they could get it from an Englishman. Now, these scientific books and the scientific pamphlets, sell very badly. The cost is a very vital matter, and if a university could save 50 percent of its cost or thereabouts by getting this work printed abroad rather than printed in the United States, and done by an Oxford professor rather than by me, I think the temptation to get the Oxford professor to write it rather than to get me to write it would be very great.

But showing how these things go, I have had works, I have written works for Oxford University or Cambridge University, I would say, and had them printed abroad because that is where Cambridge University wanted them printed.

But I think there was a very real competition from the point of view of American scholars with scholars all over the world, and I think if we have a great difference in the cost of getting an American scholar's work published in this country or a foreign scholar's work published abroad and sold in this country, it will work very badly from the point of view of the American scholars.

DIFFERENCES IN COST OF PRINTING

Now, as to the situation of the printer, the cost in printing a book is largely in setting the type and in setting the press. After you have done that, you can run off thousands of copies for very little more cost than could run off one copy, so that if we have a work that we want

you