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It is tenure which does not exist in a doubtful title, which does not spring from any adventitious circumstances. It is not found; it is not purchased; it is not prescriptive. It is original. So it is the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation."
Although the copyright system had its origin in the privileges which were granted by the Crown in England prior to 1695 and by the kings of France prior to 1793, these conditions no longer prevail.
Under our law, and the same philosophy prevails in the western world, copyright can no longer be considered a special privilege. It is available to every individual who can qualify by reason of his own talents and the exercise of his own initiative and ingenuity. The acquisition of this property is open to all on an equal basis under the law and therefore constitutes a legal right rather than a privilege.
Nor does the copyright system create a monopoly or stifle or impede the enjoyment, use or utilization of ideas or information. Copyright protection extends only to copying or other forms of reproduction. It does not establish a monopoly in the ideas which are expressed, but preserves the property right only in the manner and content of the expression.
Even though a work is protected by copyright, the facts recited or processes described are freely available to the public at large and may be freely utilized by it.
It should be borne in mind that the scope of both common law and statutory copyright is very limited. These rights are not like those which stem from a patent where the monopoly granted to the patentee is quite broad. Baker V. Selden, 101 U.S. 99, 101-104 (1879); Bobbs-Merill Co. v. Straus, 147 Fed. 15, 23, 24 (2d Cir. 1906), aff'd, 210 U.S. 339 (1908); Arnstein v. Edward B. Marks Music Corp., 82 F. 2d 275 (2d Cir. 1936); Berlach-Barklow v. Morris & Bendian, 23 F. 2d 159, 161 (2d Cir. 1927).
The owner of common law or statutory copyright may not usurp or appropriate any field of writing or literary subject. Having composed a song about moonlight, having written a book concerning life in New York, having painted a picture or taken a photograph, he may not claim a monopoly in any of those subjects. All he may do is prevent another person from copying or reproducing his work. Bobbs-Merill Co. v. Straus, 210 U.S. 339, 347 (1908); Jeweler's Circular Pub., Co. v. Keystone Pub. Co., 281 F. 83, 94, 95 (2d Cir. 1922), cert. denied 250 U.S. 591; Chappell & Co. v. Costa, 45 F. Supp. 554, 556 (S.D. N.Y. 1942) ; M.G.M. etc. V. Bijoy Theatre Co., 50 F. 2d 908, 910 (1st Cir. 1931). He may prevent piracy of the exact words of his composition or the plagiarism of the sequence of the ideas expressed. Edwards & Deutsch Lithographing Co. v. Boorman, 15 F. 2d. 35, 36 (7th Cir. 1926), cert. denied 273 U.S. 738. A photographer who produces a photograph may prevent another person from copying that photograph. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249–252 (1903); Burrows-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 60, 61; Gro88 v. Selig. man, 212 Fed. 930, 931 (2d Cir. 1914); Altman v. New Haven Union Co., 254 Fed. 113, 117, 118 (D.C. Conn. 1918). He has no standing, however, to prevent that other person from placing a camera in the same position facing the same object, and producing an original picture almost identical with the earlier one.
Gross V. Seligman, 212 Fed. 930, 931 (2d. Cir. 1914). Although a publisher of a directory may prevent another publisher from copying that directory, Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903); Jewelers Circular Publishing Co. v. Keystone Pub. Co., 281 Fed. 83, 85, 88 and cases cited p. 85 (2d Cir. 1922), cert. denied 259 U.S. 581, he has no legal right to prevent the second publisher from producing an original directory compiled by visiting the same householders or businessmen whose names appear in the earlier work. Jewelers Circular Pub. Co. v. Keystone Pub. Co., 281 F. 83, 91 (2d Cir. 1922), cert. denied 259 U.S. 581; Fred Fisher, Inc. v. Dillingham, 298 Fed. 145, 150, 151 (S.D. N.Y. 1924).
The law of copyright prevents only larceny, not legitimate use, independent creation or imitation.
The property represented in this system of law is of a kind which can have a value only in an industrialized capitalistic society, one which places its empha. sis upon individual initiative and which has reached a stage beyond the mere satisfaction of primitive needs. It can flourish only in a climate wherein the ownership of private property is recognized and the profit motive is esteemed.
THE ORIGINS AND DEVELOPMENT OF COPYRIGHT IN THE UNITED STATES
A brief review of the origin of copyright in the United States and the inferences to be drawn therefrom may be of interest to this Committee.
I need hardly mention that Article 1, Sec. 8 of the Constitution specifically delegates to Congress the power to enact copyright legislation in the following terms:
"The Congress shall have power: To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries."
There is however an interesting history of copyright in the United States which antedates the adoption of the Constitution. It can be read in revised Bulletin No. 3 issued by the Copyright Office in 1963, entitled Copyright Enactments.
As early as 1672 the General Court for Elections of The Massachusetts Bay Colony in New England issued the following order:
"In ansr to the petition of John Vsher, the Court judgeth it meete to order, & be it by this Court ordered & enacted, that no printer shall print any more coppies then are agreed & pajd for by the ouner of the sajd coppie or coppies, nor shall he nor any other reprint or make sale of any of the same, without the sajd owners consent, vpon the forfeiture and poenalty of treble the whole charges of printing, & paper, &c, of the whole quantity payd for by the ouner of the coppies, to the sajd ouner or his assignes.”
That order was promulgated almost a half century before the enactment of the British Copyright Act of 1710, the statute usually said to be the first copyright legislation known to the world. In the half century which followed the adoption of the Statute of 1710, no copyright legislation appears to have been necessary in the colonies since the rights of authors were undoubtedly governed by the statute which had been enacted in Great Britain.
However, after the original States of the Union had achieved independence, legislation became necessary to fill the void which had resulted. Accordingly, we find that in January 1783, the State of Connecticut became the first to adopt a copyright statute. This act was followed by the State of Massachusetts on March 17, 1783 and by Maryland in April of the same year.
On May 2, 1783 a resolution adopted by the Continental Congress recommended to the several States that copyright legislation be enacted. The resolution of which the authors were Mr. Williamson, Mr. Izard and Mr. Madison, recited :
“Resolved, That it be recommended to the several States, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administrators and assigns, the copy right of such books for a certain time not les than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators and assigns, the copy right of such books for another term of not less than fourteen years, such copy or exclusive right of printing, publishing and vending the same, to be secured to the original authors, or publishers, their executors, administrators and assigns, by such laws and under such restrictions as to the several States may seem proper."
Thereafter copyright laws were adopted in all of ten of the remaining thirteen original states, Delaware being the only exception.
The significance of this action lies not merely in terms of its chronology but also in the factor that the language employed explains the wording of Article 1, Section 8 of the Constitution. The preambles to the various State statutes serve to clarify the meaning which must be attributed to the phrase “to promote the progress of science and useful arts".
The preamble to the Connecticut statute recites :
"Whereas it is perfectly agreeable to the principles of natural equity and Justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind."
The statute adopted in Massachusetts sets forth the legislative intent in the following language:
"Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labour of his mind :
“Therefore, to encourage learned and ingenious persons to write useful books for the benefit of mankind :"
The legislature of North Carolina said :
“Whereas nothing is more strictly a man's own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce :"
Rhode Island was even more explicit in its statement of purpose when it wrote:
"Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons, in the various arts and sciences; as the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is the natural right of all men, there being no property more peculiarly a man's own than that which is produced by the labour of his mind;"
There can be little doubt that all of these statements reflect the teachings of John Locke who wrote in his essay on Civil Government:
"Though the earth and all inferior creatures be common to all men, every man has a property in his own person; this nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labor with and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by his labor something annexed to it that excludes the common right of other men. For, this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to; at least where there is enough, and as good, left in common for others.”
Those who urge that copyright in literary, artistic and scientific works should not be treated as the property of their creators or who contend that the Congress, acting in the “public interest,” should subordinate the interests of creators, and should authorize the taking of that property without compensation to their owners, would have it disregard this contemporary construction of the intent of the Constitution. They would also have Congress ignore the reasons advanced by James Madison for entrusting to the Congress the power to enact copyright legislation. In the 43d Federalist paper he wrote: "The fourth class comprises the following miscellaneous powers.
“1. A power to promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right, to their respective writings and discoveries.'
"The utility of this power will scarcely be questioned. The copy right of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”
This coincidence of the economic interests of the author and the public int rest was recognized by the Supreme Court in Mazer v. Stein, 347 U.S. 201 (1954) where the Court said at 219:
“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and the useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered."
In proceeding with the revision of the copyright law one must of necessity take into account not only the grant of power under the Constitution but also the objectives for which that power was granted.
The history of copyright legislation in the United States reveals that with each revision of the Copyright Law the rights secured to authors have been enlarged, the categories of works for which protection has been afforded have been extended, and the duration of copyright has been prolonged. The present revision proposed by H.R. 4347, I submit, follows the established tradition whereby at intervals of approximately fifty years apart the Copyright System is brought into line with then current needs of our creators and of our society.
Earlier revisions and amendments of the copyright act have played a vital role in enabling the copyright system to keep pace with technological develop ments and the needs of society. Originally limited to books, maps and charts, the copyright law was broadened to include such works as plays and music. Protection was extended to reproduction of works by performance as well as by copying. In 1952, for example, protection was accorded to literary works against unauthorized recording and performance, rights which had theretofore been limited mainly to dramatic and musical works. In 1909 musical works received limited rights in respect of phonograph recordings, and in 1912 some provision was made for motion pictures.
The original act provided an aggregate term of copyright of only 28 years, which was later increased to 42 years and finally to a 56 year term, all of these extensions resulting from a recognition of the increased life expectancy of our population.
These and other improvements in the copyright system have benefited our society. Authors, composers and other creators have been enabled to enjoy more fully the fruits of their labors. That the widespread creation, production, communication and dissemination of literary property has been stimulated, is indicated by the fact that it now contributes more than $7,000,000,000 annually to our gross national product.
The time has now come to give full recognition to the developments of the past half century, and the objective of the revision of the Copyright System should be the assurance of continued progress in the creation and dissemination of literary, artistic and scientific works.
THE EXISTING COPYRIGHT SYSTEM AND THE NEED FOR ITS MODERNIZATION AND
In the United States we have a unique and sometimes perplexing dual system of copyright. An author by the mere fact of creation of his work is entitled to assert full ownership over it as a basic common law right of property until that work is published, namely until it is reproduced in visual copies which are sold, offered for sale or generally distributed to the public.
Upon publication the work falls into the public domain and the author loses dominion over its use unless statutory procedures are followed. If the statutory procedures are observed, copyright in the work and the remedies for its enforcement are governed solely by the provisions of the Copyright Act. In some limited categories of works such as music and dramatic works this transition from the common law to statutory status may take place prior to publication by the registration of a claim to copyright in the copyright office.
The broadest concept of copyright is that which is recognized at common law in unpublished works. Its doctrine is that anyone, whether a citizen or resident of the United States or a non-resident alien, merely by virtue of the creation of his work and without a formality of any kind, may exercise dominion over its reproduction in any form. (Palmer v. DeWitt, 47 N.Y. 532; Ferris v. Frohman, 223 U.S. 424 ; Thompkins v. Halleck, 133 Mass. 32; Uproar Co. v. National Broadcasting Co., 81 F. 2d 373.) He may choose whether it shall be published or not, who shall publish it and what reproduction or other use may be made of it. This domination over the work is not limited to publication and copying alone, but entitles the author to the exclusive right of performance or rendition of the work. The author of a play may perform or authorize its performance upon the living stage; he may broadcast it or authorize its broadcast by radio or television subject to such restrictions as he chooses. This complete ownership and dominion over reproduction is perpetual and continues until the work is published or, if it falls within the limited category of works which may be copyrighted under Sec. 12 of the Copyright Act prior to publication, until the author elects to secure a statutory copyright by registration of his claim.
The transition from common law to statutory copyright brings into play a dif. ferent set of concepts, having their origins in cases such as Donaldson v. Beckett 4 BURR 2408 and Wheaton v. Peters 33 U.S. 591. Although the nature of the works in which statutory copyright may be secured are substantially the same as those which the common law protects, and the tests of originality and infringements are substantially alike, the basic rights of the copyright proprietor and his remedies against infringement are only those provided by statute.
An essential requirement for statutory protection is that copyright must be secured, i.e., claimed, as otherwise the work falls into the public domain upon publication. The procedure for securing copyright in a published work is apparently simple, requiring only the imprinting of a copyright notice on each copy. Washingtonian Company v. Pearson 306 U.S. 30. Registration of the copyright and deposit of the work is optional except as a procedural pre requisite to an action for infringement or in response to a specific demand by the Register of Copyrights.
In actual practice, however, the problem is not so simple. Except in the most conventional cases, no one is quite certain of the adequacy of the notice to comply with the statute. National Comics Publications v. Fawcett Publications 191 F. 2d 594 illustrates the type of jigsaw puzzle with which the Courts are presented not to determine ownership or originality of the work, or the question of its infringement, but to decide whether there has been compliance with the formalities required by the statute, Heim v. Universal Pictures, 154 F.2d 480 is another instance of the uncertainty which exists in the interpretation of the notice provisions. No one can say with assurance whether first publication abroad without a copyright notice dedicates the work to the public in the United States. Excessive caution because of these and other uncertainties concerning the adequacy of copyright notices, has led to practices such as imprinting long lists of copyright notices in compilations, and in some cases, to the imprinting of notices in footnotes where references are made to copyrighted works or where short quotations are used. The failure to imprint a proper copyright notice, or to imprint it in the proper place, will result in the destruction of copyright in a work. Accordingly, it is almost impossible to prognosticate which deviations from the rigid requirements will be overlooked and those which will be fatal.
Moreover, despite the importance of publication in copyright law as the line of demarcation between the application of common law and statutory rights, there is no precise and inclusive definition of that term. Although the Copyright Act is primarily concerned with "published" works, and Section 2 reserves the right of an author or proprietor of an “unpublished work” to prevent reproduction at common law or in equity, the Act itself provides no definition by which the difference between these two categories of works may be judged.
The generally accepted view is that a work is published only when reproduced in copies which are offered for sale, sold, or distributed to the public. This view of publication is consistent not only with the weight of authority but with the statute itself.
For the most part, this concept has been adopted by the Courts. It is well established that a public performance of a play or a musical composition does not constitute publication of the work. (Ferris v. Frohman, 223 U.S. 424; McCarthy & Fischer v. White, 259 Fed. 364; Palmer v. DeWitt, 47 N.Y. 532; Thompkins v. Halleck, 133 Mass. 32). A limited or restricted distribution of copies does not constitute publication so as to terminate common law rights (See White v. Kimmell, 94 F. Supp. 502).
Nevertheless, we find doubts created from time to time concerning the concept of publication. A Court has held (Shapiro, Bernstein & Co. v. Miracle Records, 91 F. Supp. 473) that the issuance of a phonograph record (which under White Smith Music Publishing Co. v. Apollo Publishing Co., 209 U.S. 1, is not considered a copy of a work) constitutes a “publication". It has been stated that "a general publication consists in such disclosure, communication, circulation, exhibition or distribution of the subject of copyright tendered or given to one or more general members of the public as implies an abandonment of copy. right or its dedication to the public" (Werkmeister v. American Lithograph Co., 134 Fed. 321, 326, quoted in White v. Kimmell, supra).
Another radical change which takes place when a work ceases to be protected at common law and comes within the statute, consists of the reduction of the term of protection. Instead of the perpetual copyright afforded by the