proviso that our copyright law shall not be amended by removing the manufacturing clause. We are fearful such proviso will not be adopted.

As soon as the treaty is ratified, then the drive to enact Senate bill 7 will be undertaken. That will be our final fight for the protection of the American compositor, printer, and binder and all of the allied trades supplying the industry. The fight to eliminate the manufacturing clause from our domestic copyright bill will be difficult to beat, but it must be done.

Finally, be not misled by the argument that tariff laws will protect American industry. They might if we could be sure of an enforced protective tariff ideology. That such does not exist is manifest by the determination of our Secretary of State to obtain trade agreements with all nations wherein concessions up to 50 percent of existing tariff duties may be granted. Such an agreement is pending now with the United Kingdom-the greatest competitor with the American printer.

Business is bad. It will be worse when we join the Union if Senate bill 7 is enacted, and still worse when the trade agreement with the United Kingdom is effective if books are listed with reductions in the existing all too low tariff.

Approximately 500,000 persons, employers, and employees alike, earning their daily bread in the graphic arts industry will suffer either directly or indirectly if this iniquities treaty and this legislation are foisted upon the American people, exposing this industry, for the benefit of a few, to the destructive competition of cheap, foreign made merchandise protected through international copyright. It is in the interest of every compositor, printer, binder, and labor generally, that you write your Senators, asking them to vote against the copyright treaty, your Senators and Representatives protesting enactment of Senate bill 7, and to the Secretary of State demanding that books, printed sheets, etc., be omitted from any trade treaty with the United Kingdom. Organized labor has been most helpful in its opposition to the legislation and treaties.

STATEMENT OF SYDNEY M. KAYE, REPRESENTING THE NATIONAL ASSOCIATION OF BROADCASTERS

Senator THOMAS of Utah. Dr. McClure, who was in the middle of his testimony, is called to a committee of the House of Representatives this morning. I told him he might continue later.

We will continue the hearing by listening to the statement of Mr. Sydney M. Kaye. I will ask Mr. Kaye to state his name for the record, and whom he represents.

Mr. KAYE. My name is Sydney M. Kaye; I am an attorney practicing in New York City, and I appear as copyright counsel for the National Association of Broadcasters, a trade organization which is representative of the broadcasting industry.

It is the duty of citizens at all times to heed attentively any suggestion from our Department of State, especially so in these times, and it is with a sense of responsibility, therefor, that the broadcasting industry states its opposition to adherence, at this time, to the International Copyright Convention. We feel that as an industry we can do that with somewhat better grace, perhaps, because in normal times, and with proper conditions and reservations, the broadcasting industry has never opposed in theory adherence to a convention.

At the last hearing we heard a sympathetic presentation of the case for adherence and, as I understand it, the reasons presented for immediate adherence were two: First, that it would aid in the cementing of cultural relations, and be a reaffirmation of our faith in the orderly processes of law; and, second, that it would be an aid to our representatives in the Department of State in combating piracy abroad of American works. I take it that the problem of this subcommittee is to ascertain the extent to which those ends will be accomplished and the price American citizens will have to pay for the benefits achieved.

I cannot refrain from stressing at the outset that apparently all of the industries, and the representatives of the great associations of authors, who are presumably the beneficiaries of the treaty, seem to be opposed to adherence at this time, even though many of them are theoretically in favor of adherence at other times. The reasons for that opposition are intensely practical and extremely important. I take it that our adherence can improve our relationship only with those countries which will be parties to the treaty with us. Excluding the British Empire, in whose dominions and territories and possessions American authorship is fully respected at the present time; excluding Brazil and Haiti, which are already parties with the United States to a hemispheric convention; and excluding the countries which are Axis Powers, or dominated by the Axis Powers, the list of countries which are left is a somewhat melancholy roll call-part of Finland; Greece; the Irish Free State (if it is a member, it has never signed the treaty, and its adherence is somewhat doubtful) little Monaco; Portugal; Thailand, Switzerland, and Turkey.

A vast majority of the countries which are parties to the treaty are at present in the hands of, or dominated by, the Axis Powers, and I trust I am not guilty of an impropriety if I suggest that many American citizens feel that the likelihood of a treaty being respected in those countries at this time is slight.

One of the effects, perhaps the most important effect, of our adherence to the treaty at this time, is that an enormous number of works in which there is an investment of I do not know how many millions of dollars-millions of dollars from the viewpoint of the broadcasting industry alone-which are now in the public domain, will be thrown into the field of copyright protection. Time permits mention of only a very few of those works. Included would be the symphonies of Bruch and Bruckner, works of Chabrier, Charpentier, many works of Debussy and Delibes, Dukas' The Sorcerer's Apprentice, Dvorak's New World Symphony, works of Elgar, Caesar Franck's symphony, Gounod's Funeral March of a Marionette, Grieg's Peer Gynt Suite, Humperdinck's Hansel and Gretel, Leoncavallo's Pagliacci, Mascagni's Cavalleria Rusticana, the works of Massenet, Offenbach's Tales of Hoffman, Symphonies by Saint-Saens, Smetana's Bartered Bride, Lehar's The Merry Widow, many works of Richard Strauss, Verdi's Otello, the Gilbert and Sullivan operettas, and heaven knows how many others. The list is one which could be multiplied indefinitely.

Not only are there millions of dollars invested in the printing of these works and their special arrangement in various forms which would be rendered completely inutile. Still worse, it is not only a question of money, but the works would be unusable because it is impossible to contact their authors at the present time. Of course, that is not true in all these cases, but in very many of the cases, I can assure you, as a matter of practical experience, one cannot get in touch with these writers.

In many of the countries which have been overrun by the Axis Powers the copyright organizations either have been taken over in toto, as in the case of Austria, where the Austrian society was simply absorbed into the German society, but in other countries, such as France, representatives of the Nazi economy are seated in the places of primary authority in these organizations. You have your choice

either of dealing with those representatives (which is not only unwelcome, but legally dangerous, because I am by no means assured that the American courts would recognize these seizures by Germany); or of refraining from using those works at all. I cannot help thinking that the cultural effect of our omitting to use those works, which is all that keeps the culture of those overrun countries alive, would be extremely unfortunate. I should be greatly distressed if the great works of Austrian authorship were for years to become unavailable to the American public.

Senator THOMAS of Utah. I do not think you are making that point clear enough for the record. Take an illustration, and tell us how, through the acceptance of this treaty on our part, Gilbert and Sullivan's operas would become unavailable.

Mr. KAYE. They would not become unavailable, because as to the English works we could at least establish contacts with their copyright proprietors.

Senator THOMAS of Utah. Get an illustration, so that we can see what the point is.

Mr. KAYE. For instance, let me take the case of Lehar's The Merry Widow as an example. I do not know its exact status, but it will serve. That work is in the public domain in the United States. It is published here by American music publishers; who have lawfully invested money in engraved plates, and the like.

Senator THOMAS of Utah. Its origin was Austria?

Mr. KAYE. Its origin was Austria, and this work is in the public domain, not being protected by our present copyright laws.

Senator THOMAS of Utah. What would happen if this treaty were ratified? Let us make it so simple that even I can understand it. What would happen, if we ratified the treaty, to that copyright?

Mr. KAYE. If we ratified the treaty, that work immediately would become subject to copyright protection.

Senator THOMAS of Utah. Do you mean to say that this treaty is retroactive, and that a copyright law which is already established becomes ineffective by the treaty?

Mr. KAYE. That is precisely the effect of the treaty. The treaty provides for retroactivity; namely, works which are in the public domain in this country at the time of adherence come into the domain of protection if they are still protected by copyright in the country of their origin.

Senator THOMAS of Utah. Let us take Austria. If the copyright has gone to smash, so that you cannot trust it any longer, is Austrian copyright considered by our courts as being what it was 10 years ago or 15 years ago?

Mr. KAYE. The Austrian law is unaffected and the work remains copyrighted there. We have the further difficulty that one cannot establish communication with the Austrian owner.

Senator THOMAS of Utah. The law is in force?

Mr. KAYE. The law is in force. Australia is a party to this convention-all of these countries are-and if we join this convention, all of these works will automatically leap from the public domain to the domain of copyright protection. That would be bad enough in normal times. The 1937 committee, in recommending adherence after a period of a year, said:

Within that period users of the works of authors in other countries should be able readily to ascertain what are and are not their rights with respect to such

use.

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Senator THOMAS of Utah. So that we may bring it specifically into the record, what you are stressing here is the need of further legislation to cover this convention. That is the reason for the reservation

of the report; is it not?

Mr. KAYE. I am not sure that legislation is enough. England, for instance, when it joined the convention, did so subject not only to legislation, but to a reservation, namely, a condition to its adherence to the treaty, that those works in which investment had been madeand this is reaffirmed in the Order of Council of 1933, No. 253; that adherence was subject to the reservation that investments legally made in works, made while the works were in the public domain, should be undisturbed, subject to certain conditions, by subsequent adherence. I believe there was a provision that they would have to tender reasonable compensation, or arbitrate the amount of compensation.

Senator THOMAS of Utah. In other words, the chaos which you have suggested might come about in America, was by the reservation completely overcome in England?

Mr. KAYE. It was; but you will recollect that that was a reservation. A reservation cannot be accomplished merely by domestic legislation.

Senator THOMAS of Utah. How was it accomplished in England? Mr. KAYE. England had the right to join subject to a condition. Senator THOMAS of Utah. Surely.

Mr. KAYE. We could join conditionally if that was stated in our resolution, if the conditions were set forth, and if we could get either the unanimous consent of the parties already to the treaty, or have a convention of those parties at which we could talk to them and obtain their agreement.

Senator THOMAS of Utah. I am still seeking information. It seems to me you are straining your argument too far, because you have given the illustration of England, where chaos did not follow. You have given an illustration about a reservation which was rather orderly. When a country makes a reservation to a treaty, even if the reservation is not universally respected, it is the country's notice of the way in which it is going to enforce that treaty, is it not?

Mr. KAYE. This treaty provides

Senator THOMAS of Utah. Let us not go back to the treaty. You have made a great point that all of these wonderful works you have cited which are in the public domain in the United States, would be affected, and you have made the point that there would be chaos. I asked you to give a specific case, to see how this chaos comes about, and then we discover that England ratified the treaty and made certain reservations, and the chaos did not follow in England; and you have pointed out that in our case, in order to overcome that chaos, we put what is a reservation, and that the treaty will not go into effect until a year, so that Congress may have time to pass whtever domestic legislation it wishes to cover the case. The point is that these things will happen if nothing is done, is it not?

Mr. KAYE. No. Will you permit me to analyze that a moment? Senator THOMAS of Utah. Yes; I will not stop your argument. am trying to let this record stand, because I think when we make an

argument as strong as you have made that argument, it may go out. the window, because here is Great Britain, and those things did not happen, and here is some other country in which those things did not happen. The United States is not going to allow chaos to come into its affairs. We have courts, we have run along for 150 years, and no matter how violent the change in our law has been, it has always been very orderly, and very few people have been violently affected. That is true, is it not?

Mr. KAYE. Certainly.

Senator THOMAS of Utah. Due to the fine work of the great lawyers like yourself.

Mr. KAYE. Due to the fine work of the lawyers in the House of Congress. I hope you will bear with me, because the subject is a trifle technical, and I am conscious of not being too lucid about it.

The very essence of the Convention of Rome is that it is retroactive. The very essence of the Convention of Rome, the present convention, which is the only convention we could join, is that it must be accepted without reservation. In other words, no country is privileged any longer to make reservations to the treaty. England, when it adhered to a previous treaty, was permitted to make reservations, and by the terms of the Convention at Rome, previous reservations were permitted to exist, but now no new reservations may be made.

It is the opinion of all authorities, including our Department of State, that the Rome Convention is in large part self-executing, and it has the same force as a domestic statute; and to the extent that previous legislation is inconsistent with it, the treaty itself acts as an automatic repealer of such inconsistent legislation. If, therefore, prior to the effective date of the treaty we adopt legislation which is inconsistent with the treaty, joining the treaty will repeal it. If subsubsequent to adherence to the treaty we pass a piece of domestic legislation which is incongruous to it, then we are acting in derogation of the treaty. The solution, therefore, is a reservation, and a reservation to the convention of Rome, unlike the way in which England took its effective action, depends upon unanimous consent, which under the circumstances of the world today is unobtainable, because most of these countries cannot speak for themselves.

The example of England, therefore, is the example of a country which prevented chaos by exercising a legal right as it existed at that time but no longer exists. We would have to exercise a legal right as it exists now, and my point is that the state of the world unfortunately is such that a period of 1 year would give us only a theoretical and not a real opportunity to exercise any right which is dependent upon the assent of all these European nations.

You have indicated that you feel that my argument is a vigorous one, and it is precisely for that reason that I feel it important to call it to your attention.

I can go a point further. Not only will this vast body of works be thrown from public domain to protected territory, the investments made in them disappear, and their use for a period of time perhaps inhibited, but under the moral rights clause of the convention, no changes or alterations or modifications can be made in a work without risk of suit from the author, if the changes are made, and that applies to all works now copyrighted, as well as subsequently copyrighted.