The court may dispense with an accounting

(1) In cases where the plaintiff may so request, or where from the record it is apparent to the court that an accounting would not find damages or profits to exceed $100. In such case the defendant may be held liable to pay to the plaintiff not less than $100 nor more than $250, as compensation and not as a penalty;

(2) In cases where the copying complained of was without knowledge or notice of the copyright.

The court may order to be delivered up and destroyed or otherwise disposed of, as shall be just as between the parties, all infringing articles, products, or parts, and all dies, models, and devices useful only in producing the infringing article or product, and all labels, prints, or advertising matter relating to the infringing article or product.

SEC. 11. No relief shall be granted where an infringement has continued with the knowledge of the owner of the copyright for a period of two years prior to the commencement of the suit or action; and in no event shall there be a recovery of profits or damages for acts of infringement committed more than three years prior to the commencement of the suit or action.

SEC. 12 When registration has been made in the copyright office of any design as provided in this act, written, printed, or photographic copies of any papers, drawings, or photographs relating to such design preserved in the copyright office shall be given to any person making application therefor and paying the fees required by this act, and such copies when authenticated by the seal of the copyright office shall be evidence of the same force and effect as originals.

SEC. 13. In an action or suit for infringement of copyright in a design registered under this act there shall be a presumption of originality in the registered design and of validity in the registration thereof; and a presumption of copying may in the discretion of the court be held to arise from substantial resemblance of the registered design in defendant's design.

SEC. 14. The district and territorial courts of the United States and its insular possessions, including the courts of first instance of the Philippine Islands and the Supreme Court of the District of Columbia, shall have original jurisdiction, and the Circuit Court of Appeals of the United States, the Court of Appeals of the District of Columbia, and the Supreme Court of the Philippine Islands shall have appellate jurisdiction of proceedings respecting designs protected under the provisions of this act.

SEC. 15. Writs of certiorari may be granted by the Supreme Court of the United States for the review of cases arising under this act in the same manner as provided in the Judicial Code as amended by the act of February 13, 1925.

SEC. 16. After adjudication and entry a final decree by any court in any action brought under this act, any of the parties thereto may, upon payment of the legal fees, have the clerk of the court prepare a certified copy or copies of such decree, or of the record, or any part thereof, and forward the same to any of the designated courts of the United States, and any such court to which such copy or copies may be forwarded under the provisions of this section shall forthwith make the same a part of its record; and any such record, judgment, or decree may thereafter be made, as far as applicable, the basis of an application to that court for injunction or other relief; and in the preparation of such copies the printed copies of the record of either party on file with the clerk may be used without charge other than for the certificate. When the necessary printed copies are not on file with the clerk either party may file copies which shall be used for the purpose, and in such cases the clerk shall be entitled to charge a reasonable fee for comparing such copies with the original record before certification and for certifying the same.

SEC. 17. If the copyright in a design shall have been adjudged invalid and a judgment or decree shall have been entered for the defendant, the clerk shall forward a certified copy of such judgment or decree to the register of copyrights, who shall forthwith make the same a part of the records of the copyright office.

SEC. 18. (a) Any person who shall register a design under this act, knowing that the design is not an original work of authorship of the person named as author in the application for registration, or knowing that the ownership of the copyright therein is falsely stated in the application for registration, shall be guilty of a misdemeanor punishable by a fine of $500, or such part thereof as the court may determine.

(b) Any person who shall bring an action or suit for infringement of a design alleged to be protected under this act, and known by the plaintiff to be not an original work of authorship of the person alleged to be the author of said design, shall, upon due showing of such knowledge, be liable in the sum of $500, or such part thereof as the court may determine, as compensation to the defendant to be charged against the plaintiff and paid to the defendant in addition to the customary costs.

(c) Any person who, with fraudulent intent, marks one or more manufactured products which are not protected by design copyright, so as falsely to indicate that they are so protected, shall be guilty of a misdemeanor and shall be punishable by a fine not exceeding $500.

SEC. 19. Registration under this act shall not constitute any waiver or abandonment of any trade-mark rights in the design registered.

SEC. 20. The register of copyrights shall be authorized, for convenience of copyright-office administration, to determine and designate the different classes of manufactured products under which registration may be made, and, subject to approval by the Librar an of Congress, to make rules and regulations for such registration, and for the form of the required certificate: Provided, however, That such classification shall not be held to limit or extend the rights of the author of the design or his legal representative or assignee.

SEC. 21. The register of copyrights shall receive, and the persons to whom the services designated in this act are rendered, shall pay the following fees: (1) For the registration for the first term of two years under this act, $3; (2) for the registration of the extension of the period of protection to twenty years, as provided herein, $20; and the payment of the said fees shall include, in each case, the certificate provided for in this act; (3) for a duplicate certificate of any registration made, $1; (4) for recording any document in the copyright office, as provided in section 7 of this act, or for furnishing certified copies of any such document, $1 for each sopyright office record-book page or fraction thereof up to five pages, and 50 cents for each such page or fraction thereof beyond five pages; (5) for copies of any registration made, or of drawings or photographs or other identifying reproductions filed in relation to any design registered, and for comparing such copies with the originals before certification, a reasonable fee and 50 cents additional for certification of each such copy under seal of the copyright office.

SEC. 22. All designs registered for the first term of two years shall be listed in the Catalogue of Copyright Entries prepared and pr nted under the provisions of the Act of March 4, 1909, and shall be further identified by a representation of the design, and each extension registration shall be listed in said catalogue. The periodic issues of said catalogue may be subscribed for upon application to the Superintendent of Public Documents, at a price to be determined by the register of copyrights for each part of the .catalogue, not exceeding $10 for the complete Catalogue of Copyright Entries provided by the act approved March 4, 1909, or $10 for the catalogue of designs registered under this act. The Catalogue of Copyright Entries for designs shall be admitted in any court as prima facie evidence of the facts therein stated as regards any copyright registration for a design made under the provisions of this act.

SEC. 23. There is hereby authorized to be appropriated out of any money in the Treasury not otherwise appropriated, for clerical services, office rental and equipment, stationery and supplies, for carrying into effect this act for the fiscal year ending June 30, 1929, $100,000, or so much thereof as may be necessary, the same to be available immediately upon the approval of this act, and thereafter such sums as Congress may deem necessary, to be expended by the Librarian of Congress.

SEC. 24. The Librarian of Congress shall annually submit estimates in detail for all expenses of carrying this act into effect, and he is hereby authorized to appoint such subordinate assistants to the register of copyrights as shall be necessary for the prompt and efficient execution of the work involved. SEC. 25. The following sections of the United States Revised Statutes are hereby repealed: Section 4929, as amended by the act of May 9, 1902; sections 4930 and 4931; and section 4934, as amended by the acts of February 18, 1922, and February 14, 1927, is further amended by striking out the words " except in design cases wherever they appear, and also by striking out the following words: In design cases: For three years and six months, $10; for seven years, $15; for fourteen years. $30": Provided, however, That design patents issued under the sections herein repealed shall have full force and effect as if said sections were still in effect: And provided further, That notwithstanding the

six months' limitations in section 3 of this act, an applicant who has duly filed in the Patent Office an application for a design patent, and whose application has not become abandoned when this act goes into effect, or his assigns and legal representatives may within six months after this act goes into effect elect either to demand a design patent which may be granted him and have full force and effect as if the section herein repealed were still in effect, or to abandon said application for a design patent and secure copyright protection under this act by complying with the provisions of this act, so far as applicable, and upon payment of the fee or fees prescribed in section 21 of this act, filing an application for registration of said design under this act, or two or more applications in different classes, if the design as disclosed in said application is entitled to registration in such different classes, the initial term of such copyright protection under this act to commence with the sale or offer for sale of manufactured products to which the design has been applied or in which it is embodied, marked in the manner specified in section 5 of this act. No design copyright under the provisions of this act shall be valid to an author or to the legal representative or assignee of such author to whom shall have been issued a design patent in this country for the same design.

SEC. 26. This act shall go into effect on July 1, 1928, and may be cited as the design copyright act of 1928.

The CHAIRMAN. Mr. Williams, of New York, who has really had a lot to do with this bill and is interested in it, is here, and the committee will be glad to hear from him. He probably will be able to give us a sort of program of the persons who desire to be heard. The committee is not informed as to who wants to speak for the bill.

STATEMENT OF HENRY D. WILLIAMS

Mr. WILLIAMS. I have endeavored to get the names of all who are to appear, and arrange them.

The CHAIRMAN. That is fine. Mr. Williams, the committee will be glad to have you make a statement as to this bill.

Mr. WILLIAMS. My name is Henry D. Williams. I am a lawyer, practicing especially in patents, trade-marks, and copyrights.

I do not represent any client or any special interest. I represent the American Bar Association.

I am vice chairman of the committee on legislation of the patents, trade-marks, and copyrights section of the American Bar Association, and am chairman of its committee on designs and copyrights.

The bill as it stands is the bill of the American Bar Association, prepared and submitted by my committee on copyrights, of which am chairman, and as vice chairman I am put in charge of presenting the matter to the Congress.

Mr. LANHAM. May I ask here if there are any modifications since its last introduction, and since the last hearings that were held on it?

Mr. WILLIAMS. No substantial modifications; a few improvements in words.

Mr. LANHAM. Pardon me for injecting that question, Mr. Williams, but I simply wanted to know whether, in view of the fact that we have held hearings on this bill, there have been any substantial changes in the text of this bill?

Mr. WILLIAMS. There are no substantial changes.

The CHAIRMAN. May I suggest that you look at section 26 of the bill, which says, "This act shall go into effect on July 1, 1928." I suppose that will have to have another date, will it not?

Mr. WILLIAMS. Unquestionably; and as to that date I think the copyright office should be consulted. It will be necessary for the copyright office to make preparations for the enforcement of this bill, and if it can be ready on July 1, 1930, I would be rather surprised; and I think that Mr. Solberg or his office should determine, or at least advise your committee, in regard to that. I understand that Mr. Solberg is now on the ocean, having a vacation, for his health. He wrote me to that effect.

July 1, 1930, would be desirable. The sooner the bill can be put at work the better.

Now, this is the seventh-in fact the eighth-in a series of bills which commenced in the Sixty-eighth Congress, in H. R. 7539, introduced by you, Mr. Vestal, on March 4, 1924.

The bill as originally drawn came from the copyright office. I was then chairman of the committee on patent legislation of the New York Patent Law Association, and the governors of that association referred the bill to my committee and to another committee on copyrights, and the two committees took the matter up, considered the bill carefully, and I was sent down here to represent them.

I may say that I investigated very carefully the whole subject; I read the book of Professor Richards, who had just recently made a survey of the conditions of design in America, and it was a very discouraging book. It told of a condition of things where there was no encouragement to original design, because there was no adequate protection to original design.

This not the first attempt to secure legislation of this character. Many years ago an attempt was made, and at that time my friend, Mr. Thomas Ewing was Commissioner of Patents, and I got from him the history of that legislation which failed of passage.

Mr. LANHAM. Will you pardon me if I interpose a question, there? In view of the fact that heretofore there was some little controversy between the Patent Office and the Copyright Office with reference to this measure, now this might infringe on patents, or vice versa. Is there now any controversy between the Copyright Office and the Patent Office in that regard? I simply wanted to clear that up, if I can.

Mr. WILLIAMS. So far as I am advised, there is no controversy. Mr. LANHAM. The Patent Commissioner is making no objection to the bill on the ground that it infringes his rights or his things under the design patent legislation?

Mr. WILLIAMS. The bill has been changed to meet his views, and it stands in that form. As the bill was originally introduced, it did not in any way affect the design patent law.

Mr. LANHAM. We had quite a bit of discussion, though, with reference to the overlapping of the two fields, and so forth.

Mr. WILLIAMS. Yes. At the outset, I suggested that the two bills be allowed to stand side by side, with the result that I was quite convinced that the design patent law would be repealed; but Mr. Robertson, the Commissioner of Patents, said that it would be impossible for him to carry on the work of his office if he had to be sending every day to the copyright office to find out what designs had now been copyrighted.

The CHAIRMAN. At any rate, that does not now enter into our consideration?

Mr. WILLIAMS. No; we have put in the bill that the design patent law has been and is hereby repealed. We have given to those who have applications for design patents the option of coming in under this law, if they will, or of continuing their applications under the design patent law.

The endeavor has been made to change the legislation to meet the condition of the repeal of one law and putting something else in its place.

Now, why is such a bill as this necessary? The representatives of the designers and manufacturers will tell you that the business of copying new designs is carried on day by day; that as soon as a design is shown to the public it is copied; imitated in cheaper goods, and its value is depreciated; and that part of it I know from having attended the six prior hearings on this bill. But, from the legal standpoint, why is it necessary to have a new law? The design patent law has failed almost utterly in affording protection to those who originate beautiful designs, attractive designs, ornamental designs. The reasons may be enumerated as four..

In the first place, the design bill is modeled upon the patent law, and requires a search to determine whether or not the design is new. That search takes time. Almost every application is rejected, and it has to be amended or argued. The result is that six months or a year is required in the prosecution of the application for a designed patent.

Now, many of these designs are ephemeral. They come out and live three months, maybe, and then they die, and the design patent if obtained would be obtained nine months after the design was dead; so that the delay in obtaining these patents has been the objection of the designers, and is the reason that they have practically not utilized the law. The cost of obtaining a design patent is a serious matter, because a specification has to be written with claims, and lawyers have to be employed to do the work, and of course lawyers have to be paid.

Under the present law, following the plan of the copyright law, the man who originates a design sends a picture of it and an application to the Copyright Office, and it is put on record there, and he does not have to employ a lawyer for any detail after he has learned generally what the law is and what he should do. So the cost, and the delay, are two objections.

Then another objection is that many designs possessing originality are found, upon examination of everything that has gone before, not to be absolutely new, and under the present law the Patent Office takes the position that to change from what existed before, whether the man knew it or not, to what he has, must have required invention-invention in the sense of the patent law-and the result of that is that many original designs possessing a high degree of merit have been rejected as unpatentable, and so there has been no protection.

The last objection-and it is a very serious one-is that when the protection has been obtained, and when the owner of the design patent, obtained perhaps a year after he brought it onto the market, comes into court to punish the infringer, the man who has copied his