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SECTION 5 (1).
Labels and prints relating to articles of manufacture, etc. The committee agrees with the criticism of Mr. Walker that these are not properly classifiable under a copyright law.
SECTION 8.-Subdivision (a).
The criticism of Mr. Olin that the word "or" should be "and," so as to give a foreigner a right to copyright if he is residing within the United States at the time of the publication of his work "and" makes the first publication therein, is accepted, and the committee is also of the opinion that in this subdivision the words "at the time of the making" should be amended, leaving the section to read:
"at the time of the first publication of his work."
The time of the making of the book is an uncertain designation and difficult to establish.
Section 9 properly makes a copyright to depend upon the publication with notice of copyright. It is this notice which advises all outsiders of the proprietor's claim; it is proper that his rights should date from that time and not be lost to him during the interim necessary to comply with the regulations of section 11.
Section 15 is a liberal enabling section, tending to secure to the owner of a copyright protection for one year against any errors or omissions in complying with the requirements of section 11. The proviso is added that no action shall be brought for infringement until such requirements have been fully complied with. The committee is not in favor of the amendment suggested by Mr. Walker, that even after compliance no action should be permitted "based on any infringement begun before the time of that compliance."
Notice of the copyright and the owner's claim thereto is required by section 9, and that notice is sufficient for third parties to refrain from violating the right so established.
In the opinion of the committee, however, there should be a provision inserted in this section that if the requirements for registration are not complied with within the extension of one year permitted by this section the copyright shall be deemed abandoned.
SECTION 15.-Last paragraph.
The last paragraph of section 15 is meant to protect the owner of a copyright against the forfeiture of his copyright by an inadvertent omission of the notice of copyright in "a particular copy or copies" of a large edition, provided he has sought to comply with the requirements of the act and the notice has been duly affixed to the bulk of the copies published.
The committee deems this a fair provision. A suggestion has been made, however, that in lieu of the words "the bulk of the edition pub
lished," the line should read: "to the bulk of any and every edition. published."
This amendment would make the intention more obvious, and is recommeded.
The committee has already expressed its opinion that the protection of printers or typesetters should be compassed in some other way than by interference with the copyright of those entitled to it. But if this section is to remain, the committee is in accord with Mr. Walker's suggestion, that it should not be limited to typesetting or lithographic process, but should include any process.
The same objections to the clause itself are applicable to the requirement of an affidavit. The criticism has been made that a mere printer's affidavit made under this section, if false, would forfeit the owner's copyright. Upon reference to the section, however, it will be seen that the copyright is only forfeited by the "person" who knowingly makes a false affidavit for the purpose of obtaining a copyright. If such person make such willful affidavit "all his rights and privileges" are forfeited.
This section covers a mere matter of procedure, and is properly framed so as to reduce as much as possible the onus of the copyright notice to be affixed to paintings or other works of art. The only quarrel seems to be as to whether the term "some accessible portion of the work" should be enlarged by adding the words "and visible." The committee is of opinion that if it is accessible it can always be found if searched for, and this search very certainly should be put upon, any person who desires to reproduce the work.
SECTION 18.- Duration of copyright.
There can be no question that the universal tendency has been and is toward more ample protection of copyright; not in the interest of creating monopolies, but because works entitled to copyright are usually of public service, and because by its nature copyright is so susceptible to invasion and appropriation.
The question of the duration of a copyright is, however, entirely a question of policy and not a question of law. As to the policy, admitting that the interests of the public are to be protected as against the rights or claims of the author, the question arises whether the interests of the public are really injured by a longer term of copyright.
As Mr. Clemens has suggested to the committee, the cases where the value of any copyright survives the term of forty-two years are exceedingly rare, and not sufficient to be a matter of public interest. When the vitality of the work does survive that period it is because the work is of singular intellectual or ethical value, and it may well be claimed that in such instances it is proper that proportionate protection be extended to the author in view of the great merit of his work.
The committee can see no force in the objection that a period covering the life of the author and a number of years beyond is not, in conformity with the Constitution, "a limited period," and it is of
opinion that the life of the author and such a term beyond as would protect his children in the enjoyment of the fruits of his labor is a fair and reasonable protection.
Limiting the exclusive right of the author to dramatize or translate any works in which copyrights exist to ten years.
It seems to the committee a reasonable assumption that if the author has not exercised that right, either by himself or through his licensees, within a period of ten years, he has abandoned any intention of doing At all events, with this notice on the statute books the author has ample time within ten years to have such a translation or dramatization made.
One criti has suggested the change of the word "produce" within ten years to "made" within ten years. It seems to the committee that the sense of produce is obvious, but the change if made could do no harm and would obviate such possible misconstruction as that of the critic in question.
The criticism of subdivision (b) giving to the copyright proprietor a right to the recovery of damages, "as well as all the profits which the infringer may have made," is properly subject to the criticism of Mr. Walker, that it seems to cover a double recovery. As a matter of fact an analogous section in the law covering design patents has always been interpreted in the alternative and double recoveries have not been had. (Act Feb. 4, 1887, ch. 105, 24 St., 387.)
The committee advises that instead of the words as well as" the section should read "or, at his option, all the profits, etc."
The provision in the same subdivision (b) as to a minimum amount of damages is not new in the law. (See sec. 4965, R. S., as amended by act of Mar. 2, 1895.)
SECTION 23.--Subdivision (c).
The right to impound infringing material during the litigation, instead of applying to "all goods alleged to infringe a copyright," should be amended to read "all goods shown to the satisfaction of the court to infringe the copyright.
SECTION 23.-Subdivision (d).
The committee can see no objection to the clause which dooms to destruction all infringing reproductions of a copyright work, as well as the devices, plates, molds, matrices, or other means of multiplying such reproductions. This would not include the plant or machinery calculated to be used for other purposes, as suggested by Mr. Walker and Mr. O'Connell, but only such parts thereof as were used for the condemned reproductions.
SECTION 25.-Penal provisions.
This section does not, as suggested by Mr. Porterfield, extend any particular favor or protection of the criminal law to owners of copyright. It simply extends to this species of property a protection analogous to that extended to all other kinds of property. The main, if not the only difference between property protected by copyright and other property, is that unless notice is given in some formal way of such ownership, it is not always apparent to third parties. The statute has provided for the giving of such notice to third parties and the penalties for the violation of property rights are only inflicted upon persons who "knowingly and willfully" violate that right.
In order to protect innocent third parties the same section 25 makes it a misdemeanor, with fraudulent intent, to remove a copyright notice or insert a false notice of copyright.
The section seems to the committee to have been drawn with care and with moderation, and it sees no reason why punishment should not be meted out to the perpetrators of willful violation of rights of property secured under the copyright laws.
SECTION 30.-As to importation of copyrighted books.
The term importation of any "foreign edition or editions" may give rise to doubt, and the suggestion made by Mr. Walker of substituting the word "copy or copies" for "edition or editions" is advisable. Also the substitution of the term "any other process" instead of "lithographic process," if the type-setting clause (section 13) is to be preserved.
The provision allowing actions for infringement of copyright to be brought "in the district where the violation of any provision of this act has occurred," seems to this committee a departure from the general principles governing jurisdiction of persons, and was assented to in response to what seemed to be a very strong demand and in deference to the representation of holders of dramatic copyrights whose works were pirated by roving companies unreachable except by pursuit through the different districts of the United States.
In the opinion of the committee, however, more harm is likely to be worked by this extension of jurisdiction than good, and in its opinion suit should only be instituted in the district of which the defendant is an inhabitant, or where he has a regular place of business." This last provision is a concession, but if any supposed infringer has sufficient permanency in a locality to have established a regular place of business there, he can not reasonably complain if he is brought into court there.
The purpose of this section is to determine the separate estates subject to assignment with reference to copyright and should not include "the right to make any musical device by which music may be produced to the ear." This musical device seems, in the opinion of the
committee, to be classified under the patent laws, which afford ample protection for it, and it is not germane to a law protecting copyrights. All of which is respectfully submitted for the consideration of the Joint Committee of the Senate and House.
NEW YORK, December 15, 1906.
PAUL FULLER, Chairman.
JOHN E. PARSONS.
DECEMBER 17, 1906.
PAUL FULLER, Esq.,
71 Broadway, City.
DEAR MR. FULLER: I will ask you to excuse me from signing the report, for this reason: I am on the committee of the American Bar Association, and have been corresponding with Mr. Steuart in regard to criticisms of the bill, and while I concur in almost all that is said in the report you send me, there are a few points in respect to which I have expressed a contrary opinion. Unfortunately, I have been so pressed to-day, and am just about to take a train, that I can not go into particulars. I will keep the copy of your report and do this later, but I judge it is better to hand it in without my signature now, because time may be of importance and I may be compelled to be absent for several days.
Very truly, yours,