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are asked not to take away the entire copyright of the property or confiscate it. When you are arranging to print the book you can have your printer put the notice in the proper place and it generally goes through the press without difficulty. But we manufacture many kinds of prints which you can not put through a. printing press, and the notice has to be put on by dies afterwards, so that in order to take care of the notices now required we have to have a number of dies. These are sometimes printed or impressed in small quantities at a time, and if the wrong die is pulled out the copyright is extinguished altogether. If we send out an unmarked copy or a defective copy without that mark we concede that the innocent infringer should not suffer for it. But we protest against that particular thing, shutting off all recourse against other people who are advised of our rights and have had full notice and yet take advantage of that technicality to infringe with impunity.
The LIBRARIAN. Have you anything to say on the question of dam
Mr. LIVINGSTONE. I wish to point out that by section 23 the statutory damages for reproduction of works of art are reduced onehalf in the maximum. They are now $10,000, and this section limits it to $5,000. The operation of the present law is such that for 90 per cent of the infringements there is no effective remedy at all. The result is general contempt for the law in our particular domain. Those people who are opposed to this change of the law have in many cases come to feel that by their appropriations they have secured vested rights, and consequently are much disturbed when an effective remedy is proposed.
In that connection I wish to point out the great difficulty in measuring damages for infringements of our class of property. Where there are reproductions in composite works it is almost impossible to segregate the part that is contributed by the infringement from the balance of the composite work. You can not effectively do that, and in most cases you can not do it at all. In any case it is done with greatest difficulty. Also, many cases arise in which you can not adequately measure the damages in court.
These provisions are no innovation on the existing law. They exist in several other branches of the law.
Mr. CURRIER. You are satisfied with section 23 as it stands?
As to publication: We wish to protest particularly against any definition of the word "publication " which would render a work of art published before the first authorized vending or the first authorized public distribution of the work. A great deal of trouble has come from the present state of confusion.
Mr. CURRIER. How would you define that word“ publication," or is that definition satisfactory as it stands in the bill?
Mr. LIVINGSTONE. It is satisfactory in intent, but I think there is one little defect which should be corrected. If you will turn to section 63, line 5, on page 39, before the word " distribution," we would suggest the insertion of the word “public,” because there is sometimes a private distribution, or a limited distribution.
In the seventh line, after the word “sale," we would suggest the insertion of the words“ or publicly distributed,” because sometimes subjects are publicly distributed and are still never placed on sale.
There is one other point involved in that matter of publication, and that is, exhibition of works of art. Even under the existing law exhibition is not necessarily publication, as has been construed by the courts. We think that while an attempt to define the word “publication ” as a whole would be very difficult, yet a definition of the date of publication is very easy, and this section, as it would read with these proposed amendments, would make a perfectly safe line of demarcation which anybody could understand and which would avoid many of the troubles now existing. We protest strongly against exhibition being considered in any sense as publication, and on this point we are prepared to give you practical examples, to give you extracts from court decisions, and anything else the committee may desire bearing upon the question, if there be serious doubt. We do not want to take up time unless there be serious doubt.
There are two other points I wish to allude to, and the first is merely to show how easy it is for people to come here with honest intentions and yet really misstate the facts. Here is an illustration : On page 135 of your hearings in June appears the following:
In section 5, paragraph (h) should be eliminated. This paragraph was intended to cover perforated music sheets or talking-machine records, which are to be otherwise provided for. As to other matters, it may be said that if the reproductions referred to are copies of things already copyrighted, they are infringements; if not copies, they are works of art in themselves, under paragraph (g) of section 5.
The statement is that that paragraph was intended to cover perforated music sheets.
The LIBRARIAN. I want this point to be clear to the committee. In the criticisms submitted by Mr. H. N. Low there is the criticism of a specification under section 5 as a class for registration. Section (h) is “ Reproductions of a work of art.” Now, Mr. Low proposes that that should be struck out, and he said it was intended to cover mechanical reproductions of music. Mr. Livingstone, as a print publisher, wishes to submit a different view. I can not recall that in the conference that word "reproduction" was advanced in the interest of music provisions at all, nor did I recall that it was advanced in the interest of print publishers.
Mr. LIVINGSTONE. The statement in this paragraph is that this paragraph was intended to cover these reproductions. As a matter of fact, that word “reproduction,” as used in this bill, originated entirely from the graphic reproducing interests. When it was first put in the original bill, of which the present bill is the final evolution, nobody dreamed, so far as we know, that it included perforated music rolls" or musical reproductions of any kind. A certain lithographic interest insisted from the beginning that the reproductive rights on graphical work should be kept distinct from the rights upon the original itself. The gentleman who made the statement before you in the hearing in June therefore makes an assertion which is not only misleading but absolutely false.
Mr. CURRIER. Could not that be remedied by striking out section (h), in regard to reproductions ?
Mr. LIVINGSTONE. You will find that there is another reason for retaining it. There are different terms of copyright for different kinds of property. You will find that an original work of art has one term of copyright and that a reproduction of a work of art has another term, a reduced term. The evolution of that section 5 was cne extending over a year, and its present form was finally worked out by a conference between the representatives of the two bar associations and others concerned. The point is that this particular case is typical of a number of other cases in which people have been misled into stating things not true.
Mr. CURRIER. Three or four words would remedy that.
Mr. CURRIER. Just exclude the reproduction of music by mechanical means.
Mr. LIVINGSTONE. Yes, sir. A statement was made to you that the extension of the limitation of action from two to three years was greater than that in the patent law. The limitation of action in the patent law is six years.
We respectfully, but very earnestly indeed, wish to ask this caution: This bill is a very condensed bill. The process of its evolution was such that it is now boiled down to perhaps one-third of its original size. There is hardly a provision in it which does not affect almost every other provision of the bill, so that you can not disturb one without running the risk of serious disturbance of another. You may taken one section of the bill and amend it with reference to the musical interest if you like and have no idea of affecting the art interests or the print-publishing interests, and yet it may very seriously change or affect those interests by reason of this interdependence of the different sections. May | make the request, if you should hereafter decide to change the form, that we at least be allowed to see the new form and submit objections if we desire. I am referring to the bill as a whole. We would not wish to have it crystallized after change without a previous opportunity being offered to us to object or criticise.
The CHAIRMAN. We could not very well promise that. We shall probably not agree upon the form of the bíll until very late in the session. The bill may be largely rearranged in committee.
A MEMBER. And it may be rewritten in the House.
Mr. LIVINGSTONE. I only wish to emphasize the importance of this interdependence of the different sections and the danger of making change in one section without a due consideration of its effect upon other sections.
The CHAIRMAN. The committee will make every effort to guard it.
Memorandum of the Print Publishers of America.
To the honorable the Joint Committee on Patents of the Senate and House
GENTLEMEN : The Print Publishers' Association of America includes a majority of the leading print publishers. Primarily their business is publishing works of art, but some also produce both written and pictorial matter, while others are concerned with commercial advertising. We are manufacturers as well as publishers and a number of our members operate their own factories.
These facts show that our interests are varied and that we have been compelled to study the equities of copyright from a broad and not a narrow point of view. Being both creators of original works and reproducers of the works of others, we have a practical appreciation of both sides of the question and of the troubles and inconveniences that will be caused by the proposed changes in the law. We produce works in etching, engraving, lithography, photogravure, photography, and some secret processes. We are therefore interested in protecting all processes.
The conditions of operating under the present law have become more intolerable every year. The handicap to the American art publisher is such that he can never hope to successfully compete in certain fields with his foreign rivals until such conditions are ameliorated.
The proposed bill does not give us all we want, but it is such a great advance over existing law that we are glad to support it. We believe it to be the most equitable compromise between conflicting interests which is practicable at this time.
The only suggestions we submit as to changes are those of phraseology for the purpose of making the intent more clear. They are contained in the attached memorandum “B.”
Certain sections of this bill in which the owners of artistic property are vitally interested have been criticised. We therefore wish to briefly allude to them.
We believe that consideration of this bill should proceed on the principle that intellectual property has an equal claim with physical property to the protection of the law and that its enjoyment should not depend upon the absolute observance of formal technicalities, the most trifling breach or omission of which results in confiscation. We call attention to the fact that no civilized country, save Canada (whose laws were modeled upon those of the United States), makes copyright dependent upon formalities in like degree with the United States. Many leading countries dispense with formalities altogether. Even when all initial formalities are complied with, the American publisher continues to hold his property in constant peril.
SECTION 3—Copyright protects copies.
This section has been questioned as an extension of existing law. We think that it only makes existing rights more explicit. Clearly, unless the copyright upon a work follows and protects all reproductions or copies thereof in any form or style, inextricable confusion must result and the object of the law would fail of accomplishment. For a clear exposition of the necessity of such principle we respectfully refer you to the case Schumacher v. Schwencke (30 Fed., 690). (See “A” attached.)
SECTION 5–-Subject-matter. Criticism is made because this section does not include specific terms for the different works but new processes are invented from time to time and manifestly these can not be included before known. Neither can secret processes be conveniently described, and there is not only hardship, but decided danger unless only general inclusive terms are used.
SECTION 11.—Time for deposit. Objection is made to the thirty days of grace allowed for deposit. The original law gave six months, which was subsequently reduced to thirty days, then to ten, and then omitted. These reductions have always been urged by interests inimical to copyright who wish its conditions as exacting and technical as possible. When deposit is required in other countries (and in many it is not) the time of grace varies from one month to a year. In the case of books, it is almost always possible to arrange for the deposit of proofs at least on or before publication. There are prints, however, in which such arrangement is impossible. An easily understood case is that of a pictorial news service in which the prints lave to be published the day on which the event occurs and earlier than it is possible to make registration or deposit in Washington. Copyright upon some works is consequently lost because of the impossibility of complying with the law in time.
SECTION 13.—“Manufacturer's clause.” Existing law requires that to obtain copyright upon a photograph it must be printed from a negative made within the limits of the United States. The proposed law removes this embargo and allows copyright upon negatives taken anywhere. The ostensible reason for making the negative within the United States was to protect American photographic manufacturers. As a matter of fact it had just the contrary effect for it practically confined their operations to this country. When they sent their men to take negatives outside of the country, such negatives, even though brought into the country and solely printed within the limits of the United States, were denied any protection whatever. Many negatives on account of the location of the subject can only be made outside the limits of the United States. To illustrate: Paintings in a foreign gallery, the architecture of a foreign cathedral, and scientific observations of phenomena not occurring in this country. The lack of protection upon such negatives makes it impossible in most cases for the American house to undertake the expense. The result is that foreign competitors who are protected in all countries subscribing to the Berne Union reap the benefit. Similar examples can be cited in other forms of medium. We wish to point out that reproductions of art works have limitations distinctly different froin literary work. An American print house reproducing extensively the galleries of Europe is unknown. We earnestly urge that no extension of the manufacturing restrictions be made beyond those already included in the bill.
SECTIONS 14 AND 15.—"Notice.”
Except the question of effective punishment for piracy, nothing is of more importance to us than the question of notice” upon the copyright property. Why should unmarked intellectual property be treated as abandoned to the public any more than a man's overcoat without his name on the sleeve? Outside of Canada, no other country in the world compels the drastic notice requirements of the United States. In the majority of cases they require no notice. Where they do, it is of a very limited character. France, Germany, Austria, Italy, and Belgium require no notice upon artistic works. England only requires marking in the single case of engravings, and then simply the name of the manufacturer, as the result of an obsolete law. In no other class of copyright property is the question of notice so great a hardship, nor one in which its use affects to the same extent the commercial value of the subject. Probably no bookseller ever had a customer decline a book because there was a copyright notice in it. The art dealer not infrequently has customers decline both the original work and also the reproduction because of such notice. Aside from the defacement and the great difficulty of applying it in certain cases, it has a direct effect upon the commercial value of the subject. Notice such as the United States requires is considered a barbarism in most foreign countries. Many artists will not submit to it, and the American publisher who wishes to operate under our copyright laws is therefore debarred at times from subjects he wants, and finds his field restricted as compared with his foreign competitor. Even under the present law, the United States court of appeals recently affirmed that the framers of the present law had no intention of compelling notice upon original works of art. This is no new principle even to the present statutes. They recognize the difficulty of applying notice to works of art and the defacement and impairment of value from such application. They therefore allow inscription of notice upon the mount, and in such cases as molded decorative articles, upon the back or bottom. We strongly protest against any abrogation of these rights.
The practical difficulties of dealing with “notice" in works of art are without number. To illustrate: The methods of manufacture of certain kinds of prints make it impossible to imprint a uniform notice as can be done upon the title-page of a book. Often notices have to be applied individually by dies or otherwise after the print is finished. By inadvertence, even with the utmost care, a whole copyright has been lost because a single copy escaped without mark, or because the wrong copyright die was used. Many prints have to be sold unmounted. To reduce defacement as much as possible, the notice must be printed near the edge of the print. The ordinary operations of mounting and trimming will sometimes cut off the notice. These are dangers from which other publishers are practically exempt. If a single defective print escapes, the proprietor is punished by the destruction of his whole copyright. Nothing he can do will reinstate it, and even those who have ample notice of his rights can pirate with impunity.
The reasons for omitting dates and otherwise condensing notice are to reduce the defacement as much as possible, to reduce the number of notices required on a single article, and to make its application more simple and safe. The notice provided gives ample warning that rights are reserved, and if an individual wants a complete abstract of title of the property, he can apply either to the owner or the Copyright Office. If every country were to require “notice” like the United States in its own phraseology, the face of a work of art, in order to get protection in all countries, would be fairly covered with the different notices exacted.