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Mr. CURRIER. What section of it?
Mr. OGILVIE. The section in regard to damages. I regret very much, Mr. Currier, that my copy of the bill is lost. I thought I had it with me, but I have not.
Mr. CHANEY. It is the section relating to damages?
Mr. OGILVIE. The section relating to damages. There is no provision here whereby a man who has a perfect right to publish a foreign book can get one penny of damages from a man who deliberately holds him up without any just cause for it. That that is sometimes done under the present law is evidenced by the fact that the publishers of “ The Simple Life,” in New York, got after a publisher who translated a French edition of it and held him up until they could get their edition on the market. He had absolutely no recourse, and yet his business was injured.
There is no provision in here to take care of any man except the man who starts a suit.
Mr. CURRIER. Just formulate what you want.
Mr. OGILVIE. I will do that also in connection with the other matter.
Another thing—the liability of the printer—and this will interest Mr. Sullivan. There is no printer in the United States whom I can not get in trouble—serious trouble—so serious that it might put him out of business. I take to him a set of plates about which he knows nothing as to the existence of a copyright on them. He prints them for me. He can not know anything about it. He can not read everything that goes into his place; it is utterly impossible. He prints that book, and under the proposed law the infringement may continue for three years—two years as it is at present, but three years under the proposed law. The infringement may continue for three years lacking one day, and then the owners of the copyright can get after him and collect damages, either from the man who published the book, or, if he is irresponsible, from the printer who printed it, and he may get a judgment against him of such magnitude as to absolutely wipe him out of business. I think that is unjust. That portion of the law should be changed so as to read that if he wittingly, or after notice, prints a book on which there is an existing copyright he should be liable, but not before that. I am not a printer, but it occurred to me that that was perfectly fair.
Gentlemen, I have occupied so much of your time that I do not feel at liberty to go any further, although there are some other things I would like to talk upon; but I will not do it. I thank you for your indulgence.
The LIBRARIAN. Mr. Chairman, I understand from Mr. George Haven Putnam, representing the Publishers' Copyright League, that he would like to have an opportunity to use five minutes now.
The CHAIRMAN. Very well.
The LIBRARIAN. In connection with some of the suggestions of Mr. Ogilvie, as they affect the publishers.
STATEMENT OF GEORGE HAVEN PUTNAM, ESQ.
Mr. GEORGE HAVEN PUTNAM. Mr. Chairman and gentlemen, I do not expect, on behalf of the publishers, to take up your time with any general statement. We have no new matters to suggest for
your consideration, but are here to support the bill as drafted. We may ask the privilege from time to time, when different sections of the bill are considered, and particularly when they are considered by opponents of the bill or by opponents of copyright, to be heard on matters having to do with our own direct experience.
Mr. Ogilvie has made a contention on behalf of modifying the pending bill in such fashion that the requirement for the printing of copyright notice shall be made to extend not only to citizens of the United States doing their work within the United States, but to citizens of other countries doing their work in any part of the world. I do not believe, gentlemen, that you will give consideration, from the legal side of your responsibilities, to any such contention. I can not myself, speaking as a layman, understand how any American national legislature or State legislature can undertake to make laws which are to be enforced upon citizens not within the jurisdiction of a State or of the United States. Any attempt at such enforcement is, from a legal point of view, an absurdity and from the practical business point of view it is an impossibility. And it is an impossibility which, if attempted in the case of books, would bring serious injustice, serious loss, upon people who would be absolutely without any power to influence the course of business or the fulfillment of these impossible requirements-that is to say, the authors themselves.
The author makes a contract with a publisher for an important book the copyright of which is to be his property and, as he hopes, the property of his children. His American publisher makes a contract with a British publisher for a British edition, and possibly for subsidiary colonial editions of that book, or the British publisher himself makes subsidiary contracts for the printing of an edition in Melbourne and another in Cape Town, as well as arranging for the printing in London.
It is Mr. Ogilvie's contention that unless each one of those foreign editions carries this notice of American copyright the copyright shall run the risk of being forfeited altogether.
Now, I know from my own experience as a publisher, which extends over forty years and which has been connected with transAtlantic interests, the impossibility under any system of contracts of insuring a uniform recognition of the requirements of American law and of enforcing such requirements upon English publishers, and still less upon English printers. From time to time, even in the case of contracts with the most trustworthy of London houses, there would be an omission of that copyright entry. This risk would be greater in the case of books going to Australia. The farther away you got from the source of the original obligation the greater the risk, the greater the certainty, that it would be lost sight of. And an American author losing his copyright through somebody's breach has what redress? He has a right of action, possibly, for a breach of warranty against his American publisher. The American publisher, if he has such a contract, properly drawn, has a right of action in a British court against the British publisher, or the enforcement of the obligation or privilege or right of suit may be transferred from London to Melbourne.
What satisfaction is there to the American author whose copyright has been forfeited in the fact that his American publisher has a right of action in London or in Melbourne-a right that would be very expensive and that would in fact be absolutely impracticable to enforce within any reasonable degree of expense—an expense that few copyrights would justify?
I do not admit the authority of the United States to legislate for citizens abroad. We can not persuade citizens abroad to incur or to accept the responsibility for penalties for nonfulfillment of laws to which they are not subject, and the penalty of the loss would fall upon the owners of the American copyright—the author and his copartner, the American publisher.
We see no requirement, sir, for any such provision. The provision that appears in the present bill is somewhat more explicit than that in the existing law, but since the existing statute came into force, in 1789, there has been no one case in which a person infringing an American copyright has been upheld in his infringement on the ground that he had printed from a foreign copy which did not contain notice of copyright. In fact, for any books which were worth piracy, the knowledge (as has already been suggested here by Mr. Johnson) that they were under American copyright, that they were property here, is a knowledge possessed by every intelligent publisher, and if he operated with that knowledge, he would be a willful appropriator, and he should be made to take the consequences.
In one case alone where there was knowledge of copyright and where suit was brought in the country against an infringement has that plea been raised by the defendant. The case was that of Rider Haggard's “She," and the suit was Longmans v. The Minerva Publishing Company, brought some twenty-one years back. The defendant, a New Jersey publisher and printer, produced in court a copy of that book printed in Melbourne, without the United States copyright notice, and he claimed that under the statute as it then stood (the same statute that now stands as far as that provision is concerned) he could not be held liable for infringement. The natural question asked was, How did he get that copy? That copy was not to be imported into the United States. Haggard was an English author, but he had secured copyright here. He held exactly the same position here that an American author would have held. This was a colonial book, printed in Melbourne, and the question was asked, “How did you get that copy ?” “Well, I wrote to a friend in Melbourne, and he brought it in.”* That is to say, he had infringed one law, and on the ground that he had infringed one law he claimed the right to infringe another.
The importation of the dictionary printed in London, to which Mr. Ogilvie refers—and he has brought in here an argument in regard to a case in which he is now a defendant—the importation of that English print of that dictionary was in itself an illegality, and on the ground of one illegality the right is claimed to continue a further illegality which involves the loss of an American copyright property.
I do not think that you gentlemen will assent to any such contention. I judge that the laws that you will frame for us, the provisions for the better protection of literary property that you are going to secure for us under this amended bill, will extend over the territory controlled by the statutes of the United States and no farther; any attempt to make it extend farther would be most exceptional in the history of the world's copyright legislation. There
is no such attempt on the part of the copyright laws of any other country, and such a change in our own law would produce a manifold series of injustices and loss of property to people who would be absolutely without redress—namely, the American producers.
I will not take up time with the other details that Mr. Ogilvie has referred to, because they are of less importance and because my own experience is less direct concerning them.
Mr. CURRIER. Mr. Putnam, do you not understand that this provision, just as it stands in the bill now, would forfeit the copyright if the omission to put in the notice was intentional-if it was not omitted by inadvertence ?
Mr. GEORGE HAVEN PUTNAM. I understand, sir, that the provision as it stands now makes requirement of that copyright entry only for books printed within this country. It does not attempt to make the requirement for authorized (nor, naturally, for unauthorized) editions of those books printed in any other country. The words are,
printed in the United States." I think you have the words before you.
Mr. CURRIER. Yes; you may give it that construction. It says, to the bulk of the edition."
Mr. GEORGE HAVEN PUTNAM. That brings up another point, sir, which is quite a detailed point. It has happened—it happened with an important book of my own—that the printer in one case left out of one run of 500 copies of a book the entry of copyright.
Mr. CURRIER. What do you understand the “edition” means?
Mr. GEORGE HAVEN PUTNAM. Oh, sometimes it is 500.copies, and sometimes it is 5,000, sir. It should be “one printing.”
Mr. CURRIER. You understand it means every edition?
Mr. GEORGE HAVEN PUTNAM. “Any edition” means “every edition.” But as the law is worded, sir, it means every book printed in this country. The language you have referred to is designed to protect the owner of the copyright from the possible loss of his copyright if, in some American edition, in some copy of that book, there has been an inadvertent omission of the copyright entry. I did not trouble you with that point, as it was not the point on which Mr. Ogilvie made his contention. It is a different point, but it is an important point, also, to the owner of the copyright.
Mr. WEBB. Mr. Putnam, if a book was copyrighted here and reprinted in another country from plates made here, and shipped back to this country and sold, do you not think it ought to contain a notice of American copyright?
Mr. GEORGE HAVEN PUTNAM. Assuredly, sir, if the book is brought in here for sale, if it is brought in here for publication. The term “ publication” is quite a definite and distinct one. A book published here has an American entry showing that it is issued here; but I am rather in sympathy with the view of Mr. Sullivan, that the intention of the present law is that books protected by American copyright law shall be manufactured here. I am not myself, individually, in favor of a manufacturing clause. Mr. Sullivan knows that from discussion with me, but we have supported it because it expresses the present protective policy of the country; and I certainly understand that a consistent application of that clause means that books pro
every edition ? »
tected by American copyright shall be entirely manufactured in this country,
I will not delay you further.
The LIBRARIAN. Mr. Putnam, the chairman has intimated to me that it might be appropriate at this point to take up the importation clause which concerns the libraries, and upon which a number of gentlemen were heard at the last hearing. Before the librarians who appear here to protest against the clause as it stands say anything, is there anything that you would like to say on the affirmative side of the provision as it stands, in explanation of it or its practical effect?
Mr. GEORGE HAVEN PUTNAM. Would that be agreeable to the chairman?
The LIBRARIAN. I think it would be agreeable to the chairman and to the committee that you should be heard if you have anything to say now—just a word in explanation of the practical needs before the librarians point out their objections.
Mr. GEORGE HAVEN PUTNAM. If the chairman confirms the suggestion of the Librarian
The LIBRARIAN. You can say it in a moment.
Mr. GEORGE HAVEN PUTNAM. The Librarian has suggested, Mr. Chairman, that as the discussion of the importation clause is to come up with certain objections the grounds for the clause as worded might affirmatively be presented by some of us.
The LIBRARIAN. You were not here in June.
Mr. GEORGE HAVEN PUTNAM. I was not here in June, but I have read the objections that were presented to that clause in June.
The CHAIRMAN. Will you not call the attention of the committee to the section to which
you refer? The LIBRARIAN. It is section 30. I think you might advantageously take up that matter now, Mr. Putnam. It would be useful, particularly the exception giving certain privileges to libraries in the importation of foreign editions of books copyrighted in the United States.
Mr. GEORGE HAVEN PUTNAM. The general purport of the larger provision, Mr. Chairman and gentlemen, is in leaving with the producer the complete control of the copyrighted article, to prohibit the importation into this country of other copies of the article so copyrighted. To that general prohibition (which is a necessary condition or part of the copyright control or property right that is given to the producer under the law) certain exceptions have been made under which importations are to be permitted. Those exceptions are mainly in line with the exceptions (that is to say, with the permissions for importation) given under the present statute, but they have, in certain subdivisions, been reworded.
I should explain that in the existing statute the provision having to do with the privilege of importation does not form part of the law which was discussed and considered for a term of five years. I had personally to do with those discussions, extending from 1886 to March 3, 1891. Up to 1891 the American author, the only author who could secure copyright, had the absolute control of his books within the territory of the United States. No copies of any edition not issued here, in the United States, under his authority, could be imported into this country excepting by the authority