Mr. McCLURE. Provided, of course, that the treaty is considered to be self-executing. As I stated in connection with this same treaty, it may or may not be self-executing. There are certain opinions both

ways.

Attorney General Cushing, whom I quoted at the time of the hearings in the Senate, to which Mr. Paine has alluded, held that it would be self-executing, that a copyright treaty would be self-executing. Personally I am disposed to agree with him, and I think that that would be the opinion, probably, of the lawyers of the State Department. But it is true also that the courts have held in certain patent cases that a patent convention is not self-executing, but requires an act of Congress to give it effect.

As between these two sets of opinions, of course, I have no way of coming to a decision. If I may, sir, in that connection, and in view of the fact that Mr. Paine has made certain statements about this character of treaty, I would like to suggest that if there is any peculiarity about the copyright treaty that same peculiarity exists in respect to the patents treaty to which the United States has been party for nearly half a century. That same peculiarity, sir, exists with reference to the International Institute of Agriculture, to which the United States has been a party since its beginning. That same situation exists in respect of the Universal Postal Union, which was suggested by the Postmaster General of the United States back more than half a century ago, and which was prepared at a similar conference, and which exists today, and to which all the countries of the world are parties, including, of course, the United States.

I would like to say that there are a dozen other such treaties to which the United States is a party. I wonder if there is a really legitimate uniqueness about this copyright treaty.

Mr. PAINE. Of course there is. Now, wait a minute. It is not fair for you to do this. It just is not fair, because you and I do not disagree as to this treaty. What I said is exactly what you said. I may have said it differently. I may have put it in a little different language, but it is absolutely the same thing.

Second, as to the patent treaty, there is no such thing as automatic protection for a United States patent in Germany. There is no such thing as an automatic protection for a German patent in the United States. I may not object to the kind of a treaty that the patent people have, because I feel that you have to have commercial treaties if you are going to carry on international relationships.

But the International Copyright Union is different. In the patent case they do not get together and legislate a copyright and what shall be an abuse of a copyright and what shall be an infringement of a copyright. They do not write into it all kinds of moral laws and moral rights and a whole lot of other things. They do not have that type of legislation.

The two things are not comparable. They are just as different as day and night. This is a serious treaty. This is something that supersedes our own domestic legislation.

I would rather Mr. Gilbert would answer these questions, because they relate to legal questions, and he is skilled and trained in this. I would prefer that he answer it.

Mr. LANHAM. You gentlemen will likely recall that I asked certain questions along this line earlier in the hearings. The matter has

never been cleared up to my satisfaction, because statements are conflicting from thoroughly reputable gentlemen. I personally should like to have a little information on that subject, if anything can be given.

STATEMENT OF FRANCIS GILBERT, ATTORNEY FOR THE MUSIC PUBLISHERS' PROTECTIVE ASSOCIATION

Mr. GILBERT. Mr. Chairman, I listened with interest to the discussion between Dr. McClure and Mr. Paine, and I was amazed that two intelligent, educated men should have that dispute, when it is merely a dispute about terminology.

There is no question about the situation. First, while I am not informed in great detail concerning this treaty about patents, I know enough about it to tell you this: That if a German wants to get a patent in the United States he has to come over here into the United States and apply for his patent to our Patent Office and submit himself to the rigid scrutiny and examination which is accorded to all Americans who apply for patents. He does not get a patent in the United States because he did something in Germany; he gets a patent in the United States only because he complies with the laws of the United States.

The effect of the treaty is to extend a period of time to people in one country to go into another country to comply with the laws of that country. That is the substance of the patent treaty. A patent lawyer in the United States-and please understand that I do not specialize in that subject-will tell you that if you apply for and receive a patent from the Patent Office of the United States, you have so many months or years to get it in Germany and other foreign countries; but when you go there you must comply with their laws.

In some of these countries they have the system of examination such as we have in our Patent Office, and in others they do not have that system of examination, so that it is quite possible that an American inventor may get a patent in Spain, or in Holland, and not get it in France or Germany.

I am not familiar with the countries where these things happen, but it is quite possible that he may be able to comply with the laws of one country and not with those of another country, and therefore he will not get the patent automatically all over the world.

To get to this question of the treaty, Dr. McClure correctly stated that until the Senate passes on the treaty we cannot have a treaty. That was not the question, however. The question was, if the Senate does approve of this treaty and by reason thereof the International Convention is made a part of the law of this land, then under the Constitution it does tend to repeal any domestic legislation enacted prior thereto. That is a simple question to answer, and I would like Dr. McClure to answer it, whether, if by treaty properly and fully and legally adopted we incorporate this Berne Convention, that does not supersede our domestic copyright laws where they are in conflict. Mr. MCCLURE. Mr. Chairman, in response to that question, which is a perfectly good and fair question, I can do no more than say what I said before, that there is a difference of opinion. If, of course, the treaty is self-executing, under the holdings of the Supreme Court if

it is later in date it would supersede the statute. The Constitution makes a treaty and a statute equally the law of the land, and the later in date supersedes the other under the holdings of the court. But if, on the other hand, the treaty is not self-executing and, as I said, that has not been authoritatively decided by our courts, that is, it has never been held one way or the other by the Supreme Court, then, of course, there would have to be an act of Congress to give effect to the treaty, so the stipulations could only become the law of the land by virtue of act of Congress. That, so far as I know, is the whole of it.

Mr. LANHAM. Under those differences of opinion with no res adjudicata, there can be no certainty, can there?

Mr. GILBERT. Then we had better watch our step.
Mr. PAINE. Now, may I continue my answer?

FURTHER STATEMENT OF JOHN G. PAINE

Mr. PAINE. I have a third objection. The third objection is this: Under this convention there is no provision, which I said in my address if I can dignify it as such-which will operate as an initiation fee, so that we do not know ever whether we are in the convention or out of the convention.

If our domestic law were enacted in such a way that the provisions of the law conformed 100 percent to the provisions of the treaty, I would think there would be no question about our being in the convention. But if the provisions of our domestic law do not comply 100 percent with the provisions of the treaty, there is a serious doubt as to whether we are in the convention.

If we, relying on the convention, enter into a lawsuit in a foreign country, that is the first test that we have as to whether we are in the convention or not in the convention. If it should so happen that the courts in reviewing our domestic law should arrive at the conclusion that we have not complied with the requirements of the convention as to our domestic legislation, they would hold that we were not in the convention, and then all of those copyrights which we had expected to be protected by virtue of adherence to the convention would fall into the public domain. That is the third objection.

The final objection is this:

We may find that if we go into the convention one country, let us take Germany for example, repudiates everything, and Germany treats us terribly. I say, if we were in the convention now, we would be in a very serious predicament. If we were in the convention at the present time and should want to take retaliatory steps against Germany for Germany's treatment of us, we would have to withdraw from the convention in order to do that. In withdrawing from the convention, we would find ourselves in a serious situation as to copyrights with all of the other countries who are members of the convention and against whom we may have no objection at all. So that we would find ourselves then confronted with a dilemma: How are we going to treat this? Are we going to allow Germany to continue this abuse, because we do not want to jeopardize our situation in other countries, or are we going to withdraw from the convention and jeopardize our situation in other

countries in order to be able to retaliate against Germany for the abuse that it perpetrates?

We are tied hand and foot. We cannot move; we cannot do anything. We are stuck.

That is the final objection that I have, not just the one that I expressed so strongly. I do object on that basis, but I think these others are sound, fundamental objections.

I like international copyright, and that is one thing that I can say, too, Mr. Deen, I like it. But I like it arranged country by country. Let the State Department enter into an agreement with Germany. Let them enter into an agreement with England. Let them enter into an agreement with France. Let them do it country by country, and then we do not find ourselves tied hand and foot so that we cannot move in the event of abuses in one country that do not apply to other countries.

Mr. LANHAM. May I interrupt to ask if we have such treaties now with reference to copyright with any of these countries?

Mr. PAINE. The international provisions of the present copyright law permit the President to make an investigation as to the situation in any country, and if the President finds that in France, for instance, France is ready and willing to give to American citizens the same protection it gives to its own citizens, the President is authorized then by proclamation to state that the citizens of France from and after a certain date will enjoy in the United States the benefit of the United States law as accorded American citizens. Those international proclamations have been issued in connection with practically all the important countries of the world, and we have that type of protection, which is quite satisfactory.

Mr. LANHAM. They are mutual, reciprocal agreements?

Mr. PAINE. They are mutual, reciprocal agreements. They protect us in France and they protect the French people in the United States. The French people take advantage of our law and the requirements of it and we take advantage of the French law and the requirements of it. They are a regular business procedure which we carry out every day. We have international protection right at the present time.

Mr. LANHAM. Mr. Solberg.

STATEMENT OF THORWALD SOLBERG, FORMER REGISTER OF COPYRIGHTS

Mr. SOLBERG. May I be allowed at this point as pertinent to all that has been said just recently to read one article of the convention itself, which is perfectly plain in its language?

The authors within the jurisdiction of one of the countries in the union enjoy for their works, whetner unpublished or published for the first time in one of the countries of the union, such rights in the countries other than the country of origin of the work as the respective laws now accord or shall hereafter accord to nationals, as well as the rights special'y accorded by the present convention.

That is exactly the basis of our international relations in regard to copyright today.

The last sentence is followed by this:

The enjoyment and the exercise of such rights are not subject to any formality.

There is the line of demarcation between the protection accorded. The protection under the convention is purely the protection of the different countries that are in the union, except that when agreeing to this international agreement we do agree that there the foreign authors are to be exempted from the formality.

Mr. PAINE. Mr. Solberg, may I have this just a minute [indicating the copy of the Berne Convention]?

This is the sentence I object to. This is the very thing I object to. It says here that they shall be protected in accordance with the law of the country, and then they put this in:

As well as the rights specially accorded by the present convention

That means that the convention then becomes superior to our domestic legislation, and that is the basis of my objection no. 2 to the convention.

Mr. LANHAM. May I ask just one question before we adjourn? I think it is pertinent, and I want the information in the record. In view of the fact that the gentlemen appearing here this morning are appearing independently in a hearing of their own, may I inquire whether or not this Music Publishers' Protective Association that you represent is or is not a part of A. S. C. A. P.?

Mr. GILBERT. That is not.

Mr. PAINE. Mr. Chairman, if I may, before you adjourn I would like to have on the record my sincere appreciation for the patience with which you have listened to what we have had to say.

I would like, also, to make the statement that I regret exceedingly that we have and such a limited time. There are a great number of publishers whose problems are specific and individual, and who would like to be heard. Mr. Foster, of Chicago, some of the publishers from New York City, Mr. Walter Fischer, Mr. Walter Douglass, and some of the others have not had an opportunity to present their views. May I ask that if in the preparation of your agenda you should find that there will be an opportunity before your hearings come to an end for us to be given a bit more time, we be considered as making application at this time for that?

Mr. LANHAM. I hope it may be so. That is one thing we cannot state definitely, necessarily. I will say that on tomorrow we are to have the Hotelmen's Association. They probably do not want a great deal of time, I understand. There is a Member of Congress who wanted to be heard tomorrow for a while. I should say that there is a possibility-I do not know how strong the probability would be that we might have a little time tomorrow. But that is not sufficiently definite to justify these men in coming here unless they are here already. However, if we have any time beyond those purposes tomorrow, or if you or some of these other gentlemen would like to discuss other features or amplify what you have said, I am sure the committee would be glad to hear you.

Mr. PAINE. Thank you very much.

Mr. LANHAM. The committee stands adjourned until 10 o'clock tomorrow morning, to meet in this room.

(Whereupon the committee adjourned at 12:10 p. m. until tomorrow, Friday, Mar. 27, 1936, at 10 a. m.)