Mr. KILROE. Why do we not have the legislation first, and then take up adherence?

Senator THOMAS of Utah. Senator Duffy went over this question 6 years ago, 4 years ago, and at another time. We all know there has been difficulty. I do not think we are gaining anything except this, Mr. Kilroe might like to suggest that it would be constructive for Congress, if Congress ratifies the treaty, to modify its recommendation made when it reported it out the last time it was before us for the lapse of a year before the treaty should go into effect, allowing 2 years or 3 years or 4 years, or the 33 years which you say is the period during which Congress has not acted. That, I think, would be a constructive suggestion. I know Mr. Kilroe does not want us to pad the hearing.

Mr. KILROE. Not at all. I merely want to get the real situation before the Senators who are now members of the committee.

Senator THOMAS of Utah. What reason have we, when we ask a question, to assume that Congress will do something or will not do something that is germane or proper to be done here? Congress will take care of itself.

Mr. KILROE. The point is that I want the committee to realize, if it does not already do so, that if we adhere to the Bern convention now, we will find that every part of our copyright law is in conflict with the convention, and we will have two sets of laws, and will have foreigners getting copyrights in the United States on better terms than those on which Americans can get copyrights. It is a very serious thing, and it was one of the big items before Senator Duffy.

STATEMENT OF STEPHEN P. LADAS

Mr. LADAS. Mr. Chairman, I do not represent anyone at the hearing today. I happen to have written a book, on which I spent about 5 years, and I am connected with a firm which handles international works, especially international patents, trademarks, copyrights, designs, and so forth. I have a statement which probably is a little too long to read, being four pages in length, and rather than read it, I will file it with you.

Senator THOMAS of Utah. You may submit it, and we will print it. Mr. LADAS. Before the statement is inserted, I should like to make three remarks. I should like to call the attention of the committee to this striking difference which we note today. If I take some goods, let us say tires, and put them in a case and send them from here to Japan, the law surrounds that shipment, that case of tires, with the broadest protection possible. No one can touch it. I can dispose of it in Japan as I see fit. But if I write a book today and send it to Japan, anyone can reprint it, can make a translation, without my permission. Just figure out the difference between an automobile tire and a work on which an author has spent probably years in writing, and see how the law treats the two producers. I think it would be sufficient to show how important it is that we do something about copyright of literary works.

The second point I wish to make is this. The way we are trying to protect American works todays is by a sordid procedure, if I may be permitted to call it that. The Bern Convention allows American authors to seek the protection of the convention, provided they pub

lish their works for the first time simultaneously in the United States and in a country party to that convention. Let me tell the committee what I am doing, representing American copyright owners. I ask them to provide me with a dozen copies of their work, which I send to Canada. I have an attorney there distribute those 12 copies in the book stores, and in libraries, and to execute an affidavit that he has done so on that day. I have him wire me beforehand that he is going to do it on a certain day, and I ask my client here to do it on the same day. So that I establish simultaneous publication. Then I claim protection on the affidavit. That is what we are doing constantly.

What is really protected, no one knows. Wherever the question has arisen, we have been met with trouble, in Holland and Japan. We simply do that because, as in all other things in life, we rely on people refraining from infringing our works. People do not infringe a copyright generally, but where a practice has existed for a long time, as in Holland, they do it regardless of the steps we are taking to publish works simultaneously.

Although I do not like to have to say it, I think it is important that I should state that that sort of procedure was used in handling the six volumes of President Roosevelt's speeches. The lawyers had to do something about international protection of that work, and they resorted to that procedure. It seems to me it is a legal trick to which we have descended, which seems to me undignified, although I have to do it every day.

The third remark I should like to make is that whereas we always talk of literary works, artistic works, and cultural interests, in copyright protection, the question of copyright protection arises in matters very closely connected with our foreign trade. For instance, various manufacturing firms in the United States claim copyright in this country of catalogs, and the copyright must be protected in foreign countries, but generally it is not protected. Not very long ago we had the case of a Japanese manufacturer of tires who copied word for word the catalog of a well-known_automobile tire manufacturer of this country, and that swung the Latin-American countries, and we could not do anything about it, simply because this manufacturer in the United States felt that they would not bother about a catalog. As you know, those companies issue a large number of catalogs, and it costs today about $60 really to establish a co-called simultaneous publication in Canada, because a lawyer must cover the case here, another lawyer in Canada, and no company will pay $60 in order to secure copyright protection of a little catalog. But the pirating of that catalog may be very serious to the foreign trade of the company. So that really we have to consider the economic interests of trade, in addition to the cultural interests, when we talk of international copyright.

Now, much of the discussion about this international convention, the Berne Convention, arises I believe from a confusion or misunderstanding with regard to the provisions. You had a perfect example just a few minutes ago when Mr. Kilroe and I disagreed on a matter which seems to me essential, how far the convention relieves American authors of complying with formalities in Italy. I can speak with some humility of that subject, because as I said I consumed 5 years in preparing this study for the Board of the Bureau of National

Research, and started to analyze the whole convention and the laws of the various countries issued in pursuance thereof, and the execution of the convention by the decisions in various countries, so that really I should submit that I may be given some attention when I say that that point is definitely clear, that when a party claims the protection of the convention he does not have to comply with any formality or conditions in any country, and may sue directly upon the creation of his copyright.

Now, the confusion that has arisen about the convention also pertains to the purpose of the various stipulations. You cannot understand correctly the convention unless you distinguish three categories of provisions in those conventions. One category is composed of provisions which merely refer to the domestic law in each country and provide that that law shall apply. As an example of that provision I refer to article 2, paragraph 4, which provides that works of art applied to industry-in other words, designs-shall be protected so far as the domestic legislation of each country allows. Now, many people have spoken of the fact that the convention protects designs. That is absolutely false. The convention merely says that each country is free to decide whether or not it shall protect designs by the copyright. Therefore that is not legislation on designs in the convention, it is a mere reference to the law of each country.

The second category of provisions includes those that express a wish or a principle, and they leave the further recognition to the laws of each country. I shall cite two examples. Article 7 of the convention says that the duration of the copyright shall be the life of the author and fifty years after his death. That is the first paragraph of Article 7. However, the second paragraph says that if the law of a country does not give this term of protection, then that law shall apply. It is clear that the duration for the life of the author and fifty years after his death is merely a wish that the convention expresses, that the law of each country should give that term of protection, but the law of each country is not compelled to give that term of protection. Another example is the so-called "moral rights" on which so much also has been said. It is said that a convention gives moral rights to the authors, who are given no moral rights under our law. The convention again has the first paragraph, wherein it announces the principle of "moral right," then, a second paragraph which says that the conditions, limitations, and terms under which moral rights are protected are determined by the domestic law. Again it is only a question of the principle, and then the application of the principle is left to a law. It would not be any undue undertaking for the moral rights, if we acceded to the convention under this stipulation.

The third category consists of provisions that constitute national legislation, in the sense that they announce a rule of law that must be applied in this country. These provisions are found in Article 4, which says that each country must protect the copyright without formality or condition; Article 6, which protects translation rights; Article 9, which protects articles of newspapers and periodicals; Article 11, which protects performance rights, and so on. Therefore, I submit that if we must compare the convention with our lawand I speak of our law today, I do not speak, although I am aware that a bill for amendment of the law will be introduced before the Congress if we compare the convention with our present law in order

to find whether there is a conflict, we must consider only this third category of provisions, because only those constitute definite engagements, definite rules of law.

In comparing the convention to our present act in that respect, we will find that the conflict really exists in only two provisions. This may appear striking to many here, but simply because I think no attention has been given to the nature of the stipulations of the convention. The first conflict is that the convention protects all unpublished works as well as published, and we of course protect unpublished works by the common law, and the statute protects only certain classes of work that may be registered under section 11. There may be a direct conflict, and the main conflict, I will say, is the provisions of our law which make copyright dependent upon formalities and provisions, notice of copyright, the deposit of copies, registration of copyright, and the manufacturing clause. Now, all those things are done away with in the convention, and therefore there is a definite conflict in the sense that if we accede to the convention, that means that we must protect works of foreign authors without insisting that they have a copyright notice, that they be deposited, that the copyright be registered, or that they be manufactured in the United States.

Now, the next question is, which has already been discussed here, Do we need a previous amendment of our act or of our law before we accede to the convention? If we do need it, then accession to the convention would be an ineffectual act, because we would not be able to do that, and my suggestion is that the convention, at least those provisions which constitute a conflict with our law, will be applied by our courts regardless of whether or not our copyright act has been amended. This is now definitely certain in view of the Government's decision in the Supreme Court, December 9, 1940, in the case of Bacardi Corporation of America v. Domenech, Treasurer, where the Court holds that a convention supersedes our law to the contrary.

In 1935, when the Senate submitted a report asking accession to the convention, an argument was made that we did not accede to the convention because in that way we would be protecting the works of German and Italian authors, when those countries had taken certain discriminatory measures against the works especially of Jewish authors. I think that argument does not stand analysis, for three

reasons.

First, because today we do protect German and Italian works, provided they comply with our law. Our law does not give us any right to discriminate against the works of those countries, under the proclamations of the President. Secondly, we would not be in a worse condition in going into the convention; on the contrary, we would be in a stronger position, because then if there was such a violation in Germany or Italy, we would claim the protection of the convention, and not only of the general law. The third answer to that argument is that because a country violates a convention, if Germany should violate the convention that does not mean that we should violate the convention. I am quite sure that the Postal Union Convention has been violated by Germany several times in the past, but we have not stepped out of the Postal Union Convention. There is an element of uncertainty in every convention, but you must rely upon a country's complying with the convention and enforcing the

same.

I will conclude as follows: I believe that accession to the International Copyright Convention should be consented to by the Senate at this time for several reasons

(1) Because we would put an end to a situation that has not been flattering to the prestige and the dignity of the United States when more than 40 countries in the world, including the British Empire, Japan, France, Germany, Italy, have for many years given full protection to the works of authors and artists under the convention.

(2) Because the United States is now an exporting country for literary and artistic works and we must protect our interests which are interests of authors, producers, and labor, by taking advantage of the protection of the convention and putting an end to the piracy of American works in foreign countries.

(3) Because by acceding to the convention we would be placed in a stronger position to establish more adequate inter-American copyright protection. Many of the Latin American countries have refused to protect adequately foreign works in view of the example which we have given. Already Brazil and Haiti are parties to the International Copyright Convention. Uruguay and Argentine are probably on the point of acceding since they have modernized their law in 1933 and 1937, respectively, by protecting foreign works without any condition or formality.

(4) Because accession particularly at this time would be an act of faith on our part in instrumentalities of law, order, and cooperative action for the protection of private interests and this act would strengthen the moral force of the convention and prevent lawlessness in this field.

May I also deal with two points that have come up in the discussion? One is that you, Mr. Chairman, asked the question whether at the present time, in this chaotic condition, the foreign countries. in Europe have been protecting copyrights and have been complying with and applying the convention, and my answer is, "Yes," and this answer is given to you on the basis of information in this periodical, Droit d'Auteur, which is issued by the Copyright Union, and which contains all legislation, decisions and news from the various countries concerning the copyright. The only others that I know of are the following:

Under the Trading With The Enemy Act in Great Britain, provision has been made for the possibility of granting compulsory license in respect to copyrighted works of enemies. So far as I know that provision has not yet been taken advantage of. In other words, no copyright license was issued in respect of German works, in England. Retaliating against this provision of Great Britain, Germany passed a similar ordinance, January 11, 1940, if I am not mistaken, simply a provision opposite to the provision of England, but there, also, no advantage has been taken of that, and there is here an article by a German author, published in this issue of July 15, 1940, confirming the fact that no action whatsoever has been taken in Germany to restrict or restrain copyrights of English authors, much less of simply foreign authors.

The other point that has been made in the discussion, I think by Mr. Kilroe, is that even though we accede to the convention now, we would not ameliorate our situation with Japan, because we have a treaty with Japan, made in 1903, which allows the Japanese people