Now, Mr. Harding, we will give you 5 minutes if you would like to talk at this time. That is as much time as we will have. I understand from talking with you that probably the matters you have in mind are matters over which we have no jurisdiction, but we will be glad to give you 5 minutes.

STATEMENT OF HENRY C. HARDING, WASHINGTON, D. C., ON BEHALF OF THE INDEPENDENT SONG WRITERS OF AMERICA

Mr. HARDING. My name is Henry C. Harding; I am speaking on behalf of the independent song writers of America.

Mr. Chairman and members of the committee, I really did not expect this privilege this morning. I did, however, some time ago, expect to be given a hearing. What I have to say does not exactly bear upon copyright, altogether.

As the representative of several song writers throughout the United States of America, I have been trying to get over some songs with the music publishers of New York City and I have not found, have not had the privilege of getting over a one of them, and I would like to say that I sent 100 planograph copies up there of a song entitled "Underneath the Stars at Waikiki." I claim this song is a hit and should be on the market. It is not the only song I have sent up there.

This song was sent to the music publishers of New York City, the radio artists, the N. B. C. chain, and the C. B. S. chain, and also to the Hollywood studios. I have struggled for 5 years to get my songs on the market, and I am really at the present time disgusted with the situation; that is, the New York music publishers and the radio artists have a crooked, closed monopoly. I say that with all sincerity of purpose. I have taken the liberty at the present time to file my application or brief with the Federal Trade Commission to break up that crooked, closed monopoly.

There are thousands and thousands of song writers in the United States of America and there is no reason in God's world why their songs should not be on the market. It is simply because they have a greedy and selfish purpose up in New York City. And I shall continue to try to accomplish the purpose of breaking up this crooked, closed monopoly.

At the present time, I am perfectly willing to do business with the New York publishers or the Hollywood studios, and will continue to work in their interest; but I cannot understand why they have taken such action toward outside writers. I might say I not only sent those 100 planograph copies up to the publishers, to the radio artists, and Hollywood studios, but I made a trip up there to see them in person. I hitch-hiked up there; I did not have any money, did not have any job, but I had songs and I knew they were worth money, and I went up there to see those fellows personallythe New York publishers. They claimed they did not take songs from outside sources. I had a letter from Colonel Snyder, the manager, and I was given the liberty to play those songs over there, and they said I might continue to send songs up to New York City. But I did not say whether I would or would not, because I told them I was very anxious to get a contract, that I needed money, and needed it very bad.

I came on back here to Washington and sent several other songs up there that I knew were hits and they will have to prove to me yet that they are not hits, because if they do not take the songs themselves I expect to have them published in a national way myself.

And I surely hope that the members of the committee will do everything in their power to break up this unscrupulous, crooked monopoly which exists through the New York music publishers and the Hollywood studios. They are all tied up the radio artists and the chains are all tied up with the crooked, closed monopoly.

I thank you very much.

Mr. LANHAM. Thank you, Mr. Harding. Now, is Mr. Hanson present? (No response.)

(Mr. Hanson, engaged in a legal case, was unable to be present; he later filed a brief.)

Mr. LANHAM. All right, Mr. Burkan, we will hear you now.

FURTHER STATEMENT OF NATHAN BURKAN

Mr. BURKAN. Mr. Chairman, I wish to express our deep appreciation for your great courtesy in extending me a little time to analyze this bill with respect to its legal aspects.

Much has been said concerning the advisability of this Nation's adhering to the Bern Convention in order to furnish the Department of State with some implement, some weapon, whereby this constant enactment of laws, issuance of decrees, orders and bans, restrictions, contingents, quotas, and other measures, concerning which much has been said here, on the part of foreign nations, could be dealt with.

I might at the outset say to this committee that all the quotas, contingents, bans, restrictions, and conditions that have been imposed by foreign nations have not been imposed strictly against American works, but they have been imposed and they apply to nationals of Bern Convention members. In the case of the sanctions that England applied against Italy on account of her invasion of Ethiopia, Italy promptly retaliated against Great Britain by prohibiting the distribution in Italy of British-made pictures or British works of any kind. Now both are charter members of the Bern Convention-both Italy and England.

Now if the Department of State wants a weapon and it is really in earnest, as a weapon I might call attention to the Sirovich bill on page 8, lines 8 to 25, and page 9, lines 1 to 20, which provide that whenever the President of the United States finds that any company imposes prohibitions and restrictions and conditions and limitations upon the free exercise of rights in the copyright in any country, which he shall find to be discriminatory, unreasonable, or injurious to the commerdial interests of the United States and its citizens, he shall by proclamation apply similar measures to works of the nationals of this and that particular country. And he may go further and apply additional measures, and he may go further and he may revoke all of the proclamations now in existence under which these foreign nationals secure copyright in this Nation. In simple language, that is a retaliatory act whereby, if the President finds as a fact that discriminatory practices are indulged in in certain

foreign nations, he can, by a simple proclamation, without further ado, put an effectual stop to what we claim to be a grievous thing. That is much better than attempting, under the provisions of the Bern Convention, to bring the flagrant violator to account. Nothing happens under the Bern Convention. There is no machinery for bringing the violator to account. Nothing is done, except to complain to the secretariat of the convention, who sends a communication to the offending country and every other country, and then a lot of correspondence ensues and that is where it ends. Nothing happens. That is what happened in the case of Germany, Italy, Austria, and some of these other countries.

I am very glad that Mr. McClure told you this morning that we are not committed to the revisions which will take place in Brussels, and he says that is a matter for us to decide as to whether or not we are going to accept that revision, and he tells you there are some nations that have subscribed to the original convention held in 1886, some are adhering only to the Bern Convention of 1912, and some to the Rome Convention of 1928, and some will adhere to the convention of 1936 at Brussels. Now imagine, for instance, the United States setting up separate laws for each country with which we have treaties so that a Federal judge, in attempting to enforce the rights of a foreigner, would have to look to the treaty between the United States and that particular foreign nation of which that foreigner is a national. You would have a multiplicity of rights under foreign cases and I prophesy that those foreign countries are going to get tired of it; because their courts, in trying to treat each national of the various countries adhering to the various revisions, will create a complete chaos and confusion in the administration of the copyright laws. And the day is fast approaching when they all will have to adhere to this Brussels Convention, because the claim will be made that the old provisions are archaic and out of step and out of line with the present trend of thought.

Furthermore, that is a matter of grave importance to you gentlemen here. This bill has been offered because they say it is a supporting piece of legislation, it is an enabling act. Well, I tell you now, if the Brussels revision goes through, you will never see it; because it is going to go to the Senate; it will be ratified there and that is that. It will be recommended by our delegates sitting in that conference on September 7, 1936, in Brussels; they will, in all probability, approve it and it will go to the Senate and that is that. You will never see it; you will never have a chance to discuss it. And this question of copyright legislation has always been one of the sacred functions, one of the great functions of the House of Representatives and, as a matter of fact, history will prove that most copyright legislation initiated right here in the House of Representatives. They have been closer to the people when it comes to copyright protection than the Senate has been at any time in the history of this Nation, and this House should jealously insist upon having a voice in the enactment of all copyright legislation. And the Bern Convention and the various revisions mean a transfer of that activity from the House entirely to the Senate.

What is this Bern Convention. It is a little bit more than a treaty; it is an organic law. It is like a constitution, and, in some of its provisions, it requires domestic legislation upon the part of the

signatory powers and, in other respects, it is mandatory and obligatory and it is a law unto itself and there can be no departure from its provisions by the domestic legislatures of the several nations that sign it.

Of course, in theory, that is a benefit; that is the ideal, but in practice we know what has happened in practically all of the signatory countries to the convention. The convention has been honored by its breach and not by its observance. And Dr. McClure told you that all the convention does and all it guarantees is simply the enjoyment of copyright, that it prevents piracy in the country and has nothing to do with the exercise of the rights secured by a copyright. Because all that has been complained of here by the motion-picture people and by the others, whose rights have been violated by the various laws and decrees of those foreign nations, they say:

Well, that simply involves an infringement of the right to exercise rights, but you are protected in your copyright.

Now, let us see what the convention says. It is not just limited to the enjoyment of the copyright. Article IV, subdivision 1 of that convention, in very precise language, says the following:

Authors who are nationals of any of the countries of the Union shall enjoy in countries other than the country of origin of the work, for their works, whether unpublished or first published in a country of the Union, the rights which the respective laws do now or may hereafter grant to natives, as well as the rights specially granted by the present convention.

Then it says:

The enjoyment and the exercise of these rights shall not be subject to the performance of any formality

So that you get not only the right in a copyright, a copyright itself, but the right to exercise rights under a copyright.

Much has been said as to whether or not this treaty is a selfexecuting treaty. I take the position supported by authority, and I cite Chief Justice Marshall in support of my contention, that this treaty by its terms is self-executing. And you all know that under the Constitution a treaty is the supreme law of the land and the judges of all of the States are bound to observe it. This treaty needs no enabling legislation and, furthermore, by this very bill, by paragraph 29 of the Duffy bill, page 30, section 29, it provides:

That nothing in this act shall be construed as in contravention of any obligation of the United States existing by virtue of any treaty to which the United States is a party.

This treaty is supreme and this treaty governs every word and every letter and every article and paragraph of this bill if it becomes enacted into law, and it states so specifically in this very bill. And what object do they have in mind save and except there was anything here found to be in conflict with the treaty, that the treaty should govern and control, and that was the very purpose and object of incorporating section 29 in this bill.

You are told here that by some magic use of the word "distributing" in connection with the manufacturing clause, it is not a formality within the meaning of the Berne Convention. Now these foreign fellows are not going to be deceived, nor will these foreign nations be deceived. The one thing they are clamoring against and

have been throughout the years is our manufacturing clause, and one of the reasons why they are insisting upon bringing us into the convention is because they want to do away with the manufacturing clause. And have no illusions that if it should be held, as it probabily will be held, and held in some foreign court, that the manufacturing clause is in violation of the treaty, the answer will be found in section 29 and section 29 says the treaty is paramount and controls.

This Brussels Convention has on its agenda a number of proposals that have been submitted to the bureau of the Bern Convention by the Belgian Government, and a study was made of these proposals by a committee known as the Departmental Committee on International Copyright, appointed by the British Board of Trade, which you all know is a part of the British Government like our Department of Commerce-I think it exercises the same function as our Department of Commerce-they appointed a committee and this committee has made a complete study of the articles that are proposed to go into this Brussels Convention. And we can not adhere to the Brussels Convention, because other nations' copyright powers are entirely different from ours. Whatever powers you gentlemen exercise here in connection with copyright, the source of all the power is in the Constitution, article I, section 8. The work to be protected must be a work of fancy, or imagination, one that involves intellectual conception and possesses novelty and originality and, unless it possesses those attributes, the work cannot be protected under a copyright.

And just to recall that to you, some years ago the Congress, in its act of 1876, attempted to protect trade marks under a revision of the copyright laws, and an attack was made upon that act upon the ground it was unconstitutional, in that under the guise of copyright trade marks were protected. The Supreme Court of the United States declared the act unconstitutional because, the court held, you secure a trade mark by virtue of priority of use and that the trade mark does not involve the elements I speak of-fancy, imagination, laborious thought, or intellectual conception.

Under this revised Brussels Convention, they propose to protect titles. Under article 15 bis, it provides:

No title of a literary or artistic work may be utilized by third parties to designate another work in any country of the Union in which the first mentioned work has become so well-known under that title that the use of the title for the other work would give rise to confusion between the two works. We protect titles in the law of unfair competition; we cannot protect titles under the copyright laws. This is a matter that would be declared unconstitutional if we attempted to enact it into our copyright laws. Then as another idea of what other nations say of copyright, let me call attention to another article:

Where any person threatens any other person with legal proceedings for infringement of copyright, or other like proceedings in copyright, or alleges that such other person is infringing or may infringe his copyright, then any person aggrieved by such threat or allegation shall have the right to compel the person threatening to disclose the title under which he claims.

Congress has no power to incorporate that into any copyright act. Your power is limited. Perhaps it is unfortunate it is limited; nevertheless, it is limited.