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or modification by assignees which may be prejudicial to his honor or his reputation, and certain rights with respect to the communication of his work by radio.
The register of copyrights of the United States has long been on record as favoring the entry of the United States into the International Copyright Union, and in this position the Librarian of Congress concurs. Adherence on the part of the United States prior to the adjournment of the present session of Congress is earnestly recommended. Respectfully submitted.
There is also included, as a part of this report, Executive Report No. 1, Seventy-fifth Congress, second session, which includes the report of the subcommittee which gave study to the Copyright Convention during the Seventy-fifth Congress, together with a copy of the convention itself, as follows:
The Senate Committee on Foreign Relations, to whom was referred Executive E, Seventy-third Congress, second session, the International Convention of the Copyright Union as revised and signed at Rome on June 2, 1928, respectfully recommend that the Senate do advise and consent to the same.
In order that there may be generous time for appropriate adjustments by persons interested in copyright, it is further recommended that, in accordance with article 25, paragraph (3) of the convention, the day for its entry into force as to the United States be fixed at 1 year from the date of its approval by the Senate.
Before making the foregoing recommendations the committee referred the copyright treaty to a subcommittee for intensive study and consideration. The report of the subcommittee is attached hereto as exhibit 1, and is made a part of this report. The subcommittee submitted its conclusions in July 1937.
The convention for the protection of literary and artistic works, commonly referred to as the general Copyright Convention, was originally signed at Bern on September 9, 1886. It has undergone amendment and revision from time to time, and, in its present form, was signed at Rome on June 2, 1928. Most of the countries of the world, including, particularly, the English-speaking countries, are parties to the convention. A list of these countries, believed to be complete to November 1, 1937, is attached hereto as exhibit 2.
No better statement of the object of this convention, and its companion treaty relating to industrial property, can be found than in the language of the Constitution of the United States (art. I, sec. 8), which empowers the Congress "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."
The convention for the protection of industrial property, comprising patents and trade-marks, was originally signed at Paris on March 20, 1883, and has, like the Copyright Conventio been revised from time to time. The United States has been a party since 1887. The latest revision in force is that of The Hague, 1925, though a later revision (London, 1934), already ratified by the United States, awaits additional ratifications before it supersedes the text of 1925.
It is contemplated in the Constitution that authors should be safeguarded as fully as inventors. To obtain protection for either outside the United States it is necessary to resort to agreement with other countries. The best existing instrument for promoting such protection for authors is the convention for the protection of literary and artistic works, approval of which is now recommended.
The present century has witnessed an enormous expansion of the economic and cultural value of literary and artistic works. Great new industries, such as those of radio broadcasting and the production of motion pictures, are based upon the use of copyrightable materials. American motion pictures are exhibited everywhere. The musical composers of the United States have acquired great popularity throughout the world; they find their songs and their melodies in universal demand. American short-wave broadcasts encircle the earth and are in danger of infringements throughout vast areas. American literary authors have an increasing appeal for the reading public and their works circulate, either in the original or in translation, in all countries. It is desirable from the point of view of the United States that these expressions of its culture should contribute to the culture of other countries, and that the economic benefit of the widest possible distribution should be enjoyed by its authors and musicians, its playwrights, broadcasters, and motion-picture producers, under the assurance of copyright which the convention affords. It is likewise desirable that opportunities to circulate their works here under reciprocally protective treatment should be accorded by the United States to the people of other countries.
There has been a great deal of pirating both here and abroad. The system of protective agreements now in effect has become inadequate. It is true that arrangements are in force with a number of other countries, individually, and that the United States is a party to a multilateral convention with certain countries of the Pan American Union. They are reciprocal and are safeguards against discriminations, but they are, with few exceptions, barren of affirmative guaranties. For the most part they are based merely upon assurances that American authors enjoy the same rights as native authors. But American authors and their attorneys find the task of knowing what those rights are to be very difficult. How to avail themselves of their rights is perhaps even more difficult. Accordingly, copyright is frequently lost or allowed to go by default. Under the convention for the protection of literary and artistic works recognition of copyright is guaranteed and remedial action is as a result made much more dependable. Accordingly, the adherence of the United States to a general convention which applies uniformly in a considerable majority of the countries of the world is the most practicable step toward greatly reducing or eliminating existing evils.
The correctness of the foregoing statements has almost at the present moment been demonstrated by an event that is singularly direct and conclusive. The Department of State has just informed the committee of the translation and publication, without the author's consent, in a country party to the general Copyright Convention, of one of the most popular and successful of all American literary creations. The sale of many more than a million copies of the edition in English testifies to the importance of the financial values involved. Efforts to obtain protection in the courts of the country in question have availed nothing. The result is to put this American author in great danger of heavy losses, a danger which is believed to extend beyond the border of the country where the piracy occurred.
There can be no doubt from pronouncements of the courts there that, had the United States been a party to the treaty now under consideration, its national would have received full protection.
It is understood to be the policy of the country in question to offer its protection to nonnationals through the general Copyright Convention. The way to such protection lies through participation in this treaty. Information before the committee further indicates that reputable national publishers in that country would be gratified when the United States adheres to the treaty, thus bringing to an end the discreditable series of literary piracies which extends itself back through the years.
The essential features of the convention for the protection of literary and artistic works include not only the right to national treatment in the matter of. copyright, but also the right to copyright without formality.
The convention makes it clear, just as do other treaties and agreements, that authors who are nationals of any one of the countries parties to it are entitled in every other country to the same treatment in respect to copyright which that country accords to its own nationals. This right is a normal and useful one in copyright treaties as it is in various other types of treaties dealing with economic relations. It is important and necessary as far as it goes, but it does not go far enough, not only for the reasons already stated, but because in some countries the treatment accorded to nationals is insufficient even if fully understood and availed of, to provide the protection which is needed by American authors and producers of copyrightable works.
The real contribution of the convention is, accordingly, the affirmative guaranty that authors shall enjoy, in all of the countries which are obligated to their country under the terms of the convention, copyright in their works simply by reason of their having created those works. This is referred to in the convention as copyright without formality and is generally spoken of as automatic copyright. It is of particular importance to the authors of the United States that they have this right to copyright without formality in other countries because, once they possess such right automatically, the fact that they are unfamiliar with the laws and regulations of other countries cannot deprive them of their copyright in such countries. Reciprocally, of course, it is desirable that authors residing outside the United States and unfamiliar with its practices should not be in danger of losing their copyright here because they do not fulfill the formalities which are, without hardship, required in the United States of its own people for the purpose of protecting their copyright at home.
The Copyright Convention specifically provides for authors' security in the matter of radio broadcasting and it otherwise has kept abreast of the times as new discoveries, inventions, and methods have magnified the importance to authors of the maintenance of copyright. It protects them, moreover, in translations of their works. American authors have suffered greatly, particularly in the matter of financial return, from unauthorized translations of their books and other writings in non-English-speaking countries. Under the convention they will receive much more adequate protection than ever before and, reciprocally, writers in languages other than English will receive protection in the United States. It should be noted, however, that the law of the United States already accords full protection in the matter of translation rights and will not have to be changed in any way in order to fulfill the requirements of the convention.
The Copyright Convention undertakes to assure the author of protection in a moral right in his works, that is to say, to preserve his works, when in the hands of others, from mutilation or distortion that would injure his own honor or reputation. This is a right which exists to some extent at common law in the United States and it is one that is valued very highly by writers and musicians. The convention leaves to individual countries the greatest flexibility in interpreting and legislating for the maintenance of this right.
Under the general convention, there has been set up an administrative bureau for the purpose of collecting and publishing information, and otherwise being helpful to the countries parties, in all matters pertaining to copyright. It is maintained at insignificant expense, and resembles other bureaus to which the United States, by treaty or otherwise, contributes. A partial list of them is contained in exhibit 3 to this report.
The convention provides for revision from time to time, and a conference was called to meet at Brussels in 1936 for the consideration of suggestions for improvement. Though indefinitely postponed, such a conference remains in contemplation. The entry of the United States into the convention will accordingly afford an opportunity for the presentation of its views at the proposed conference. It is believed that this country can make a valuable contribution in this way and, while further benefiting its own people, can help to develop a better copyright system for all peoples. The United States has, indeed, been represented at former conferences, including that of Rome, but, not being party to the convention, has had no vote. Under its terms the convention is, of course, open to the adherence of all countries.
The Copyright Convention as revised and signed at Rome was transmitted to the Senate on February 19, 1934, with the request of the President that the advice and consent of the Senate to adherence thereto on behalf of the United States should be accorded.
The text of the convention for the protection of literary and artistic works is attached hereto as exhibit 4. The program of adherence at this time, together with the enactment of supplementing legislation, is a step appropriate not only for the fulfillment of present needs but in preparation for the future, for there is every reason to believe that these needs will become progressively more urgent.
The general manager of one of the largest and most important organizations interested in copyright recently remarked that adherence to the Copyright Convention was of vital importance to the creative genius of America.
REPORT OF THE SUBCOMMITTEE ON THE COPYRIGHT CONVENTION
Your subcommittee, appointed to consider Executive E, Seventy-third Congress, second session, the convention for the protection of literary and artistic works, usually referred to as the Copyright Convention, respectfully reports that, after due consideration, it is of opinion that this treaty should be favorably reported. That the treaty be approved during the present session of Congress is manifestly desirable. For reasons that will be hereinafter explained, your subcommittee recommends that this action be taken subject to a provision to be set forth in the resolution by which the Senate gives its advice and consent to the adherence of the United States, that the treaty shall not become binding with respect to the United States until a year shall have elapsed following the date of the Senate's approval thereof. The draft of a resolution containing such a provision is transmitted herewith and commended to the favorable consideration of the committee.
It is believed to be important to make final disposition of this matter without further delay. The rapid expansion of American literary and artistic creation
has responded to demand in virtually all countries and consequently the need for protecting the interests of writers, musical composers, artists, the book and periodical publishers, the producers of motion pictures, the broadcasters of radio programs, and many others, has reached an intensity that ought not longer to remain unheeded by the National Government. All evidence is in agreement that the treaty under reference furnishes the most reliable available protection for American copyright beyond the borders of the United States. The adoption of this treaty will, moreover, avoid threatened retaliation and will have a good effect upon international relations generally.
It has long been hoped that the approval of the copyright treaty would be accompanied by legislation appropriately amending the statute law of the country and interpreting those portions of the treaty which contemplate individual legislative action by the countries parties to it. The Senate has, indeed, passed such legislation. But continued inaction of the Committee on Patents of the House of Representatives has dimmed, if not destroyed, hope of cooperation by that body until the treaty shall have been disposed of.
This failure to act is not understood to be due to opposition by any considerable proportion of the committee, or to any appreciable opposition in the House itself. Under the circumstances it would seem to have rendered unjustificable any further delay by the Senate in taking the remedial action which it is constitutionally empowered to take without the cooperation of the other branch of the Congress.
Your subcommittee is convinced that legislation to accompany the treaty, while convenient, is in no sense indispensable.
As Chief Justice Marshall long ago said, “Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” The Supreme Court, continuing to speak through the great Chief Justice, says, also, that "when the terms of the stipulation import a contract—when either of the parties [to the treaty) engages to perform a particular act—the treaty addresses itself to the political, not the judicial, department; and the legislature must execute the contract before it can become a rule for the court” (Foster and Elam v. Neilson, 27 U. S. 253, 314).
Your subcommittee has given careful consideration to the Copyright Convention in the light of both portions of the foregoing language of the court, and is convinced that no action on the part of Congress is necessary in order that the essential provisions of the convention shall become “a rule for the court” and consequently susceptible of judicial interpretation and enforcement. The Copyright Convention is clearly legislative in character rather than contractual.
The question of according immediate senatorial approval to the Copyright Convention becomes, therefore, solely one of sound policy. The convention has been of interest to the United States for more than 50 years. President Cleveland, at the time of its original adoption and signature, recommended it to congressional consideration. Representatives of the United States have attended conferences called for its formulation or revision. In 1931 the convention as revised in 1908 was transmitted to the Senate by President Hoover and received the unanimous approval of the Committee on Foreign Relations. In 1934, the revision of 1928 having entered into force, the convention, as thus revised, was sent to the Senate by President Roosevelt. Supporting the action of the Chief Executive was what appeared to be unanimity of unbiased approval, notably the strong endorsement of the educational and library interests of the entire country.
The Committee on Foreign Relations, as a whole and by subcommittee, held hearings the same year and later requested the appointment of an interdepartmental committee to hold further consultations with interested groups and persons, on the basis of which accompanying legislation might be drafted. This was done, and thereafter, without dissent, the Foreign Relations Committee reported the treaty favorably, and the advice and consent of the Senate to adherence thereto by the United States was given on April 19, 1935. The bill, however, was still before the Committee on Patents, to which it had been referred on its introduction by the chairman of the subcommittee, April 1, 1935, and the action on the treaty was subsequently rescinded because of a temporary understanding among members of the Foreign Relations Committee, and with certain groups interested in reform of existing copyright law, that the adoption of legislation should accompany the approval of the treaty. The bill was, in due course, reported out of committee and, after spirited debate and the acceptance of certain amendments, was passed by the Senate without a roll call on August 7, 1935.
When the Committee on Patents of the House of Representatives finally began consideration of the bill, some time after the beginning of the next session of Congress, 1936, there developed a practice among persons interested in defeating certain features of the bill—for the most part having nothing to do with the provisions of the treaty-to attack the treaty as a means of preventing action on the bill. The disingenuousness of these tactics is the more noticeable because organizations making use of them had previously been strong advocates of adherence, and their sudden reversal of position had no discernible connection with the merits or application of or the need for the treaty.
Your subcommittee has carefully considered the testimony brought out by the hearings of the House Committee on Patents, which is exhaustive in extent, and is firmly convinced that not one substantial argument against the treaty was put on record, or, indeed, exists. Your subcommittee is, furthermore, equally convinced that the continued indulgence of the Senate in not making finally effective its action of April 19, 1935, approving the treaty, simply plays into the hands of those who wish to defeat legislation under cover of opposition to the treaty. In other words, continued inaction on the treaty merely helps to postpone legislation and thus maintain a deadlock in which neither treaty nor legislation can be acted upon, and to prevent action which the Senate has emphatically expressed itself as approving. Your subcommittee has no doubt that, once there is positive final action on the treaty, final and favorable action on the bill, which, in substance, was reintroduced in the present Congress and is now before the Committees on Patents of the Senate and House, will follow as of course.
While the entry into force of the treaty without legislation is believed, on examination of the facts, to be entirely feasible and calculated to cause little, if any, real difficulty, your subcommittee, in order to go the limit in meeting the views of those who continue to insist upon legislation as a condition precedent to the treaty, recommends that the treaty shall remain inoperative for a year after final approval by the Senate. It is your subcommittee's confident expectation that, the log jam thus broken, there will be legislation long before the year has expired. In view of the real need for the benefits of the treaty, adverse criticism of this proviso may be expected; but, compared with the delay already experienced, certainty of the enjoyment of the advantages a year from the adoption of the treaty by the Senate must be regarded as a genuine gain by all who are sincerely anxious to see the public welfare served.
At hearings which your subcommittee conducted on April 12 and 13, 1937, and in certain communications received by it or its members, evidence has been presented of an exaggerated attitude of fear, on the part of a few interested groups, regarding several provisions of the treaty, should they become operative prior to the enactment of accompanying legislation. It seems appropriate to endeavor to quiet these fears by explaining briefly some of the reasons why your subcommittee believes them to be largely or wholly groundless.
it is (1) That the Copyright Convention would put into effect in this country "oral copyright.”—By the words "oral copyright” is apparently meant copyright in an expression of the mind that has not been reduced to any kind of permanent or lasting form. The phrase “oral copyright” does not occur in the convention nor has any evidence been presented to the effect that any such copyright has ever been recognized or claimed under the convention. Literary and artistic works are defined (art. 2, par. 1) to include "all productions in the literary, scientific, and artistic domain, whatever the mode or form of expression, such as: books, pamphlets, and other writings; lectures, addresses, sermons, and other works of like nature; dramatic or dramatico-musical works; choreographic works and pantomimes, the staging (mise en scène) of which is fixed in writing or otherwise; musical compositions with or without words; drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches, and plastic works relating to geography, topography, architecture, or the sciences."
This would seem to leave no room for interpretation in the sense feared.
(2) That the minimum statutory damage provisions of the act of 1909 would apply to invasiūn of the author's moral right set forth in the convention. The convention provides (art. 6 bis): "independently of the author's copyright,” he “shall retain the right to claim authorship of the work” and “the right to object” to its deformation. The act of 1909 (sec. 25) provides that "if any person shall infringe the copyright in any work,” he shall be liable to pay statutory damages which "shall in no case * be less than
two hundred and fifty dollars.” Since violation of moral right is not infringement of copyright, under the treaty, or the existing statute, the act would afford no remedy for such violation. Even if it were otherwise, the Federal courts are practically certain to avoid any construction of the statutory damage provision of the statute that would enlarge its meaning; witness recent judicial language regarding it (Doll v. Libin, 17 Federal Supplement, 546, 548):