MARCH 20, 1935.

LOUIS D. FROHLICK, Esq..

1450 Broadway, New York, N. Y.

MY DEAR MR. FROHLICH: Since the time of your visit to the State Department a revised draft of the copyright bill has been completed and a copy is enclosed for your consideration. Under separate cover five copies are also sent to your address for the use of Mr. Burkan, Mr. Finkelstein, and others of your associates. A copy has also been sent to Mr. Mills.

This letter is for the purpose of replying in some detail to the points raised by you personally at the time of your appearance here and also to the comments in the brief which you furnished to the committee. It is a source of satisfaction to the committee that it has been found possible to accept a number of your suggestions; your observations, as well as the authorities cited in the brief, have proved helpful in the drafting of the revised bill.

Before taking up the items of the brief, it seems desirable to emphasize the fact that the fundamental purpose of the bill is to prepare the way for the adherence of the United States to the International Copyright Convention. This, it is understood, is something which is wanted and needed by the American Society of Composers, Authors, and Publishers, and if, in its attainment, some small sacrifice of present advantages may be required, your clients will nevertheless stand to gain very greatly in the end. Incidentally, there will be a considerable enlargement of the rights of American authors and composers if the provisions of the bill are enacted into law.

The topics of your brief may appropriately be taken up seriatim. The section numbers referred to are those of the present statute.

Section 1 (b): In accordance with your suggestion, the grant of the right to make motion pictures has been enlarged to include the making of such works from any other copyrighted work.

Section 1 (e): The full intention of the amendment of this section in the original draft had not, perhaps, been made entirely clear to you at the time of your conference with the committee. It does not in any way affect the rights of American composers in the United States. They will continue to enjoy the same rights as to the mechanical reproduction of their music and performances from records which they have hitherto had. The amending language relates only to rights granted in accordance with the Convention; that is to say, rights granted to foreign authors who are nationals of a Union country and who claim such rights under article XIII of the Convention. In other words, the new provisions relate to those works hitherto in the public domain in the United States which will be protected from the time of adherence to the Convention by virtue of the obligation imposed by article XVIII. Under article XIII, however, the protection against mechanical reproduction in such cases need not be retroactive, either as to the manufacture of records, where records have been lawfully manufactured prior to the date of adherence to the Convention.

The net result, therefore, will be not to take away any existing rights. either of American citizens or of citizens of foreign countries members of the union. It will add to some extent to the body of works of foreign composers, which will be protected by copyright against mechanical reproduction, i. e., those works hitherto in the public domain in the United States by reason of failure to comply with the formalities of our law, from which mechanical records have not hitherto been made.

Section 1 (f): As you will see, the revised draft adds to the grant of rights communication to the public by "wired wireless, telephony, television, or similar means", thus following the suggestion you made and somewhat expanding it. Section 4: The word "writings" has been restored in place of the word "works." It was not the intention to grant copyright in phonograph records, but merely to make the language as broad as that of the convention. Doubtless it is preferable to retain the use of the constitutional word "writings": several others beside yourself made the same comment on this subject.

Section 5: The new subsection, formerly (p), now (o), has been expanded to include works prepared for recording by means of electrical or mechanical transcription in addition to those prepared for radio broadcasting. These works will doubtless be in many cases in the nature of compilations, in which event there will be no interference with the rights of the authors or composers of the component parts compiled. Section 6 of the existing law, which remains unchanged, takes care of this. It may be true that the existing

statute is broad enough to cover material of this kind. Nevertheless, the Copyright Office has experienced difficulty in its proper classification; for this and other reasons a new subsection seemed called for.

Sections 7 and 8: Your brief indicated the feeling that works now "in the public domain" should remain there. Apprehension was expressed lest vested interests might by injured by any change in the law in this respect. The obligation of the convention (art. XVIII) is clear that, upon adherence, a country must give protection to the works of union authors which have not fallen into the public domain by reason of the expiration of their term in the country of origin; that is, works which, while hitherto unprotected in the United States because of the failure to publish them with notice or register them in the Copyright Office, are nevertheless the exclusive property of their owners in union countries. American citizens will, of course, have a reciprocal right of protection in all the other countries of the union. The greatest care has been taken, however, in drafting the proviso to section 8 that no vested interest shall be interfered with. Wherever a work hitherto in the public domain has been lawfully used in the United States, or where any enterprise has been undertaken with reference to it whereby any expenditure or liability has been incurred, such use will remain lawful, as well as any continuance or extension of the use flowing out of the original action.

Section 12: An amendment has been added to make it clear that union authors entitled to copyright without formality will be able to bring suit for infringement without registration or deposit of copies in the Copyright Office. Such deposit and registration, however, are provided for at the option of the union author in section 23, and it is anticipated that considerable use will be made of this privilege, which will be an undoubted advantage to all concerned. SECTION 23: It appeared highly desirable to the committee to remove the formality of renewal registration. It may be added that practically everyone who has given attention to the matter during the discussions before committees of Congress for some years past has approved the idea of a single term of copyright in place of the two terms, original and renewal, existing under present law. The right of renewal frequently is not exercised, with resulting loss of copyright in valuable works, and it is believed the single term is an improvement from practically every point of view. Your proposal for a reversion of the latter part of the copyright term to the author or his family interested the committee. As you say, the British law gives this right, which accrues 25 years after the death of the author. It may be possible at a future time to consider further the value of this proposal, but the purpose of the present draft hardly seems to justify introducing it.

Section 24: This section, providing for the extension of existing copyrights through the renewal period, has been considerably changed in the revised draft, and, among other things, it will preserve the rights now given to the author's widow and children. The purpose of the section as amended is to give the second 28 years of copyright in all cases to the same persons who would receive it under existing law, subject, however, to any agreement made for the disposal of the renewal term which would be enforceable under the present statute at the end of the first 28 years of copyright. The committee would be interested to know whether you think this intention, in which it is believed you concur, is attained by the language used.

Section 25: The question of statutory damages has received a great deal of thought by the committee. It had to be recognized that conditions regarding the use of copyrighted matter, especially in relation to the performance of musical compositions, have greatly changed since the present act was passed in 1909. As you are aware, a great variety of opinion has been expressed at hearings on bills for copyright revision on this point. The general tendency has seemed to be toward the reduction of the statutory minimum. After weighing all considerations, it seemed best to the committee to adopt tentatively the language in the present paragraph (3), increasing the maximum to $10,000 and eliminating the minimum, but directing the court to fix damages sufficient to prevent their operation as a license to infringe and sufficient to be "just, proper, and adequate, in view of the circumstances of the case." Under this provision, the court might, of course, award a sum considerably less than $250, but, on the other hand, might award a much larger sum. This provision, as revised, is believed to be in the interest of equity for all concerned.

Subsection (i) (2) was criticized by you as likely to favor hotel owners, restaurant proprietors, and other persons in whose place of business the re

ception of broadcast music or its mechanical performance takes place. As you know, this a point about which controversy has been especially keen, and views expressed have been especially insistent. The committee, in its endeavor to draw an equitable line between the requests of producers and the requests of consumers, felt that the wisest course was to exempt from liability the reception of copyrighted material when no special fee or charge is made concerning it.

Section 28: As was pointed out when you were here, the criminal infringement provisions remain in the law. The proviso to this section was omitted because its subject matter is sufficiently covered in the new section 25 (i) (1).

One or two other features in the new draft may, it is hoped, meet your approval, as they are in the direction of a larger right of control by the author. Reference may be made in particular to a slight but important amendment in section 1 (c) which expands the right of oral delivery of a copyrighted work to cover all classes of works, not merely lectures, sermons, and addresses. This corresponds to the enlargement of the classes of works which may be copyrighted without publication, by virtue of section 11, to include literary works generally. In section 42, an extensive amendment has been adopted giving to authors the "divisible copyright" for which they have long contended and permitting the assignee of any separable right to sue in his own name. In conclusion, the thanks of the committee are cordially extended to you for your comment and criticism regarding its drafts. Your continued interest is hoped for. It is the program of the committee to lay a bill before Congress early next week.

Sincerely yours,

WALLACE MCCLURE, Chairman, Interdepartmental Committee on Copyright.

REVISION OF COPYRIGHT LAWS

TUESDAY, MARCH 17, 1936

HOUSE OF REPRESENTATIVES,
COMMITTEE ON PATENTS,
Washington, D. C.

The committee met at 10 a. m., Hon. Fritz G. Lanham presiding. Mr. LANHAM. The committee will come to order. The chairman, unfortunately, is ill, and he has asked me to act in his stead this morning. I hope he will soon be able to return to the hearings.

According to the agenda, this morning is set apart for hearing the National Association of Broadcasters, represented by Mr. James W. Baldwin, Sydney M. Kaye, and Louis G. Caldwell, as attorneys for the National Association of Broadcasters.

Before proceeding with that, I understand, Mr. Clerk, that a lady has filed a statement which she wishes incorporated in the record, that has to do with another feature of the bill. I think it is in reference to literary authors. Is that correct?

The CLERK. Yes, Mr. Chairman; it is a statement by Mary Greer Conklin, essayist, requesting permission to file this brief. She, as well as others, has been requested to follow this procedure by the clerk of the House Committee on Patents on account of the inability to hear all those who wish to appear and give oral testimony. Accordingly, she has filed this brief this morning and requested that it be incorporated in the record.

Mr. LANHAM. Without objection, it will be incorporated in the record at the appropriate place with reference to the feature of the bill to which it pertains.

The CLERK. Yes, Mr. Chairman.

Mr. LANHAM. Have you gentlemen who are to appear this morning arranged among yourselves who will be the first witness? Mr. BALDWIN. Yes, sir; we have, Mr. Chairman. I have a brief statement to make.

Mr. LANHAM. Mr. Baldwin.

STATEMENT OF JAMES W. BALDWIN, MANAGING DIRECTOR OF NATIONAL ASSOCIATION OF BROADCASTERS

Mr. BALDWIN. My name is James W. Baldwin. I am managing director of the National Association of Broadcasters. I have served in that position since July 10, 1935.

The National Association of Broadcasters has 388 active members, including every class of broadcasting station, and representing approximately 62 percent of the broadcasting stations licensed by the Government. Our members are located in 47 States and in Hawaii and Puerto Rico.

I offer for the record, Mr. Chairman, a copy of our constitution and bylaws, a list of our officers and directors, and a list of our members.

Mr. LANHAM. Without objection, that will be inserted in the record.

(The documents referred to will be found in the appendix.) Mr. BALDWIN. The purpose of our association is described in article II of our constitution, which reads as follows:

The object of this association shall be to foster and promote the development of the art of radio broadcasting; to protect its members in every lawful and proper manner from injustices and unjust exactions; to foster, encourage, and promote laws, rules, regulations, customs, and practices which will be for the best interest of the public and the radio industry.

By Executive order dated November 27, 1933, President Roosevelt found that the National Association of Broadcasters was truly representative of the radio broadcasting industry, and that our bylaws provided no inequitable restrictions to membership.

Our members, on July 10, 1935, in annual convention assembled, unanimously adopted the following resolution:

Resolved, That the National Association of Broadcasters hereby petitions the Congress of the United States speedily to enact Senate bill no. 3047, generally known as the Duffy copyright bill, which brings the Copyright Act of 1909 into conformity with the pending treaty which would permit American entry into the International Copyright Union, and which will afford relief to broadcasting stations, hotels, restaurants, public gatherings, valet shops, etc., by eliminating the minimum statutory damage provision and permitting the court to determine the amount of damages.

And that a copy of this resolution be communicated to the chairman of the Patents Committee of the Senate, the Honorable William G. McAdoo; to Senator Duffy; to the chairman of the Patents Committee of the House of Representatives, Representative Sirovich, and to Representative Bloom.

And on February 3, 1936, our board of directors, in pursuance of the above mandate, instructed their managing directors to bend every effort to bring about enactment of the Duffy copyright bill (S. 3047) in the form in which it passed the Senate, and to oppose any attempt to insert or restore the minimum statutory damages or penalties for infringement.

The position of the National Association of Broadcasters, Mr. Chairman, with your permission, will be presented by Mr. Kaye. Mr. LANHAM. Just a moment, Mr. Baldwin. It may be that some of the members of the committee will wish to ask you some questions. Mr. DALY. I would like to ask one question, with an apology, perhaps, for asking it, and my only reason for doing it is that the committee elicited similar information from another organization. You are the managing director of this association?

Mr. BALDWIN. Yes, sir.

Mr. DALY. Might I ask you what they pay you a year?

Mr. BALDWIN. I have no objection at all. My salary is $11,000

Mr. DALY. I have no further questions at this time.

Mr. LANHAM. Mr. Dunn?

Mr. DUNN. Mr. Baldwin, how many broadcasting stations belong to the National Broadcasting Corporation?