The proposed registration of designs to be applied to manufactured products may well be unconstitutional on the broad ground that it cannot "promote the progress of science and the useful arts" and that the word "authors", as used in the Constitution, does not and was not intended to embrace originators of designs, that anyone can create for himself.

The effort to promote legislation for copyright registration of designs for manufactured products seems to emanate chiefly from the silk and textile industries. Representatives of those industries have said that designs for their products are ephemeral in their nature, being matters of transitory taste and style. Assuming that to be so, the term of monopoly proposed for that class of designs seems unnecessarily long.

Complaint has been made that the time required for examination of design applications in the Patent Office is so long that thieves within the silk and textile industries (other industries seem not to be so afflicted) steal new designs and break market prices before patents can be granted. A present answer to this is that the Patent Office now makes special the examination of so-called ephemeral designs and that not more than a week elapses after an application is filed before it receives action by the office. If it is found to be allowable, only such brief time as is required for printing elapses before the patent thereon is issued.

The solution of the problem of those who produce and seek protection for ephemeral designs is to create them a little earlier in the season, just as the automobile and other industries are doing. To this suggestion it is to be anticipated that response will be made that the proposal is impossible because styles are determined abroad, particularly in Paris, and that until a style is so determined, the production of acceptable designs at home is impracticable. It is said the textile concerns able to do so send "specialists" abroad to get ideas of style which they bring home for development or embellishment and that anything built upon what is so garnered is immediately copied by domestic "pirates." Assuming the silk and textile industries to be so afflicted, that fact affords no valid reason for launching upon every other industry that is not, and the public that supports them all, the burdens of countless monopolies and limitless excuses for litigation.

It is one of the purposes of the current proposals for copyright legislation to bring our law to a form that will enable us to join fifty-odd other nations in membership of the International Copyright Union. It is not necessary to attain that end that copyright registration for designs to be applied to manufactured products be enacted. If it is enacted and this Nation joins the International Copyright Union, it is believed that the textile designers who go abroad for their ideas will have new and more terrible troubles than now beset them, for they will find that everything they will see or be shown including all copyrightable component parts thereof, has been copyrighted abroad and, by virtue of the provisions of the International Copyright Union, also at home, before any public exhibition of its was allowed.

If it be assumed that the silk and textile industries are right and that experimental copyright regisration for their ephemeral designs is necessary, then plainly the doubtful remedy proposed for its alleviation should be restricted to those afflicted industries. Other industries having no such difficulties should not be disturbed, at least not until the suggested legislation has proved its worth in the field where its supposed remedies are invoked.

The proposal to copyright architectural designs will, I think, lead to much embarrassment to the building trades. No one will feel free or safe to build a house or decorate a room according to his own ideas for fear that someone may have copyrighted another one which may be sufficiently similar to raise a presumption of copying in possible litigation.

Section 3 of the existing act provides in part: "That the copyright provided by this act shall protect all of the copyrightable component parts of the work copyrighted."

This language is preserved in all of the proposed amendments to that act that I have seen. Amendments proposed for section 12 of the existing act call for deposit, promptly after manufacture has taken place, of five copies of photographs or other identifying representations of the manufactured product in which an artistic design has been embodied, together with an application for the regisration of a claim of copyright. Assuming that the deposited photographs or other identifying representations are made available for search, and the proposed amendments do not seem to require that they shall be, great difficulties will arise in determining therefrom the scope of protection already

accorded. Suppose that the product happens to be a threshing machine or a cathedral or a streamlined train, how will the public know what comprise the component parts of any of these composite things which are covered by the copyright? Who will be able to advise it?

Who will be wise enough to determine how many monopolies are granted by one copyright regisration or what is the scope of each such monopoly? Would an artistic door and an artistic transom above it, each of which may be assumed to constitute a separate copyrightable component part of a building structure, by reason of some real or fancied artistic and harmonious treatment, combine to form a further copyrightable component part of a complete architectural work?

Apparently there is to be no requirement for deposit of photographs or other identifying representatives in the case of works, including designs to be applied to manufactured products, entitled to copyright without formality, under the proposed amendment of section 12 of the existing act. This would mean that if this country joins the International Copyright Union there will be no way, at home or abroad, to ascertain by search what copyright protection may exist here vested in holders of copyrights obtained without formalities in foreign nations. No manufactured product can be made here under such conditions without running risks of litigation, if the maker is a responsible party.

The provision for copyright of artistic designs for manufactured products makes it possible for any manufacturer to establish a copyright monopoly on any part of any machine manufactured, by the simple expedient of providing it with some simple, well-known form of design or embellishment. Such a monopoly would be effective to largely destroy rights of repair of parts of machines bearing such copyrighted designs, whether the machine or its parts be patented or not. Such rights are of great value to the public and have always belonged to it. It is manifestly a mistake to take them away on mere ex parte representations that something has been done which is really of no practical consequence and which the public is quite able to do for itself.

It may here be noted that the proposed amendments to the design act do not repeal the existing design patent act, and that the opportunity which the latter act has long provided for securing protection for invented designs of merit is not to be altered. That act is by no means inoperative. Under it, during the fiscal year ending June 30, 1935, applications for 5,069 design patents were filed, and 3,437 design patents were granted. The number of design patents granted indicates a liberal administration of the act is in effect.

The writer's interest in the subject of design protection centers particularly in the railroad industry, a portion of which he represents. On behalf of that industry he requests that, if an act of general application providing for copyright registration of designs for manufactured products is to be passed, an exception, excluding the railroad industry from the provisions thereof, be incorporated therein similar to that which has been accorded the motor industry. To that end it is suggested that paragraph (g), section 1, in line 15 of page 4 of H. R. 10632, introduced by Mr. Daly, be amended by canceling the comma and inserting the words "and products intended to be applied to or embodied in or employed as railway facilities, equipment, or accessories, and products employed in the design and manufacture of any of these."

Respectfully submitted.

MELVIN H. COULSTON.

Mr. LANHAM. Is Mr. Brand here? Mr. Brand, what time do you require?

Mr. BRAND. Just a minute or two, Mr. Chairman.

STATEMENT OF EDWARD A. BRAND, ATTORNEY, WASHINGTON, D. C., APPEARING FOR TANNERS' COUNCIL OF AMERICA, NEW YORK CITY

Mr. BRAND. Mr. Chairman, I only intend to present a brief for the Tanners' Council of America.

Mr. Chairman and members of the committee, a committee of the Tanners' Council of America, which represents the 11 associations

of the leather industry, and speaks for the leather industry, has been studying several of your bills, but I have not.

So that what I have to say in a brief way will be simply introductory to what they have done, and I propose to leave with you their brief.

Mr. LANHAM. It will go into the record.

Mr. BRAND. Yes, sir; we wish it to go into the record and be studied by the committee, when it goes over the proceedings.

They do not favor either S. 3047 or H. R. 11420, but they do favor H. R. 5859. With that comment, Mr. Chairman, I will leave the brief with you.

Mr. LANHAM. Thank you very much.

(The brief referred to is as follows:)

BRIEF IN SUPPORT OF LEGISLATION FOR INDUSTRIAL DESIGN REGISTRATION

A majority of members of the Tanners' Council of America, a national association representing every branch of the leather industry of this country, favor the passage of legislation which will eradicate design piracy in the leather industry which has grown to be a serious trade evil. We do not believe that the Duffy bill with the Vandenberg amendment (S. 3047) nor the Sirovich bill (H. R. 11,420) are adequate to properly protect property right in applied industrial design. H. R. 5859 (Sirovich bill for textile, lace, and embroidery industries) more nearly meets our ideas of design registration.

BACKGROUND OF THE PROBLEM

There are certain facts fundamental to an understanding of the necessity for design protection in the fancy or specialty leather lines. The demand for fancy or printed leather like the demand for other fancy or specialty products does not exist but must be created. Usually it is created through advertising and sales promotional work, by manufacturers or merchandisers of the best quality merchandise. As demand springs up in response to this promotional work, interest in the design on the part of other manufacturers arises and they copy the design or pattern, the demand for which is available without any creative effort on their part. As the original proponent of the design, however, has created the demand for his leather, newcomers in the field must reduce the price to get a slice of the business. Obviously there would be no inducement to the customers to buy from the newcomer at the same price as the promoter who has supposedly perfected the product. They can usually do this by offering the copy on a cheaper material. A constantly accelerated trading down begins and continues until everyone offers the design on the cheapest possible material. However, stylized products sell on a basis of scarcity and quality, not abundance and price. Moreover, by their nature they have a sensitive and impermanent appeal, similar to fads. If before they have reached the wide distribution throughout the trade the public fancy has not turned to something else, then widespread use kills the demand, and the trade is ready for something else. Often such demand may be created and die all within a period of 4 months. It will be apparent, therefore, that the original sponsor of a design may quite easily find the demand for his product killed before he has had an opportunity to regain his out-of-pocket expense.

PARTIES INVOLVED IN THE PROBLEM

There are two principal groups interested in the printing of so-called fancy leathers: 1. Tanners; 2. Embossers (mostly on contract).

Tanners ordinarily complete the entire process beginning with the buying of raw hides and skins, tanning them into leather, printing the leather, and placing it on the market. The preparation and placing on the market of printed leather ordinarily would require from 6 to 8 weeks to complete this economic process.

It will be apparent that a substantial investment of capital may be involved in this operation, and be risked in the development of demand for a new design. Embossers, with but few exceptions, simply perform the "printing" function on a contract basis for someone who owns so-called rough or unfinished leather, or they buy rough leather and finish it for themselves. This printing process simply consists of imprinting the design on the leather by a plate held in a heavy press. All the capital required here, therefore, is for plates and presses. The printing or embossing function is performed on so many hides or skins per minute.

The embossing function itself, of course, takes no longer for the tanner than the embosser. The point to be brought out here is that the risk and investment of the tanner starts with the raw material and ceases only when the product is placed on the market. The contract embosser, on the other hand, in simply contracting to emboss leather, risks only the capital involved in presses and plates.

The embosser who purchases leather has but little additional risk. In contrast with the tanner whose process takes 6 to 8 weeks, the embosser may purchase leather, emboss, and market it all within a few days. It should be apparent by this contrast, therefore, that the financial risk necessitated by the developing and promoting of new designs is usually borne by the tanner. Most tanners of fancy and specialty leathers have developed their business along such lines.

The contract embosser, on the other hand, secures business by being able to offer the trade copies of all designs for which demand has been created. Their interests are best served with a ready stock of all going plates, and particularly those which are copies of designs owned by tanners who have developed a demand for them.

NO ADVERSE EFFECT ON CONSUMER OR RETAILER

Upon the answer to the problem of registration and promoting a particular design rests the question of whether or not fair competition, stability, and the development of stylized quality merchandise shall play any part in the fancy leather industry. For, if such protection is not afforded, these members of the leather industry who aid and promote the use of new designs will find it more profitable to abandon the field and concentrate on some other type of leather and the demand for fancy leather will die because of lack of nourishment by new and stimulating patterns, and the entire trade will suffer.

Furthermore, the retailer who sells and the consumer who buys a stylized product at a quality price should be protected from pirating of such a product by copyists who lessen its value or appeal through cheapening its quality or killing its exclusiveness through widespread use.

It is a well-known fact in industries where design protection is afforded that registration of designs stimulates the inventiveness and imagination of designers and style creaters, and therefore no monoply results.

EFFORTS MADE BY INDUSTRY TO REGISTER DESIGNS

With the adoption of the leather industry code under the N. R. A., registration of designs with an agency designated by the Tanners' Council was provided. During the life of the National Industrial Recovery Act, the system worked with reasonable success, and was in process of revision to eliminate some legal inconsistencies when the N. R. A. was ruled out of existence. Since that time the registration of leather designs has almost entirely ceased.

The purpose of the leather code provision was to provide a simple method for registration of designs to avoid the present cumbersome method of registration in the Patent Office.

We respectfully urge the Patents Committee to draw a bill for the registration of industrial designs which will give protection to the leather industry. TANNERS' COUNCIL OF AMERICA.

MARCH 10, 1936.

Mr. LANHAM. Mr. Katz, we will be glad to hear from you at this time.

STATEMENT OF HARRY LEEWARD KATZ, GENERAL COUNSEL, MUSIC USERS' PROTECTIVE ASSOCIATION

Mr. LANHAM. State your name, residence, and the name of your association.

Mr. KATZ. My name is Harry Leeward Katz. I am a Baltimore attorney, and I represent the Music Users' Protective Association. I might briefly outline to this committee just what the Music Users' Protective Association is.

Sometime ago a client came into my office and told me that he had a small tavern. He was approached by a gentleman who offered to sell him some musical instruments. He told this gentleman that he was not interested in that type of instrument, but he had a small radio. He was then warned that he would have to have a license to operate that radio. The result was that he received a number of letters from the American Society of Composers, Authors, and Publishers and brought them to my office. It was the first time that I had ever heard of an attempt by any organization to tax the user of the radio, and I went to the Baltimore Sun's information files to find out whether or not they had on record any other similar experience.

It was then that I met a reporter over there, and I got to talking to him, and the result was that he started a little investigating, and the story broke in the newspapers. The next couple of days my office was crowded with members of the musical union, copyright owners, representatives of confectionery stores, who had received similar threats, and we got to discussing this proposition.

It was Prof. John D. Forsan, of the musical union over there, who suggested that we get together and organize some sort of protective association which would represent the interests of, you might say, the consumer of music. We did that. We organized an association, and amongst those were the confectionery stores, the Musical Union of Baltimore City, the radio repairmen, the restaurant associations, and a host of others who use music.

It was then that we learned for the first time the vicious activities of the American Society of Composers, Authors, and Publishers. We found that not only were they demanding $60 license fee for operating a radio, notwithstanding the fact that the man might have paid $6 or $7 for the radio, but we found that a series of threatening letters was coming to certain of our members who were becoming active in opposing this set-up of the society.

In fact, I have here a letter in which one man was threatened with positive libel if he continued his activities against the American. Society of Composers, Authors, and Publishers.

We also found that there were many small taverns that could not afford to employ musicians, due to the excessive fees demanded by A. S. C. A. P.

Here is an illustration: On Baltimore Street, between Liberty and Hanover, there is a Dutch delicatessen. They had a sole accordion player who used to play from 12 to 1, and I learned from the proprietor that he was approached by a representative of A. S. C. A. P. and was asked whether or not he had a license to permit this man to play this accordion. He was surprised and told me he never knew anything about a license, until this man thoroughly explained