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Press who has been agitating the matter, and he is voicing his desire to have the Berne Convention repealed in Canada.
Senator Thomas of Utah. Would repeal of the convention give them the manufacturer's clause?
Miss WARE. No, but they thought that with the reapeal they could have a manufacturer's clause.
Senator THOMAS of Utah. The manufacturer's clause would have to come by legislation?
Miss WARE. Yes; but they cannot get the manufacturer's clause with the Bern Convention, not the same kind we have in our law of 1909.
The manufacturer's clause, as rewritten in our proposed bill, Senate bill 3043, is quite a different matter. In the proposed bill it is not a condition of copyright protection. It is a regulation for wholesale distribution. The matter has been argued with Dr. Mentha, of the Bern Union, and at first, before he saw the text of our bill, he thought, from questions asked of him, that the situation was exactly the same as under the law of 1909. But when we sent him the text of the bill, and after a certain article which Dr. Ladas prepared was sent in and published in July 1940, he reexamined the bill and wrote a note which follows the article in Le Droit d'Auteur for July 1940, in which he concedes that the form of the manufacturing clause in our proposed bill is not a condition of copyright, but a regulation for wholesale distribution.
In that clause the only danger to the individual author losing his copyright is through exceeding the number of copies he is permitted to distribute at a trial sale. It might take too long to enter into all the arguments of cost of production, but publishers and others who have investigated it argue quite clearly that when it is known that an English book will sell and the test is about 500 or 700 volumeswhen it is known it will sell quickly, it is more profitable to publish here for quick distribution than to import. We have also collected comparative figures of the cost of importing the same book from abroad and of producing it here, and it is cheaper to reproduce it here than it is to import it from abroad, when you are doing it on a very large scale. Consequently, from the trade practice point of view, from the labor point of view, and from the Berne union point of view, the proposal we make seems to be a good working basis.
The only danger to the copyright owner is that he may, if he exceeds the quota allowed to him at the trial sale for large-scale distribution, lose his remedies, statutory and otherwise, for the book rights, but he keeps all of his other rights, and therefore his entire copyright has not been threatened. There was, I think, one other matter to which I should like to refer,
, that is, the matter with which Mr. Kay started. He said that if we joined the Bern Convention after we pass the law, the convention will nullify the law. If we pass the law after the convention, the provisions of the convention concerning retroactivity would also nullify our law.
I remember that in May 1939, several of us came down to discuss the matter, and Senator Pittman's advice was that it was much better to adhere to the Bern Convention and prepare our law which would interpret the convention under our constitutional framework, than it was to have the law first, that our interpretation would hold instead of the provision concerning retroactivity.
I believe there are a great many lawyers who talked about it, and they claim that they do not believe the courts would stand for the confiscation involved if it were on the scale Mr. Kaye indicates, that they would recognize the protection proposed in the reservation section in our bill. In our bill a section was included for the protection against the retroactive clause of section 45, and to my knowledge Dr. Mentha of the union has not protested that we could not have that clause. That clause, paragraph 3 of section 45, was composed with a great deal of care, and Mr. Kaye was very active in the wording of it, and at the time seemed quite content.
Senator THOMAS of Utah. Is this the bill that was introduced in the past Congress?
Miss WARE. Yes; it was introduced in January 1940.
Miss WARE. No, but the committee for the study of copyright speaks from the standpoint of its proposal in that bill, which it is ready to reintroduce.
There is one further point. I was not going to mention this, except for the statements of Mr. Kaye in regard to having the law first. I believe it was the 11th of May 1939, when a group of us asked you, Mr. Chairman, for a private hearing. We said that there was comparative group in New York which had been working for some time on a bill. We intended to get the bill finished, and we hoped the Bern Convention would not be pushed until we were ready. Those who were parties to that bill were members of the various national associations and interests which were concerned with copyright. The statement we. nade at that time was that we were not opposing the convention, but that we would like to put our own legal house in order, and we went ahead at doing so, and the bill that was given to you, and which you introduced in January 1940, was the summary of those efforts as presented by the committee for the study of copyright.
At the end of those sessions, which had lasted several months, we found that we had five points of disagreement, and those were indicated in the marginal notes which were printed in the record with the bill in January 1940. Those five points of disagreement did not concern any of the provisions with regard to international copyright protection. They did concern relations-intranational-in regard to copyright. For instance, there was a great controversy on the subject of employer and employee. There was a desire on the part of radio to have no minimum statutory remedy. There was an argument between two parties concerning whether we could or could not abolish our common law and make it entirely statutory law. Most of us believed that under our present legal set-up in this country we could not abolish the common law. Therefore our position was that when certain acts were performed by the author to get statutory copyright, he therefore surrendered his common law rights.
There were those, and I believe Mr. Kilroe was one who voiced it most strongly, who wanted us to say that common-law rights in copyright were abolished, and he contended that point, and was not willing to concede the way in which we had stated it.
There were two points, I believe, in relation to the degree to which certain things should be considered infringement.
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.
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 v 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