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in the record uncontradicted. If it is to be brought to the attention of either or both of the chairmen of the committees, will you kindly have the necessary action taken? Had we known about this protest in time, we would have asked to speak in reply to it. Yours, respectfully,
W. A. LIVINGSTONE.
DETROIT PUBLISHING COMPANY,
Detroit, Mich., December 15, 1906. Dr. HERBERT PUTNAM,
Librarian of Congress, Washington, D. C. DEAR SIR: Through misunderstanding a telegram I sent, I found on my return home that the examples of little prints in which the copyright notice would be covered by the mat used to protect the print, but in which such notice would be perfectly accessible to any person wishing to examine the print for such notice, had not gone to you. I am sending them to you by express, under separate cover, to-night.
In this connection the question may arise why the uncovered back of the mount would not be sufficient. The reply to that is that the little prints are more often than not stripped out of the mount altogether and then put in little close metal frames or similar holders and the original mount thrown away by the art dealer. Of course, if the notice were confined to the mount it would be lost from the print.
I can send down a sample of the miniature, which is a still better object lesson, but these miniatures are pretty valuable, and I hesitate to do that unless it is absolutely necessary. Yours, respectfully,
W. A. LIVINGSTONE.
THE PRINT PUBLISHERS' ASSOCIATION OF AMERICA,
Detroit, Mich., December 15, 1906. The JOINT COMMITTEE ON PATENTS,
Washington, D. C. GENTLEMEN: We have just seen for the first time a copy of the protest, dated December 6, by the American Newspaper Publishers' Association against the proposed copyright bill. Manifestly, we could not make any reply to such protest before seeing it, and we therefore respectfully request the inclusion of this letter in the printed record.
In general their protest is directed against photographic copyright.
We respectfully submit that if copyright is to be given to photographic property at all, there can be no good reason advanced why the law should specifically single out this class of copyright property as against all other kinds and give it a limited protection or a protection with reservations; that any provision which would make any kind of copies of a photograph not an infringement and not punishable must of necessity give to the copyright proprietor of such property a limited control instead of an exclusive control of his property ; that such discrimination would not only be unjust, but in practical cases daily arising would cause decided hardship in some cases and in others would lead to suppression of the work altogether.
To answer the first point contained in their protest: It is true that there are many photographs of comparatively little value, but it is equally true that there are numerous literary, artistic, and musical compositions of practically no value. If, therefore, this reason is a good one for restricting copyright on photographs, it is equally good reason for restricting copyright upon literary, artistic, musical, and dramatic compositions. As in these other classes of property, however, there are many kinds of photographs and photographic reproductions in which the cost and value of the work is just as great and the damage from infringement just as serious as that of any other class of property. Example: An artist who sells the right of reproduction of his painting charges the photographic manufacturer or publisher just as high a price for his copyright rights as he does an etcher or an engraver or any other reproducer. He demands from the photographic publisher just as stringent a contract in having his original and the photographic copies thereof protected against infringement in newspaper and any other form as he does from the etcher or engraver.
If your committee should make any distinction or difference between photographic reproduction and an engraving or etching reproduction, it would mean that the photographic reproducer, no matter if he were using the finest type of carbon photograph, would shortly be discriminated against by the artist in favor of the etcher or engraver. The photographic reproducer in this country would be driven out of the field and the foreign photographic reproducing house, which gets absolute protection abroad, would shortly preempt the entire field in this country as well as others where they are protected. Or, again : The cost of obtaining photographs of certain kinds of physical and scientific phenomena is as great and sometimes greater than the cost of production of an ordinary book. Part of the value and possibility of recompense for use of such subjects is the reproductive use in magazines and newspapers. The damage in such cases is just as real, just as harmful and decided as the damage incurred through the infringement of a short story in a newspaper or magazine. It will not do to say that because some unimportant kodak picture is not seriously injured by reproduction that all other photographic pictures must submit to infringement with impunity. As a matter of fact, not 1 per cent of the photographs taken are copyrighted at all, and nobody copyrights a photograph unless he believes there is certain value to him in its exclusiveness. The other 99 per cent are free to the newspapers.
Moreover, photographs of little or no intrinsic value are sometimes copy. righted for the express purpose of securing privacy. The damage to the photograph by publication may be nil, while the real injury to individuals from such publication may be very serious.
The second point urged is that the imperfect reproduction or imitation in a newspaper should not be made an infringing, damage-producing copy, subject to a penalty. If there is a question as to whether damage is caused by such infringement, surely the men who create the photographic property and spend their time and money in its production and sale are better judges of whether they sustain damage than the newspaper publishers who wish to appropriate the property for their particular uses without any compensation for it. As a matter of fact, very serious damage frequently results from this use. Certain artists, both in this country and abroad, will not permit reproduction in any form of their paintings in this country because of the ease with which newspapers may infringe such copies and escape punishment for such infringement. Photographic houses reproducing large numbers of subjects' frequently keep certain divisions of their subjects from publication, and at much cost, in order to prevent newspaper appropriation. Photographic publishers frequently have the experience of publishing a subject with good returns to themselves and then have sustained newspaper or magazine infringement which has either cut off the sale altogether or greatly reduced it. Again, it is very clear that photographic subjects taken for the express purpose of giving pictorial news, either through the newspapers or magazines or weekly periodicals, are taken for the express purpose of selling such material and for the compensation to be derived in such selling to newspapers and other periodicals. If this property may be appropriated without compensation, those engaged in that work will be obliged to give it up altogether.
We call attention to the fact that the existing law provides a penalty of $1 per copy for such infringements. In the case of a photograph not a copy of a work of art it limits the maximum to $5,000, while in the case of a work of art the maximum is limited to $10.000. Section 23 of the proposed bill makes the maximum in either case $5,000, which cuts down the maximum one-half in the case of copies of works of art and leaves it unaltered in the case of photographs not copies of works of the fine arts. There is no increase in the maximum damages in the proposed bill. The section has been drawn to effectively secure the recourse provided by law, but does not increase the penalty.
The third point alleged is that newspaper reprints of photographs are not such reproductions as can be substituted in sales for the originals, and that such reproductions tend to increase sales of the original photographs. Many art dealers will testify, if called upon, that they frequently have newspaper and magazine reprints brought in for framing, which certainly take the place of possible sales of the actual photograph. Not only that, but photographic and picture publishers again and again have experienced the blighting effect
of newspaper reproduction upon subjects which prior to such newspaper publication have been profitable ventures for them. Many explicit examples could be given. We will content ourselves with a case which is very typical.
This year certain newspapers reproduced some drawings of the illustrator Charles Dana Gibson. Following such reproduction there was an immediate falling off of a very considerable extent of certain reproductions of his subjects in other forms, which were intended to be sold directly to the public through dealers. Some subjects have a value due in part to their exclusive
It is easily seen that a newspaper reproduction would entirely destroy the value which is due to exclusiveness. Photographic publishers often sell material to book publishers and to high-class magazines in which one of the conditions of sale is that such book or magazine is to have the first and exclusive use of the subject. The acceptance of the subject and the payment of the price therefor is dependent upon such exclusive use. Any proposal which involves allowing newspapers to use such material as they please would, of course, make such arrangements impossible.
It is true that cases can and do arise where a newspaper publication may increase the sales of the original photographs. In all such cases, however, the owner of the original photograph is only too glad to give the newspaper the use of the subject without charge and to turn over to the newspaper a written license protecting it against any penalties for reproduction. In all such cases, therefore, they have nothing to lose by the preservation of the copyright property. There are many other cases, however, where the original owner not only is seriously injured by such infringement, but will also have his subsequent sales of the subject greatly reduced by such newspaper infringement. We respectfully submit again that the publisher of this class of property who finds it necessary to go to the trouble and expense of copyrighting his property so that he may retain control of it only does so because any lack of such control will conclusively be a damage to his property, and that as he is the man who spent the time and money to produce it and as he is the man who has the practical experience in dealing in such property he is likewise the only man who is competent to say whether infringement of the kind proposed is an injury to him or not.
The owner of any other class of property is given the liberty of exclusively enjoying it himself as he pleases. It is just as absurd to base an argument for legalizing infringement upon the alleged ground that no damage is done by the infringement as it would be for the man who makes use of another man's overcoat to base his defense upon the alleged statement that his use of the overcoat did not harm it. We are not interested so much in the matter of penalties as we are in securing an effective deterrent against infringement. The present penalties in the law (which are no greater in maximum amount in the proposed law) are not a deterrent against infringement, because the method of enforcing the penalty is not effective. We are asking for merely the same punishment with an enforcement which will be effective and likewise deterrent.
We assume the newspaper protest is confined to their letter of December 6, but if additional matter is to be filed by them we beg the privilege of making reply. Respectfully submitted.
THE PRINT PUBLISHERS' ASSOCIATION.
STATEMENT OF MR. H. N. LOW.
Mr. Low. We have many classes of works protected as reproductions of works of art.
The CHAIRMAN. Do you think the provision that has been referred to would give the right to reproduce music?
Mr. Low. Unless a works of art” refers to reproductions of music by mechanical means, to what other class does that refer?
The CHAIRMAN. That can be covered by saying "not including reproductions of music by mechanical means.”
Mr. Low. Very good. May I suggest an addition to clause (b) of
I section 1?
The CHAIRMAN. Why not do that when we take up the subject of musical reproductions? We are not discussing that to-day.
Mr. Low. This relates to subjects discussed to-day.
The CHAIRMAN. If you have an amendment to offer, you may offer it without comment.
Mr. Low. I suggest that the following be added to clause (b) of section 1, on the first page of the bill:
Provided, That such sale and exclusive right shall not continue to exist in any copy after it shall have been sold or assigned by the owner of the copyright therefor; and
Provided, That all similar copies of any work copyrighted under this act shall be sold by the publishers of such copies at equal prices to all persons without discrimination, and that said publishers shall not place any restriction on the prices at which the purchaser of said copies shall sell or dispose of the same.
Mr. CURRIER. I suppose you would be satisfied if subsection (b) were stricken out altogether?
Mr. Low. It seems to me the act would be incomplete.
STATEMENT OF REV. EDWARD EVERETT HALE.
The LIBRARIAN. Is it the pleasure of the committee to hear Doctor Hale next?
Doctor HALE. I hope it is not a matter of sentiment—I do not think it is to say that the whole business of copyright law came in in Queen Anne's time by statute, when they supposed they were giving a benefit to authors; but the habit, which I have observed this after
, noon, of speaking of authors as if they had nothing to do with the business is modern. Very high legal authority has pronounced that we have a common-law right whether there be any statute or not. It is undoubtedly true that in the century of Milton they thought they had a common-law right, and one gentleman here has seen the original contract by which Milton sold " Paradise Lost” for 20 pounds sterling. He thought he had something to sell, and in Queen Anne's time that common-law right was sufficient for everybody, Then Parliament in its kindness thought it would give a method of registration, so that the State should protect this common-law right.
What is proposed by this bill is to extend that period of the original common-law right. I suppose we live longer now than people did then. I suppose young men did not rush into literaturo quite so soon then as now. I know that my first copyright expired eleven years ago. · Perhaps I have lived too long. Å dentist once said to me, “I have now given you all the work you will ever require while on earth.” I went about my business and outlived that dentist, and have had to go to another dentist.
This proposed bill provides that a man may leave to his widow his rights whether those rights be placed on paper or not. Suppose I take up a section of 160 acres of land in the West; suppose I find coal on my land and sell the coal; it would be thought hard by me if at the end of twenty-eight years the Government should say " We will take that coal now; you have had it for twenty-eight years, and we will take the rest.” We thought the old statute worked much hardship on us until Congress gave us fourteen years more; but then Congress said, “We will let Tom, Dick, and Harry take this for their privilege."
We ask that that privilege may be extended. It seems to me not an unreasonable request that the term should be extended as proposed in this bill. I suppose that what the people want, what public opinion desires—and that is what we want is that a class of men may grow up who are willing to devote their lives to research and to literature. You do not want a man to make an invention of a new and useful article or art and never tell it. You want to encourage literature. You are glad to have had such men as Irving and Bancroft and Longfellow. You propose to encourage the existence of that class of men. That is what you do by your copyright law to a certain extent.
Then there arises another class of men who are called “ pirates," who say, “Go to the dogs! We will make what we can out of your genius and your efforts.
The statute originally gave the author what was undoubtedly thought sufficient protection for twenty-eight years, and if he lived longer than that he might have fourteen years more. But if he did not live longer than that his widow could not have the advantage of this continuous privilege. Now, I know, and probably many of you gentlemen know, plenty of instances where books grow more and more valuable every year. Take Bryant, for instance; his translation of the Odyssey brought better returns last year than the year it was printed. Had he or not a right to leave that increasing property right and value to his survivors, to his widow or his administrators? That is the question 'really before you. Do you want to protect and help authors, or do you not? Do you want to help and protect pirates who wish to take the fruits of the labors of others for their own?
I was at a meeting recently to consider some memorial to Langley. Langley made inventions, some of which were of first value, for the future. He died. Suppose his conceptions of those inventions were only committed to paper; is it quite fair to say that because they were only on paper before he died those inventions should thereafter be thrown open to the public? I do not think so. I think his widow should have had the same right in that property as in any other property.
But I am here specially to answer any questions.
Mr. HALE. I think I could have drawn a better bill, but it is satisfactory to me.
I said a moment ago that the value of some books increases as time elapses. That is true of my own books. More copies of my books have been sold in the last year than ever before.
The LIBRARIAN. I desire to make an announcement heretofore requested. Mr. Porterfield desires to make some general statement and perhaps some miscellaneous criticism of the bill presented by Mr. Steuart, chairman of the committee of the American Bar Association, present at the conferences in June. Mr. Walker also desires, I understand, to present later some statements of the music provisions, and it will be possible to take those up on detail hereafter.