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books at first hand and at second hand, can say that such an idea is absurd.
The old English term “ copy” is a law term. Copy” in the legal sense means the right to the control, not of the sheets, not of the paper and of the binding, but of the substance, the essence, of the book. The law that you are now considering undertakes to protect copy in the legal sense of the term. It is the essence of the author's work. You do not undertake in this copyright law, and in no copyright law will you undertake, to say anything whatsoever about limiting in any way the use to be made of the printed sheet or bound volume. That is an article. Unfortunately for our English language the word “copy” covering this physical thing and the word copy
” in the legal sense, covering the thought, is the same word, but there is no more actual relation between the two than between the spring of the year and the spring of a watch. I think your minds should be freed from any such thought. We publishers would be the last men to suggest anything that would hamper the resale of books we had once disposed of, because if we did, the booksellers would not buy our books. I think we can be trusted to protect our undertakings in that matter by any provision to which we assent, both for the interests of the authors and for our own.
Our friend “ Mark Twain ” made yesterday a joking suggestionand our friend Mark Twain must always be permitted his little joke—that at the expiration of the copyright term the publishers would go on “ rolling in their profits," while the poor authors would sacrifice any further returns.
Mr. Clemens very well understands, of course, that the publishers have themselves always worked for a longer term, the longest term in this country and in any country that could be secured. That does not look as though they were conspiring in “a grab game ” of copyright. I have myself worked persistently for authors' rights, as did my father before me. We have always striven to see the fullest justice for literary producers. I may say further that any publisher would rather control a market than go into a scramble, and that was one ground why the publishers initiated in 1841 and in 1886 the work for an international copyright, and have labored persistently since for 'its maintenance and extension. We would rather control a market, and we can do better for the public with a controlled market than with a scramble market. I may say that on my own catalogue nearly half of the publications are books which have been planned by the publishers. We can produce books, gentlemen, only if you will give us a sure title and control to that which we produce, control at home, and as far as under international arrangement may prove practicable, recognition abroad. Anything that weakens the property title interferes with production, interferes with higher education and with the interests, therefore, of the consumers—interests that you gentlemen ought to represent and very properly do represent. All we want is a sure title for what we have produced. We are not asking for protection in the tariff sense of the law. We get some of that in the bill now, and individually I do not want it. We are asking for protection in the legal sense of the term, and therefore we are not coming before you asking for a privilege; we are only coming for justice, justice for the authors and justice for ourselves.
I'am prepared to confirm the understanding of my friend Mr. Sullivan in regard to what has been assented to in the original pro tection provisions of this law, the manufacturing clause of 1891, which we have not undertaken to disturb, and in regard also to the rather drastic addition to that manufacturing clause, the addition, namely, of a certificate that we have done our duty under the law. I wish to say frankly that the publishers protested against that. We do not understand why, after obeying the law like other people, we should also have to swear to that fact that we do obey the law and to pay money for certificates. But we have accepted it. We accepted it in conference with Mr. Sullivan, and we have nothing further at this time to say about it. We accepted it as we have accepted a great many other things that we do not approve and that we do not find just.
Our main interest is for the security for the authors and for their children and grandchildren, and for their right to the furthest and fullest returns from their labor. As the business representatives of the authors, we ask for a law that shall further the development of literature and the higher education of this country. We publishers are, it is true, also working for gain. I suppose all active citizens are workers for gain, but we are working for gain in an honorable profession which has to tackle not a few difficult problems. We get our living as best we can by trying to serve the authors and the reading community. You have already given us your thoughtful and courteous attention and we are ‘now depending upon your services and power as legislators to assure us a copyright law which will be for the benefit of this generation and for generations to come.
Mr. WEBB. One moment, Mr. Putnam, before you leave. I desire to ask one thing about making contracts between publishers and authors. Suppose an author in this country sells to you his book at the royalty of 50 cents on each book, and that book is also published in Australia or some foreign country. What would be the difference in the royalty the author would receive, generally speaking, between what you give here and what he would get for his Australian copyright?
Mr. G. H. PUTNAM. You are naming a fixed price instead of referring to the form that the royalty usually takes, of a percentage; but taking it on a dollar-and-a-half book we will say that the royalties range from 15 to 25 cents a copy. We will say that his book has been published for railroad sale in Australia, to be sold for, perhaps, a shilling. He would not be likely to sell the right to Australia on a royalty basis at all. The country is too far off and it would be too difficult to get settlements. He will let the Australian publisher put that book into a railroad edition, say, for the round payment of £10. He is getting, say, $200 per thousand copies which are sold here. But he has sold his copyright in Australia for £10, and every Australian copy that comes in here and is sold takes away property from him just as much as it takes it away from his American puhlisher. His book is being sold here on a royalty basis, and if the Australian copy takes the place of the copy that I may publish then, of course, as I say, his property is being taken away from him just as much as my property is being taken away from me. Look at it in
The author gets a copyright and sells that copyright to me for a big market for $5,000, and will sell that copyright in a
small market for some such small price as I have named. We now come back to the old principle of law that law is no respecter of persons. I have paid for property under the law. Now, if the edition from the small market comes in and is sold here, that is taking away my property. It might be done under the law. It has been done under the law of 1891. I explained yesterday the interpolations that were made in that law without consultation. That was appropriation. It was legalized appropriation; legalized robbery, if you will. That is what it amounted to. I paid for my property and then under the law, if it has been heedlessly framed, my property is taken away from me.
Mr. HORACE PETTIT. I would like to ask a question there. Does that same argument which has been used for the Australian edition apply to the English edition. No one wants a shilling railwayedition book in a public library.
Mr. G. H. PUTNAM. The importation of a book is sometimes desired, not because it is cheaper, but because on one ground or another it is different, and for one purpose or another it may be better. The English edition may contain more illustrations, though that is not frequent under present conditions. Our American people demand the best and get the best. We point out that just before 1891, if a library or an individual in this country wanted an English edition of an American work, there was no difficulty of his getting it from the ordinary trade representatives, through the-opdinary channels of trade. Under the law as we have framed it, the libraries can still import one copy of that English edition, and if they do that twice a week they can get 104 copies a year, and I suggest that in so far as that is concerned we have gone as far as we ought to go.
Mr. THOMAS NELSON PAGE. Mr. Chairman, may I call attention to one thing at this time? It is well known, no doubt, to many of you that in England the control of the great many classes of books, particularly fiction, that are issued in England vests in what is called the Mudie libraries. They are simply public libraries having subscribers, and, as I understand it, they really control the price of books, the issue of books largely, in the beginning. For instance, when Trilby, which we all remember with a great deal of pleasure, was sold by Du Maurier to Harper & Brothers years ago, Harper & Brothers published an edition of Trilby which went all over the country, with the drawings by Du Maurier himself, and that book was published, I suppose, for $1.50 in this country, certainly for not more than $2. Trilby was published in England as a guinea volume by the Mudie Libraries—I mean they controlled it—a guinea volume, without the illustrations. I think that some years afterwards they did publish a cheaper edition, with illustrations, but I am not positive about that, and if this clause about libraries should be retainedand I am not prepared to give what weight my views may have absolutely against it-I think that at least it ought to be carefully guarded, so that the libraries which are included in the clause shall not be libraries that are established simply for private purposes. These are beginning now all over the country. We have various libraries now, circulating libraries all over the country, and possibly, under this clause, those libraries may very seriously interfere with the publishers' business, as Mr. Putnam has very justly said, and
with the authors themselves, whose interests are really absolutely defended by the first-class publishers of this country.
Mr. G. H. PUTNAM. Just one word more, Mr. Chairman, in regard to a manufacturing detail. We have accepted the manufacturing provisions of the bill, and those manufacturing provisions include a restriction as to the manufacturing in this country of the plates, of illustrations, and what not, lithographs, etc. We have arranged with the interests represented in several conferences that in the cases of designs, where the objects to be produced did not exist on this side of the Atlantic, permission should be given to produce on the other side of the Atlantic the original lithographic photogravures or photographic plates, as might be the case. If that permission were not granted no copyright could be secured for books coming into the country presenting views of the great buildings abroad, or of the great works of art, or possibly of scenery, such as Mount Blanc. In the case of lithographs, for instance, the color scheme has to be worked out in the immediate view of the object to be taken. If the narrower views which were talked over in some of our conferences should prevail and should again be emphasized by your committee, then the exception specified should be permitted, unless you are going to throw out a great deal of important art work, in the cases where the object to be reproduced does not exist on this side of the Atlantic. In these cases the photographic negatives and the lithographic designs must be produced on the other side and must be permitted to be used in copyrighted books produced on this side.
The Pending Copyright Bill.
MEMORANDA BY GEORGE HAVEN PUTNAM.
[ Section IX, page 4.]
Under this section it is provided that the notice of entry of United States copyright required under the American copyright law is to be affixed to all copies of the work "published or offered for sale in the United States.” This simply makes a more specific wording of the purport of the existing law, as this law has been interpreted by the courts during the past century.
The suggestion has been submitted to your committees that this requirement for notice should be held as binding, not only for copies published or offered for sale in the United States, but for copies produced or offered for sale anywhere throughout the world.
Against this suggestion it is contended that any attempt on the part of the Congress of the United States to enforce provisions of American law upon parties who are not citizens or residents of the United States must, of necessity, prove a futility. Apart from the question of the wisdom of attempting such legislation it may be said most definitely, from the point of view of business experience, that it would prove impracticable to secure the fulfillment of any such obligation on the part of publishers or of printers throughout the world.
The copyright of hundreds or thousands of American publications would be forfeited through the inadvertence or the ill will of some stray printer in Melbourne or the Cape Colony.
The suggestion for the change in our bill comes from a person who has himself recently attempted to bring into publication in this country an edition of the revised Webster, the reprint of which he undertook with the full knowledge that the book was covered by American copyright. His pretext for so doing was that the edition, as printed in London, did not contain the notice of such copyright. Those who favor this specification are parties who are opposed to copyright, or who are desirous of securing facilities for its infringment.
[Section XIII, page 5.]
The provision under which a book securing American copyright must be printed from type set within the United States or from plates made from such type is in line with the manufacturing provision of the existing law. This provision should not be modified in such manner that the requirement should in any way be widened.
A suggestion was submitted before your committee that the book securing protection under the American law should in its entire contents or material be produced within the United States. Such a requirement would involve the necessity for the entire production in the United States not only of the type and of the printed sheets of the book, but of the illustrations.
Under the existing law, copyright can be secured in the United States for illustrations produced under one of the higher art pocesses, the production of which has been carried on abroad. The ground for this provision is that illustrations, and particularly illustrations produced by any processes to be described as “art processes,” must be produced in the places in which the originals exist. For photogravures, the negatives must be made in the place in which the original is located.
For lithographs and color reproductions generally, the color scheme must be worked up by a designer working in view of the object to be reproduced.
In case the requirement should be enforced that the entire work must be completed within the United States, it would be impracticable to secure for American readers in any books with copyrighted text the advantage of artistic illustrations reproduced from the originals of any objects which did not exist on this side of the Atlantic. As, for instance, for scenery Mount Blanc; for business, St. Paul or St. Peters; for works of art, Raphael's Sistine Madonna," or Murillo's “Immaculate Conception."
Such a change would be a step backward from the present law and would constitute a material obstacle in the way of the literary and art activities and the higher education of the country.
The present bill provides that the work shall be done in this country, “excepting where the object or originals to be reproduced can not be secured in this country.”
With this provision the representatives of the trades having to do with art reproductions expressed themselves in the copyright conferences as satisfied.
[Section XXX, page 16.]
Under this section the importation into this country of copies produced abroad of works which have secured American copyright is prohibited. This is the natural and logical application of the principle of copyright under which the producer of the article secures the exclusive control of its sales. To this prohibition certain exceptions are made under paragraph (e).
Under those exceptions (see clauses 3 and 4) libraries, whether incorporated or unincorporated, are left at liberty to import, irrespective of the permission of the owner of the copyright, not to exceed one copy of a book in any one invoice in an edition of such book that has been produced abroad.
If this provision becomes law, every library, school, academy, etc., throughout the country has the privilege of importing in successive invoices, say to the extent of two per week, copies which for any one book could aggregate as many as 104 per year.
Such an authorization appeared to present every possible facility to the institutions, libraries, etc., large or small, which on one ground or another found it desirable to utilize European editions of American books, and the managers of which did not want to incur the labor of securing the permission of the owners of the copyright of such books. The provision thus drafted, while in itself constituting a most exceptional exception to copyright law, an exception that does not obtain either in the copyright law, of Great Britain or in that of any one of the continental states, was assented to by the authors and the publishers who have a direct business interest in controlling the sales in the United States of copyrighted books for the purpose of meeting the views of the librarians.
It was assented to in the copyright conferences, after discussions that extended through a period of twelve months, by the official representatives of