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Mr. CHANEY. Well, if this is the situation of this bill, we had better back out and start in over again.
Mr. PORTERFIELD. I think so.
Mr. CHANEY. I supposed that this bill was taken as a whole, and that all the parts of this bill would be fitted to the others.
Mr. CURRIER. I might say that I understand that the provision in reference to depositing those copies is not clear; that that is one of the things that the committee certainly would need to take care of.
Mr. CHANEY. The purpose, of course, was to do that.
Mr. CURRIER. I think it has been the purpose of the committee to take care of that, anyway, all the time. It will be made clear. You do not need to discuss that, I think, Mr. Porterfield.
Mr. PORTERFIELD. All right, sir. Going back again to this clause a of section 1. So far as purely creative works are concerned, of course, there is no use that one writer can properly make of the work of another; but in all works of science or works that in any way involve any original research he is obliged to go to the previous authorities; he is obliged to use the books of other writers. The writer of a legal treatise, for instance, must get his matter from the reports of the cases. That is the primary source. He must find his authorities, and to that extent he must use the works of others who have gone before him. Without that it would be impossible.
Senator Smoot. Mr. Porterfield, all that you desire them to add to that would be, on line 6, after the word “or," the word "material? Would that answer your purpose ?
Mr. PORTERFIELD. That would cure that section, yes, sir; that would cure that clause, I mean, of that section, so that the doctrine of fair use should not be cut out. The law is perfectly settled now in regard to that, and there is really no need for any such provision
Senator Smoot. I would suggest that your time is flying very fast, and I do not think there will be any need of spending any more time on this.
Mr. PORTERFIELD. Then, I will take up this next clause, clause b. I understood the chairman to say yesterday that the committee would not consider at all any such idea as that clause b should prohibit a man from reselling a book after he had bought it. Now, clause b does mean that, and it can not mean anything else. Clause a says,
For the purposes set forth in subsection b hereof, to make any copy," etc.
Mr. CURRIER. You do not need to give a minute's time to this subsection b.
Mr. PORTERFIELD. All right, sir.
The CHAIRMAN. Let me ask you this question: Is there any trouble under existing law in reference to the matters treated in subsection b?
Mr. PORTERFIELD. There is great dissatisfaction.
The CHAIRMAN. In what respect does existing law differ from subsection b?
Mr. PORTERFIELD. Subsection b is entirely omitted, in that now, when a man buys a copyrighted book, the complete title vests in him and he can deal with it as he wishes.
The CHAIRMAN. Would it under subsection b
Mr. WEBB. Under this section he could not sell that copyrighted book?
Mr. PORTERFIELD. He could not sell it without infringing the copyright.
The CHAIRMAN. The old law says “ vend.” Now, what is the difference between vending and selling?
Mr. PORTERFIELD. The difference, Mr. Chairman, is this, that it is all taken together, to make and vend—that is, to put it on the market; but when the article is once launched on the market it is an ordinary chattel and passes from hand to hand. Subsection b is designed to stop that very thing. I know that, Mr. Chairman, because the representative of a large publishing house told me that it was very desirable to cut off this secondhand book business.
The CHAIRMAN. You need not spend any time on subsection b. If the committee finds that that is the construction that may properly be placed upon it it would change it so as to correct it.
Mr. PORTERFIELD. I think there is no doubt of it.
Mr. JOHNSON. Mr. Chairman, may I interrupt and suggest that the discussion is really on the words following." or "_" offer or keep for sale”—and that the early part of section b is practically the same as the present word“ vend ? "
Mr. PORTERFIELD. No, sir; it is not.
The CHAIRMAN. It is quite unnecessary to have further discussion about subsection b, for the reason that I stated a moment ago.
Mr. PORTERFIELD. Section 3 isthat the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, but without extending the duration of such copyright.
I claim that that section is wholly obscure. It probably is intended to fit those cases in which copyright matter contained in various publications is brought together into one for some purpose or another, like collections of stories, and the like. But the present law, if it is observed in that respect, in most cases will give that very protection. The question here is not that the reproduction will vitiate the copyright. As long as the law of notice is complied with, the copyright is preserved in whatever form the copyrighted work appears. Section 3 must be read in connection with section 6, which provides that all “compilations, arrangements, or other versions of works, whether copyrighted or in the public domain, shall be regarded as new works subject to copyright under the provisions of this act." Therefore, if a man recompiles some of his copyrighted work, and copyrights that, he gets a new copyright, and as far as I can see he will have a new term of copyright running on this old matter of his. In that way the copyright could be made perpetual, simply by compiling and recompiling as often as the copyright was about to expire—by compiling it with something new and getting a new copyright-because section 6 says that this revision or new edition or compilation or other version shall be a new work, and there never would be any limit to copyright under it.
The whole question is one of notice. Now, the present law is somewhat deficient in that respect. But a very simple provision added to the present law would make all this perfectly plain and easy, without these long, cumbersome provisions about new works and new copyrights.
Mr. CURRIER. Suppose you formulate that.
Mr. PORTERFIELD. I can formulate that. I would not like to take the time to do it right now, but I can submit it to the committee later on in writing. Will that be satisfactory?
The CHAIRMAN. Within one week.
Mr. PORTERFIELD. Because, Mr. Chairman, I am very much occupied now, and I do not know that I could certainly say that I. could do that. If I could have two weeks to do it, I could certainly do it.
The CHAIRMAN (after consultation). We think that you should formulate your amendment, or any amendments to this bill, within one week, so that they can reach the Librarian and the House committee and the Senate committee not later than a week from Monday morning.
Mr. PORTERFIELD. Yes, sir; I will try to do it.
I wish now to call attention to section 7. It is in regard to matters in which there shall be no copyright. Section 1, you will observe, enumerates a good many things in very general terms which shall be the subject of copyright, and section 7 specifies those in which there shall be no copyright. Clause a, that section, specifies“ any publication of the United States Government, or any reprint, in whole or in part, thereof," and clause b refers to the works of foreign authors. But it is this clause a that I refer to—“any publication of the United States Government." The present law is that no copyright shall subsist in any publication of the Government nor in judicial opinions. That is the law now. It is perfectly well settled; and this bill, in undertaking to enumerate the things in which there shall be copyright and those things in which there shall not be copyright, seems to imply that everything that is not mentioned in section 7 shall be the subject of copyright, and particularly in view of section 4, which says that the works for which a copyright may be secured under this act shall include “all the works of an author.” Surely the opinion of a judge is one of his works, and it might very reasonably be so construed that somebody would get a copyright on the opinions of the courts. Who it would be I do not know; probably the judge, if he took it out; probably the first publisher that got a copy and published it; it is imposible to say. That is also very important in connection with what I said in regard to the effect of clause a of section 1—that it would cut off any sort of use of these books by writers. A man
could not extract anything from the opinion of a court without subjecting himself to liability for a suit for infringing these copyrighted reports.
Senator MALLORY. That could be corrected by putting in the words judicial opinions," could it not?
(r. PORTERFIELD. There is not any need for anything in the copyright law as to what is not subject to copyright. That is perfectly well settled now. All that the law needs to do is to add the things that ought to be brought within the protection; to enumerate those things that are entitled to protection.
Mr. CURRIER. Mr. Porterfield, referring to that part of subdivision a which reads or in a public document of any material in which copyright is subsisting, shall not be taken to cause any abridgment or any annulment of the copyright, or to authorize any use," etc., I may say that Congress at almost every session has passed some special act on that point.
Mr. PORTERFIELD. That is very well-yes, sir; I admit that. I had not gotten down to that. It is very well, indeed. I have known several cases in which Government officials have asked permission to * reprint.
Mr. CURRIER. At the last session we passed a special act covering a book of that kind.
Mr. PORTERFIELD. Yes; that is very well. But this enumeration of a publication of the United States Government as the only thing in which no copyright shall subsist is very dangerous. The law is settled now and putting this in must mean something, and therefore it must change the law and must limit it to publications of the United States Government.
Senator MALLORY. Are any of the State supreme court reports copyrighted ?
Mr. PORTERFIELD. The reports of the Supreme Court of the United States?
Senator MALLORY. No, no; the State supreme courts?
Mr. PORTERFIELD. Some of them are; most of them are. Very few of them are not; most of them are copyrighted, generally by the reporter.
Mr. CAMPBELL. They are when the reporter writes up the opinon, are they not?
Mr. PORTERFIELD. The syllabus?
Mr. CAMPBELL. Then you pay three or four dollars for your State report?
Mr. PORTERFIELD. Yes.
Mr. CAMPBELL. And where the order is that it should not be so done, but it is the opinion of the court, then there is no copyright, and you get your volumes for much less ?
Mr. PORTERFIELD. Generally that is so.
Mr. PORTERFIELD. The reports of the Supreme Court of the United States are copyrighted, I believe, by Banks Brothers.
Mr. CAMPBELL. It may be prevented, Senator, by the court itself.
Senator MALLORY. Yes; I know that.
Mr. CAMPBELL. But where it is not your reports are very expensive, because the reporter will invariably copyright them.
Senator MALLORY. I do not think any of them should be copyrighted.
Mr. CWRRIER. Would there be any danger in that provision if you made the amendment suggested by the Senator, “ judicial opinions,” making that general?
Mr. PORTERFIELD. I think not, then, though it seems to me that if it was simply limited to saying that no copyright should be affected by publishing it in any publication of the Government, the law is so well settled now as to the things that are not subject to copyright that I do not see any necessity for changing the language of the present law.
Mr. CURRIER. The question is, should this bill pass as to the other sections, whether you might not need that. I am not speaking about existing law; but suppose this was the existing law, Mr. Porterfield ?
Mr. PORTERFIELD. Then, if this were the existing law, if that provision about things in which no copyright shall subsist were omitted, the law would remain exactly as it is now.
Mr. CURRIER. But might not other sections of this bill extend the right so as to cover judicial opinions unless you excepted them directly?
Mr. PORTERFIELD. Then, in that view, I should think it ought to say “in any publication of the United States Government or any State government, and in judicial opinions.” I think the State governments ought to be included in this as well as the United State Government.
A GENTLEMAN. How about city ordinances ?
The question of the formalities for securing copyrights and maintaining them is a very important feature of the law, and this bill is particularly indefinite as to that. These provisions are contained in sections 9 to 17, inclusive.
It is first provided in section 9 “ That any person entitled thereto by this act may secure copyright for his work by publication thereof with the notice of copyright," and then it goes on to say that it shall be sufficient if this notice of copyright is affixed to the bulk of the edition published. As far as the notice of copyright is concerned, it seems to me very important that every copyrighted thing should bear on its face some indication that it is protected, and for how long it is protected. The interests of the public certainly require that. It is impossible for everybody who wishes any information in that regard to come down here to Washington and overhaul the Copyright Office. The country is too large for that sort of thing. If each copyrighted thing has a notice on it which shows that it is copyrighted for a certain number of years, that is prima facie evidence that it has that protection. If anyone wishes to make further investigation, he then can consult the Copyright Office and see if it has in fact been entered.
The provisions of this bill are wholly vague and uncertain as to what one must do to obtain a copyright. A great deal is said in this bill about registration, but the bill does not require registration. In one place it speaks of the necessary registration. These provisions