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copyright law so that its provisions may be consonant with those required for entry into such a convention. As the committee undoubtedly knows, a strong and unprejudiced effort was made more than a year ago to have all the industries and parties interested in copyright present suggestions for such a revision of the copyright act, and while these efforts were most seriously ahd honestly made, there were left unsettled several basic differences among these interests which affect all users of copyright material, which should be ironed out in advance of the United States becoming party to any convention or union with respect to copyright.
As one who was present at most of the meetings in which these efforts were made, I can state that these basic differences must, as a practical matter, be settled before any consideration can be given to the joining of a convention or union. I cannot believe that hasty action, which will not reflect the changes in the uses of copyrightable material, or the greatly extended scope of such use since the enactment of the 1909 law, can benefit any one or lead to any result other than further confusion and harm. And, in my opinion, these fundamental differences cannot be ironed out during this time of stress and constantly increasing conflicts of interests.
For the foregoing reasons, we respectfully submit that no action should now be taken to make the United States a party to the International Convention of the Copyright Union. Respectfully submitted.
FREDERIC G. MELCHER, Chairman of the Copyright Committee of the Book Publishirs Bureau. Senator Thomas of Utah. Mrs. Ware, you have a statement, which will be received.
(Dr. Edith E. Ware submitted the following statement for the record:)
STATEMENT OF DR. EDITH E. WARE, EXECUTIVE SECRETARY OF
THE COMMITTEE FOR THE STUDY OF COPYRIGHT, APRIL 15, 1941
To Senate Foreign Relations Subcommittee on the Bern Convention.
Mr. CHAIRMAN: It is gratifying to be able to speak at a hearing that is asking for testimony in favor of the Bern Convention.
In regard to the policy of adhering to the Bern Convention, I should like to voice the conviction that membership in an International Union for the Protection of Literary and Artistic Property is today more important to the United States than it has ever been.
In the first place, there would be immediate benefits to our inter-American relations. Through membership in the Bern Union the misunderstandings and unfortunate situations between the United States and Brazil matters resulting from the lack of reciprocal automatic international copyright protection would be eliminated; and the way would be opened for improving similar relations with Uruguay and Argentina. This is important because every improvement in relations in the Western Hemisphere is a contribution to the solidarity that is part of our defense against hostile powers, as well as essential to a cooperative peace among American States. Since further progress in this direction is necessary, that progress will be advanced if we enter into this cooperative relationship with those states that are now prepared to remove copyright barriers to cultural and economic interchange.
Secondly, through membership in the Bern Convention we would be associating ourselves with Britain and the Commonwealth of Nations, lessening areas of dissatisfaction between them and us, and affirming by action our professed belief in international collaboration with them for mutual benefit.
Then, for very selfish reasons, we need the provisions of the Berne Convention to protect our authors and publishers from wholesale piracy and from discriminations that are alien to international cooperation designed to protect intellectual rights. Since Nazi and Fascist policy is opposed to all international association of a democratic character, we need to lend all possible support to every such association for the benefit of all cooperating democratic states and for the strengthening of democratic relations between nations.
And, finally, if we believe, as we must, that the present domination of Europe by aggressor nations must be brought to an end, then we are aware of problems of reconstruction that lie ahead. Whatever the details of that reconstruction, it is clear that every international cooperative agreement designed for mutual benefit that can be utilized will be an important factor in the building of a democratic international world. And because such a world cannot be achieved without active participation of the United States, it becomes obvious that every progress in this direction now will make the post-war process that much easier. Thus, because cooperative action on many fronts is going to be the sine quo non of a better world than the world of force that we are facing, it appears to be important that the United States adhere to the Bern Convention now.
Senator THOMAS of Utah. I have here a statement from Dr. M. L. Raney, director of the university libraries of the University of Chicago, which may be put in the record.
(The statement referred to is as follows:)
STATEMENT OF M. L. RANEY, DIRECTOR OF THE UNIVERSITY
LIBRARIES OF THE UNIVERSITY OF CHICAGO
THE UNIVERSITY OF CHICAGO
THE UNIVERSITY LIBRARIES
To the Senate Subcommiitee, Committee on Foreign Relations:
Whether the United States shall join the International Copyright Union is one question but whether by its practices it shall remain disqualified for admission is quite another. We are so disqualified and the disqualification goes back to a blunder we made at the very beginning, in 1790. That blunder has cost us dearly in world esteem. Charles Dickens, for example, visited America twice to shame us for it. In and out of Congress campaign after campaign from Henry Clay onward has been conducted to repair that blunder, but every time it snags on à vested interest and the decent thing stays undone.
It is not the fault of the Constitution. That could not be improved uponexclusive right to the author for a term, as likewise to the inventor. Author and inventor entered Congress in the same bill but got separated in enactment. Copyright went one way; patents, another. Anybody could patent, and how we have prospered from that gesture. Bui to the writings of residents only would we accord legal protection. The rest could be stolen. And for a century we stole right and left, while American literature languished. Why purchase manuscripts here if the lush output of the Victorian era could be pirated?
At length the public conscience revolted at this sordid business, and came the act of 1891, but all that act did was to replace the requirement of American residence with one of American manufacture. The foreign author need not come here to live in order to have the sanctity of his text respected in law, but unless he had it printed here American publishers could continue to rob him. as if the thief of your watch could go scot free if it were found to have a Swiss movement.
And there, save for removing, in the act of 1909, the requirement of American manufacture from foreign language publications, we still stand a Nation that legalizes the piracy of any work in English unless it is completely manufactured on United States soil. So today we are in the odd position of fully protecting a German book though made abroad but withholding all protection from a book in English if made in London. It is like our thrifty habit of patting China on the back while selling scrap iron to Japan for shooting China in front.
The high and commanding merit of the convention now under Senate consideration, with administration support, is that it abates the ancient scandal, for the central feature of this pact is that a copyright valid in one member country is automatically valid throughout.
This consideration in its behalf dwarfs all else, though the ugly fact it combats may not get a whisper in the hearings. Our only comfort is that American publishers are far superior to our law. They do not engage in wholesale piracy any more. English authors trust our honor. If they reprint it is because there is generally thought to be profit in having an American edition, too. And then they nut us to shame by frequently placing a British publisher's name on an
American title page without British manufacture and letting it count as a union publication.
Could there be a better time to end this miserable business and stop our insensate discrimination against the English-speaking peoples in favor of alien tongues? The Senate will raise the honor of America in the world by repealing the legalization of piracy and letting America take her proper seat in the assembly of nations that produce literature and validate its property right everywhere.
Ratification of this convention would end the long detour for America away from the Constitution and get her squarely back once more on that great highway. Let's do it now.
M. LLEWELLYN RANEY, Director. APRIL 12, 1941.
STATEMENT OF EDWARD A. SARGOY, CHAIRMAN OF COMMITTEE
ON COPYRIGHTS OF THE SECTION OF PATENT, TRADE-MARK, AND COPYRIGHT LAW OF THE AMERICAN BAR ASSOCIATION
Senator THOMAS of Utah. Please give your name.
Mr. SARGoy. Mr. Chairman, my name is Edward A. Sargoy, of New Rochelle, N. Y. I appear as a member of the board of the State of New York, in behalf of the American Bar Association, directed by Mr. Lloyd Sutton, chairman of the section of patent, trade-mark, and copyright law of the association. I am chairman of the section committee on copyrights.
The association has taken the position during the past few years of opposition to adherence as proposed. At its annual meeting in 1938 at Cleveland, and at the annual meeting in 1939 at San Francisco, the section adopted certain resolutions which upon its recommendation were in turn adopted by the association, to the effect, then, that while not opposed in principle to international copyright, the association felt that the domestic law should first be amended before there be any declaration of adherence, but that if the Senate nevertheless felt that there should be such adherence they should do so with certain reservations, particularly in respect of retroactive effects and reservations such as would not permit nationals of other countries to have greater rights in the United States than the American citizens would have in those countries, because of the fact that many nations which originally adhered to the Berne and Berlin revisions were permitted to retain the benefit of reservations when they subsequently adhered in 1928, or after, to the revision of Rome.
Now, apart from that, the association has recently taken even a more severe position at its last annual meeting in Philadelphia in 1940, in considering S. 3043, the bill to revise our copyright laws generally. The committee, while not endorsing the specific provisions of the bill, did endorse it as one of the ablest attempts made at a general revision, and endorsed its purpose of trying to provide that domestic legislation which would be preparatory to adhering to Rome.
However, from the floor of the section meeting, when the committee on copyrights of the section presented its report, there was added an amendment to the effect that the section, and subsequently the association which adopted it, did not approve automatic copyright from creation without formalities, and did not approve a term of copyright measured by the life of the author plus a fixed number of years, and did not endorse adherence to the copyright union.
I offer in my official capacity to state that that was the position taken by the association at its annual meeting in Philadelphia, and a few days thereafter taken by the house of delegates of the association.
Thank you very much.
Mr. Sargoy. I should like to submit the statement, which ties up the references to the resolutions.
Senator THOMAS of Utah. It will be included in the record.
(The statement submitted by Edward A. Sargoy is as follows:) STATEMENT BY EDWARD A. SARGOY AS TO THE POSITION OF THE AMERICAN BAR
ASSOCIATION ON PROPOSED ADHERENCE BY THE UNITED STATES TO THE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS AS REVISED AT ROME IN 1928
This statement is submitted by Edward A. Sargoy, of New Rochelle, N. Y., an attorney-at-law, practising in the city of New York.
As chairman of the committee on copyrights of the section of patent, trade-mark, and copyright law of the American Bar Association, I have been directed by Mr. Loyd Sutton, chairman of the above section, to indicate the position taken by the American Bar Association, upon recommendation of the section, with regard to adherence by the United States to the International Copyright Convention.
As hereinafter indicated, the association does not approve the proposed adherence of the United States to the Convention for the Protection of Literary and Artistic Works, as revised and signed at Rome on June 2, 1928.
The house of delegates of the association, at a meeting in Chicago on January 8, 1940, adopted, upon recommendation of its section of patent, trade-mark, and copyright law, the following resolution previously adopted by the section at its annual meeting in San Francisco on July 10, 1939:
“Resolved, That while not opposed in principle to adherence of the United States to the International Copyright Convention, Senate Executive Report No. 2, from the Committee on Foreign Relations, 76th Congress, first session, recommending that the Senate advise and consent to Executive E, 73d Congress, second session, to adhere to the International Copyright Convention as revised in Rome on July 2, 1928, should not be acted upon by the Senate until enabling legislation be first enacted by Congress as a whole to adjust our domestic law to the requirements of the Convention and adequately to protect the rights and interests of American citizens; but that if the Senate nevertheless believes adherence to be advisable without such prior revision of the domestic law, such adherence should be conditioned upon and made subject to the appropriate reservations in respect of oral copyright, freedom of contract for moral and other rights, protection against retroactivity and other like reservations specified in the resolution adopted by the house of delegates at its annual meeting in Cleveland, Ohio, on July 29, 1938, and by the section of patent, trade-mark, and copyright law at its annual meeting in Cleveland, Ohio, on July 26, 1938, in respect of Senate Executive Report No. 1 from the Seventy-fifth Congress, second session, making similar recommendations to the Senate in respect of said Executive E."
The reservations referred to in the above resolution, as suggested in the somewhat similar resolutions previously adopted on July 29, 1938, at Cleveland, by the house of delegates of the association and by the above section 4 days earlier, were as follows:
“There should be no such adherence until our own copyright law has been appropriately amended so as to adjust its provisions to the requirements of the International Copyright Convention, and further that adherence by the United States be with such reservations as will provide:
“(a) Conformity with article 1, section 8 of the Constitution of the United States by limiting copyrights to 'writings.'
“(b) Preservation of full freedom of contract in respect of any works or writings therein, incl ( ding but not limited to, so-called moral rights or authors.
"(c) 'Com plete protection against retroactive effects of adherence with respect to past and future uses which, but for adherence, would be in the public domain and lawful in the United States.
“(d) Such reservations as would prevent a national of a foreign country securing rights in the United States greater than those enjoyed by citizens of the Unit a States in the country of such national."
In recommending the foregoing resolutions to the association, the section itself favorably acted upon like recommendations contained in the reports of its committee on copyrights. Among the reasons mentioned by such committee in such recommendations to the section, were the following:
The matter of reservations by the United States, for example, was not deemed to be a matter of serious practical concern to the other countries adhering to the convention. This was so for the reason that many such countries themselves have reservations to the Rome Convention, particularly to protect their nationals against retroactive effects of adherence. These countries had retained such reservations previously made by them upon adherence to the convention under the terms of the Bern and Berlin revisions, as they were permitted to do when they subsequently adhered under the terms of the Rome revision of 1928. Great Britain, for example, so retained and still has many reservations to the present convention with respect to a considerable number of different countries, as do other adhering nations. While it might be contended that such adherence with reservations would not be deemed an acceptance of the offer in the terms provided by the convention as adopted in Rome, it could probably be considered a counteroffer capable of acceptance individually by the various contracting countries. As further indicated to the section, the United States should not be required, in the interests of fairness, to grant to an alien any rights in the United States greater than his country would grant to a citizen of the United States, and that appropriate reservations were needed to insure such equality.
Since adherence, upon becoming effective, would secure for aliens automatic copyright in the United States without formalities, and thereby remove many works from the public domain in this country, with possibly retroactive effects injurious to American interests, the Committee on Copyrights further pointed out to the section at the above 1938 Cleveland meeting:
A treaty of this nature, as pointed out in report of the subcommittee annexed to Senate Executive Report No. 1, is self-executing or selfoperating. Being the law of the land and equal in status, under the Constitution, with any act of Congress participated in by Senate and House as a whole, the treaty will automatically suspend the domestic copyright laws upon the date it becomes effective in respect of any provisions therein inconsistent with automatic requirements for copyright expressly provided by the convention. Thus, alien authors and owners, or their heirs or assignees, will, without preparatory enabling legislation in the United States, have automatic copyright in this country, without any further formalities whatever, in any works in which copyright still subsists abroad. Since the customary term abroad is the life of the author and 50 years, a vast body of alien copyrights will thus be lifted out of the public domain in the United States.
“However, the removal of a vast body of alien works from the public domain in the United States may work serious hardship upon those who have made expenditures of labor or money, or incurred liabilities in respect of such works in the United States while it was lawful still so to do. Upon the effective date of the treaty of adherence, these persons may be stopped from disseminating such works by the alien owner. It is necessary that there be some protection against the retroactive effects of adherence. This could be accomplished bly domestic enabling legislation along the lines indicated in the Duffy bill, S. 7 (75th Cong.) or S. 3047 (74th Cong.). Without such enabling legislation; a reservation is necessary. Many other adhering countries have reservations in respect of retroactivity upon adherence.”
It was further indicated by its committee that many authors and owners of American copyrights, who presumably would benefit by seeking international protection of their works, appeared to have lost their ardor of other years for international copyright. Associations representing American authors apparently resented the fact that alien authors would have copyright in the United States automatically upon creation of the work anywhere in the world, without the necessity of formalities binding upon American authors under the domestic copyright law, such as publication with notice, registration, and the like. Owners of American copyrights, despite their interest in foreign markets, were nevertheless vastly more dependent and concerned with the domestic American market. Exchange restrictions, tariffs, quotas, inability to take their money out of foreign countries, as well as racial, political, and economic discrimination against Americans, made the foreign market relatively less important. By securing copyright simultaneously in the United States and in a country adhering to the convention, many American copyright owners have, for practical purposes, for many years been securing copyright protection abroad, such as it may be, except in a country