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of the author. That is in line with the copyright systems of all other countries. It is, according to our understanding, an essential
, condition of copyright.
There are, of course, various inconveniences in giving to an author the absolute control of his productions. He may be a fool; he may refuse to supply copies; he may put an exorbitant price upon them. He may throw his books into the streets, ruining other people to whom he may have sold copyrights, and so on. But our country has held, as other countries have held, that the manifest importance of inducing the production of literary, art, and musical property, the sense of justice in giving to the producer a proper return for that which he has produced, a return for his labor—that those considerations outweigh various possible and actual inconveniences in allowing him to control the thing so produced; and therefore the copyright laws of the world, and our own up to 1891, are in unison on that point.
In 1891, on the last day of the session, when the law had been put together in such shape as seemed to be fairly congruous and consistent, certain final interpolations were made-interpolations which, good, bad, or indifferent, had not been collated and could not be collated with the body of the law. Most of these last-minute interpolations were inconsistent, incongruous; and this one was particularly clumsy in its wording. It did not even, to my understanding, carry out the intention of those who framed it. It left free the importation of copyrighted books to libraries, incorporated or unincorporated; to institutions established for public or for private purposes; to associations of any kind; and to individuals. It did not even make any restriction as to whether the books so imported should be so-called authorized editions—that is to say, European editions which had been printed in Europe under arrangement with the author-or piracy editions.
It is a clause which you gentlemen will not accept as a precedent. It was hasty, bad legislation. We have been trying, in the sixteen years since, to get rid of it, to amend it, and to modify it. It has worked, it is working, increasing injustice to the producers of copyrights--the authors and to their assigns, the publishers. It has been defended on various grounds; that there is a convenience to certain portions of the public, to individuals who have accounts in London, in importing books, whether or not these books have an American copyright; to libraries that have accounts abroad in importing books, whatever may be the American property control in ihose books. There are undoubtedly such conveniences. But these represent simply the convenience in having the privilege of appropriating the property of other people, irrespective of the interests and of the just requirements of these people. If a library, for instance, could get its building rent free, it could give out its books a good deal cheaper than it does. But you gentlemen will not give to library associations the eminent-domain privilege of confiscating buildings.
The status of the copyright is this: That when the author has produced a work and the law has given to him the copyright control of it, the author sells that copyright for the highest price that he can get--for one consideration or another—sometimes for a form of royalty, sometimes for an annual payment, sometimes for a fixed sum.
The theory is that the assignee purchasing that property has the same rights that you gentlemen have given under the law to the original producer. If those property rights on the part of the assignee are in any way impaired or undermined, sooner or later the price that he pays for the article will naturally be that much smaller. If he can not get a good title to his property, he will pay very much less for that property. The interests, therefore, of the authors and of the publishers are entirely at one in having the control clear and absolute.
Now, as a matter of fact, the most intelligent people in this country and the largest buyers of books are those who travel abroad and who carry accounts abroad; the largest buyers and distributers, viz, the libraries—four or five thousand of them—the people upon whom authors and publishers, to speak frankly, largely depend for their living have had this privilege and have exercised it, with increasing facilities for so doing more largely from year to year; so that large proportions of important American copyrighted books are sold here, not in the American copyrighted editions, but in editions produced abroad. And as far as the present law is concerned, these libraries and individuals can import and they do import editions produced abroad which did not pay anything to the author at all piratical editions, so called.
The authors, through their business agents, the publishers, and the publishers for the account of the authors and for themselves, have protested against such an opening of the door. They say it is a great injustice to give copyright with the left hand and to take away a large proportion of it with the right hand. And we have argued with our friends, the librarians, about it; but as this thing has been going on now for sixteen years there has grown up a usage which has been a convenience, and we have tried to persuade the libraries to unite with us in a modification of this provision so as at least to lessen the injustice and the loss to American producers. We have been prepared, in consideration of the fact that this usage had gone on for a certain number of years, to assent to some suggestions from the librarians which would not stop a practice in which they had found a substantial convenience.
The librarians of the country were represented at the three conferences that were held during the year that this bill has been discussed, and of course everything they had to say on behalf of the great reading public was listened to with great attention. Those of us who were present arrived at a consensus of opinion-mainly, of course, between the authors and the publishers on the one hand and the librarians on the other-under which the provision in the existing law was shaped, and I was very sorry to learn (I was in Italy in June, at the time of the hearings here) that that matter had not been adjusted so that it could stay adjusted. You gentlemen did not want to be troubled with discussions." You expected to receive from us a bill expressing a consensus of opinion. We understood that such consensus of opinion had been reached. But I find that a large amount of time had to be given by you gentlemen in June to hearing objections to the clause as it stood. That clause as it stands takes uway the privilege of individuals and leaves the privilege to libraries, not even with a limitation to incorporated libraries, but restricts the importation to one copy in each invoice instead of to two copies. A
library can get in from fifty-two to one hundred and four invoices a year, so that an institution requiring books from abroad can still, under this amended provision, secure full supplies of European editions of American books without the authority of the owner of the copyright.
That is not consistent copyright law. It is in itself not justice; but it is an adjustment which we accepted, and we hope very much, gentlemen, that you will not be persuaded to modify that adjustment. It is the single exception in the copyright laws of the world to the theory that nothing shall be done with a copyrighted book excepting with the permission of the owner. I may say, as a business detail, that there is never any difficulty in securing the permission of the author, through his representative, the publisher, for the importation of copies of foreign books in cases in which, on one ground or another, such importation may be found convenient or desirable, if the foreign edition is in some way superior or has any advantages that the American edition has not.
Up to 1891 that was the way the business was done. We imported from time to time the foreign editions of Irving's works or of Taylor's works for people who wanted them, and we simply saw to it that the owners of the copyrights secured their share of the price of those books, the share that they were entitled to. The people wanting English editions of Longfellow could get them. Houghton iinported these, and the Longfellow heirs secured what they were entitled to secure.
The authors have a very direct business interest in the maintenance of the section as it stands, in checking the operations of this open door, which are undermining American copyright and which go to make American copyright almost a futility. The manufacturing interests also have a direct concern in the matter.
I contend that as there are certain inconveniences connected with that manufacturing clause which we publishers and authors have accepted because it is part of the present American policy, that clause should be made consistent. I contend that if a copyrighted book is to be produced from type set within the United States this restriction must be made consistent, and that each one of the 5,000 libraries and of the 80,000,000 of other buyers of books (of course in a reference to 80,000,000 buyers I am talking now ad absurdum) is under the same obligation to purchase that copyrighted book in the edition which has been produced in compliance with the requirements of the copyright law. Under the present statute any library and individual is free to import any copyrighted book in an edition which has not been manufactured in this country, as such library or such individual may see fit.
I say that is not consistency, gentlemen. If we are to have a manufacturing clause, let us have it consistently applied. It has its inconveniences; we accept them, but we do not want to have the inconveniences and then at the same time not be permitted to sell the edition for which we have bought the copyright and which has been manufactured by the associations represented here by Mr. Sullivan.
Mr. CURRIER. This also changes the law in this respect, does it not, Mr. Putnam, that hereafter nothing but an authorized edition can be brought in ?
Mr. GEORGE HAVEN PUTNAM. Well, sir; under the law as it stands now no other than an authorized edition can be brought in excepting under this very provision that I have referred to.
Mr. CURRIER. I beg your pardon. It declares here, I think very clearly-I think it was said at the last hearing—that unauthorized editions printed abroad might be brought in, and that the customhouse authorities admitted them—that that was brought out.
Mr. GEORGE HAVEN PUTNAM. Well, sir, under that very exception in the law which I read the hasty interpolation of March 3, 1891, that is one of the things we complain of.
Mr. CURRIER. I had the impression at that time that it could not be done, but it very clearly appeared that it could.
Mr. GEORGE HAVEN PUTNAM. There is no specification as to the authority under which the edition is issued.
Mr. CURRIER. But you distinctly provide here, “published abroad with the authorization of the author or the owner of the copyright.”
Mr. GEORGE HAVEN PUTNAM. Yes; the authorization of the author or copyright proprietor. That seems to us the true way.
Mr. HINSHAW. The existing statute has resulted in considerable diminution of the profits of the author by reason of these importations of foreign editions, has it not?
Mr. GEORGE HAVEN PUTNAM. And an increasing risk, certainly, of such diminutions. If I may give you one example: An American sells to Tauchnitz in Germany, say for 10 or 20 pounds (the prices paid are small), the right to publish a cheap edition of his book. He is willing to take 10 or 20 pounds for that right, assuming, of course, that the book so printed can be sold only on the other side of the Atlantic. He is doing that unwittingly, not understanding that he does not really possess copyright in this country, and he does not, under the law as it stands. Those Tauchnitz editions can be and have been imported by the libraries here and by individuals, and there is nothing to prevent their importation. Every book so sold stands in the way of the royalty that the author secures from his dollar and a quarter book or dollar and a half book here. He would never undertake to sell that right knowingly if he did not suppose that he had had the control of the American market.
The English author, on the other hand, is protected consistently. He sells to Tauchnitz the right for a German book for 10 pounds; but no Tauchnitz book can get into England. The English government has made a consistent application of what copyright means, giving to the author the control. If anybody wants to bring Tauchnitz books into England he can do soo (I have done it myself) by getting the permission of the author, and that is the simple, logical application of the copyright law. But the American author in this respect is placed in an absurd position as compared with authors anywhere in the world by this interpolation here.
Mr. Hinshaw. And tħese cheap editions that come in here undersell the authorized editions?
Mr. GEORGE HAVEN PUTNAM. Sometimes they are cheap editions and sometimes they are not. Sometimes there are foreign editions which have one advantage or another and which ought to be imported when required, and which there is no difficulty in importing under this arrangement.
The LIBRARIAN. Does the Authors' Copyright League desire to say anything upon this issue in regard to the authors ?
Mr. "JOHNSON. I think, only later, in the course of our general statement, after the librarians have been heard, Mr. Chairman.
The LIBRARIAN, Mr. Chairman, I suggest that this would be a good time at which to hear some of the librarians.
The CHAIRMAN. We will hear them. The LIBRARIAN. They are represented here, in the first place, by Mr. Bostwick, who was one of the representatives of the American Library Association at the conferences, and as such representative agreed to the provision as it stands. The libraries are represented also by certain librarians, including Mr. Cutter, who spoke in June last in opposition to the provision as it stands. Mr. Bostwick, have you anything to say in behalf of the American Library Association as a participant in the conferences ?
STATEMENT OF ARTHUR E. BOSTWICK, ESQ., OF THE NEW YORK
PUBLIC LIBRARY, NEW YORK CITY.
Mr. CHAIRMAN. Mr. Bostwick, you appear in favor of the bill as introduced in the Senate?
Mr. BOSTWICK. In favor of the bill as introduced in the Senate.
The CHAIRMAN. And do you represent the librarians in taking that position?
Mr. BOSTWICK. The American Library Association.
The CHAIRMAN. Are there other gentlemen representing that side here who desire to be heard in addition to yourself?
Mr. BOSTWICK. I am the only one of the official representatives of the American Library Association who is present at this hearing.
The CHAIRMAN. I understand there are a number of gentlemen representing libraries opposed to this provision.
Mr. BOSTWICK. There are. They have several representatives here.
The CHAIRMAN. Are we to understand that each one desires to be heard by the joint committee?
Mr. BOSTWICK. I can not speak for them; I can only speak for myself and for the other representatives. The CHAIRMAN. You can take that matter up first.
Senator SMOOT. Are the ones opposed to this bill members of your association ?
Mr. BOSTWICK. I think they are almost without exception. As appears in the proceedings of this joint committee at the hearing held last June, the then president of the American Library Association made a statement in which he said clearly that the librarians were divided on this question. I desire to say something as to the official relations of the American Library Association to the bill.
The CHAIRMAN. How much time do you wish ?
Mr. BOSTWICK. Perhaps ten minutes. I have here a statement which has been signed by the other delegate to the conference and myself, which will put the matter perhaps in a little clearer light than it is now. I do not desire to read it, but if you will let me, I will put it into the record. It is signed by Mr. Hill and myself. I am very sorry that Mr. Hill could not be here at this time.