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in regard to registration are all directory. None of them is mandatory. And if the copyright is not recorded I can not see that the copyright is vitiated at all, because, as I said before, there is no provision in it for divesting a copyright which is once vested by publication with the notice of copyright.
Section 5 says that the application for registration shall specify certain things, and a person may obtain registration by complying with the requirements of this act. Section 15 provides that if failure to make registration has occurred by the error or omission of any administrative officer or employee of the United States it shall be permissible for the author or proprietor to secure the necessary registration within the period of one year. And section 53 provides that whenever deposit has been made in the Copyright Office of the title or copy of any work under the provisions of this act he (that is, the register of copyrights) shall make entry thereof, and certain fees are to be paid for it.
Now, it seems certain that that bill contemplates registration of the title, but it is just as certain that it does not absolutely require it, and if the copyright proprietor does not have his copyright recorded, it does not affect him at all. He still has his copyright, and the Copyright Office and the public are wholly in the dark about it; and there would be no way of telling them when that copyright began and when it would stop. The whole thing is vague.
The provision here about securing the necessary registration within one year is the only thing on which there could be a contention that the title must be registered. And then as to the notice-he is only required to put it on the bulk of the edition published. That seems to mean the edition by the publication of which he gets his copyright. The LIBRARIAN. It was not intended to mean that.
Mr. PORTERFIELD. Well, I am now speaking
The LIBRARIAN. I only suggest that to save your own time.
Mr. PORTERFIELD. Yes, sir; but we have got to consider this bill as it stands.
The LIBRARIAN. It means every edition published.
Mr. PORTERFIELD. It does not say so, though, and in that respect it changes the law as it is now. That is one of the variations.
As far as these formalities of obtaining copyright are concerned, there is only one way of securing strict performance, and that is to make the copyright depend on it. I believe that is the only method. If a man's copyright does not depend on his doing these things, he will not do them. He will not have his type set in the United States; he will not have his title recorded, and he will not have his notice of copyright.
The CHAIRMAN. Mr. Porterfield, you have already exceeded your time. Have you nearly concluded the statement which you desire to make?
Mr. PORTERFIELD. Yes, sir. I would like to say, Mr. Chairman, a few more words here. I do not suppose it is necessary for me to go into the question of the period of copyright. That is a question for the Congress in its wise discretion.
The CHAIRMAN. It is a question of discretion.
Mr. PORTERFIELD. Yes, sir.
Mr. WEBB. In that connection, do you think the period set in this bill is too long-life and fifty years?
Mr. PORTERFIELD. Oh, yes; I think it is much too long. I think the present law gives ample time.
This bill omits one very important provision, and that is the provision of the act of March 3, 1891, in regard to the entry of books consisting of several volumes. There was formerly some uncertainty as to how they ought to be entered. Now, the act of March 3, 1891, contained a provision that each volume of a book in two or more volumes, when such volumes are published separately, and the first one shall not have been issued before that act should take effect, and each number of a periodical should be an independent publication, subject to separate copyright. That is a very important provision, and it is entirely omitted from this bill. This bill talks about periodicals, and all that sort of thing, but does not contain any provision in regad to whether you shall copyright them separately or annually, or by volumes, or how. Presumably it is intended to repeal that clause and let the law stand as it was before.
Mr. HINSHAW. This repealing clause in section 64-
Now, the remedial provisions of this bill are very extraordinary, and particularly the provision in regard to the venue of suits. It is provided that any court-[Mr. Porterfield examined the bill.] Mr. CURRIER. Please state your objection.
Mr. PORTERFIELD. My objection to it is this: That it authorizes suit to be brought at any place where an alleged infringing work may have been sold.
Mr. CURRIER. You need not take any time upon that. We went over that and discussed, in an informal way, that question last June, and decided that the suit should be brought either where the complainant or the defendant resided.
Mr. LEGARE. Mr. Porterfield, turn to section 7 and give me your idea about that word "subsist." For instance, there is some intimation of including the State reports. What effect will that have on State reports of court decisions already copyrighted?
Mr. PORTERFIELD. I do not think that would have any effect on State reports already copyrighted, because it is very well settled that the copyright on law reports covers only the original work done by the reporter-that is, the syllabi that he has written are protected, and any statements of facts he may have made are protected; but there is no protection of the opinion, and anybody can reprint those opinions. That is the law now.
Mr. CURRIER. You would strike out the word "subsist" and put in the word "issued," or something of that kind?
Mr. BONYNGE. "Granted," or something of that kind. The use of the word "subsist" might seem to imply that if one now exists in such a work it should take away the copyright. It says that "no copyright shall subsist in any publication." If one is now existing, would it have the effect of destroying the copyright to use the word "subsist? "
Mr. PORTERFIELD. I think not, sir.
Mr. LEGARE. It looks that way to me-section 7.
Mr. PORTERFIELD. I think that is a bad word.
The CHAIRMAN. Mr. Porterfield, as I understand it, you are opposed to this bill in its entirety?
Mr. PORTERFIELD. In its present form. There are some provisions
The CHAIRMAN. You have no amendments to suggest to it?
Mr. PORTERFIELD. I have amendments to suggest to the present. statute.
The CHAIRMAN. Have you a bill that you desire to suggest to the committee to take the place of this?
Mr. PORTERFIELD. Yes, sir.
The CHAIRMAN. Have you prepared it?
Mr. PORTERFIELD. I have it pretty nearly done; I have not completed it yet, however.
The CHAIRMAN. How soon will it be completed?
Mr. PORTERFIELD. I think I can finish it within a couple of weeks. The CHAIRMAN. We think that you should present it by a week from Monday, at the same time that you present your amendments. Mr. PORTERFIELD. You will allow a week for that, too?
The CHAIRMAN. A week from next Monday.
Mr. PORTERFIELD. Yes, sir-well, I will present that.
The CHAIRMAN. Very well.
Mr. PORTERFIELD. Thank you.
The LIBRARIAN. Does Mr. McKinney desire to be heard at this point, before Mr. Steuart speaks?
Mr. MCKINNEY. I think this time will do as well as any, if it be the convenience of the committee.
The CHAIRMAN. How much time do you wish, Mr. McKinney?
The CHAIRMAN. Ten minutes will be given you.
STATEMENT OF WILLIAM M. MCKINNEY, ESQ., OF NORTHPORT, LONG ISLAND.
The CHAIRMAN. You are connected with the. Edward Thompson Company?
Mr. MCKINNEY. I represent, Mr. Chairman, the Edward Thompson Company, law publishers, of which company I am vice-president. I also represent that company as one of its counsel in important copyright litigations which are now pending, in which the Edward Thompson Company is both complainant and defendant; and I represent myself as a lawyer, a law writer, and an editor of law books.
Speaking of pending copyright litigation, I desire to call the attention of the committee to the fact that there is nothing whatever in this bill disclaiming its application to pending litigation, and under the rule of law relating to the interpretation of statutes, everything that is remedial in this bill would apply to pending litigation. Whatever copyright bill is enacted, I am sure the committee will agree with me, should contain some clause disclaiming its applicability to present litigation, because the rights that have grown up and are in litigation ought to be settled by the law as it existed at the time those rights were claimed, or the violation was claimed, and not by a law such as it is proposed now to enact.
Mr. McGAVIN. Čan a law that is passed now interfere with that? Mr. BONYNGE. So far as the remedy is concerned.
Mr. MCKINNEY. Certainly, so far as the remedy goes, this law
would be retroactive, and therefore the remarkable provisions contained in this bill, the astounding provision with regard to the impounding of literary property, and its destruction, almost, its practical destruction, on a mere claim of infringement, would apply to pending litigation.
I shall not pretend, Mr. Chairman and gentlemen of the committee, to review the multitudinous details in which I regard this bill as very deficient, because it would be impossible to do that even in an argument extending over a day. Mr. Porterfield has covered a number of the most important ones in his oral address, and in his written_brief, I think, handles the details of the subject exceedingly well. I recommend the perusal of that brief to the careful consideration of this committee. I only desire to say, along general lines, that it has struck me after very careful study of the bill and some years experience in copyright law and in copyright litigation, that this committee will make a serious mistake if it attempts to build up a copyright law on this bill. I do not believe this bill can be made the basis, by excision or inclusion, or by amendment, of a just and fair bill. It is uncertain, it is vague, it is verbose, and exceedingly voluminous. It unsettles a whole lot of law that has grown up and is the accumulation of the copyright learning of our judges for many years. We are just beginning to have a body of copyright law in this country, and if this bill is passed no copyright lawyer can advise a client, and the courts are going to be utterly at sea, it seems to me, until years of litigation have in some way settled some of the vague provisions of this bill. I sincerely recommend to the committee not to attempt, even, to build up on this structure a change in our copyright law.
It seems to me that as the copyright of music and the reproduction of music by mechanical contrivances is a very important and controversial subject, it might be well for the committee to deal with that subject in a separate bill-a musical copyright bill, for instance, such as just passed Parliament. If it is very important, in the discretion of the committee, that our present law relating to the importation of foreign books and the international copyright matters are not well settled, that might very well receive the attention of the committee. But we are going beyond that. We are unsettling the whole copyright law of the United States. We have an attempt here at a copyright code which I can see, from the remarks here made by the members of the committee, is not understood by any of us. How are the courts, how are the publishers, how are the members of the bar going to understand it?
I wish also to call the attention of the committee and claim its serious consideration for the part of the bill (I have not in mind the section, and it does not matter) which deals with the jurisdiction of the courts. I think that none of the learned counsel who sit on this committee will say that that is fair or proper, or that it could possibly be wise to sustain that remarkable provision.
In concluding I desire to say that the various remarkable provisions in this bill relating to the sale of books, to the jurisdiction of courts, and the impounding of published matter-its destruction, almost to the changing of the method of securing copyright, the remarkable provisions relating to notice, which unsettle all the law
upon that subject, make it seem to a casual observer as if there was some purpose that we can not divine to be subserved by this bill. I do not know, I do not charge, that there is such a purpose; but these provisions are so remarkable that it inclines one to believe that there might be some private purpose which none of us can understand. I thank you.
Mr. BONYNGE. Mr. McKinney, what is your view as to the proper life of a copyright?
Mr. MCKINNEY. There is so much to be said on both sides of that subject, and it is so largely a matter of discretion, that I hardly have an opinion. The law as it stands abundantly satisfies me, and it satisfies the publishing house which I represent. But if authors think it unfair and desire a further extension of time for their copyright, I can not see any reason why they should not have it.
The LIBRARIAN. Mr. Chairman, is it your desire to hear Mr. Steuart next?
The CHAIRMAN. Mr. Putnam, the committee would like to hear all the opponents of the bill.
The LIBRARIAN. In the line of criticism?
Mr. PETTIT. Mr. Chairman, may I suggest one further amendment regarding clause g of section 1?
The LIBRARIAN. That will be taken up later.
Mr. CURRIER. That is to be taken up later.
Mr. PETTIT. I thought this was the appropriate time.
Mr. CURRIER. No; we have decided to let section g go over.
The LIBRARIAN. It was, Mr. Chairman, on the supposition that the committee would like to hear any further criticism that may be available of the nature of Mr. Porterfield's that I asked Judge Walker just now whether he had anything to add of the same kind that he offered in June last. He will say for himself.
Mr. WALKER. I have a few points.
The CHAIRMAN. How much time do you wish, Mr. Walker?
Mr. WALKER. I want to speak to the committee in respect mainly to the music matter.
The CHAIRMAN. That matter is not at the present time under consideration.
Mr. WALKER. I understand so; but Mr. Putnam told the committee a few minutes ago that I had some light to throw upon other parts of the bill and that this was the proper time to do that.
The CHAIRMAN. Yes.
Mr. WALKER. And if the committee desires to hear me ten minutes will be enough for that purpose.
The CHAIRMAN. Very well; you may be heard for ten minutes, until half past 11.
Mr. WALKER. In section 22 of the bill I suggest that an amendment be made by inserting the words "or legal representatives after the word "assigns" in line 6 of page 16. No argument is necessary to indicate the desirability and necessity of that insertion, and its omission was probably inadvertent.
I regret that the copy of the bill I have is not the one I have made notes upon, and I will have to rely upon my memory.
The CHAIRMAN. Judge Walker, if you prefer you may submit in writing your proposed amendments.
Mr. WALKER. That will be better; thank you.