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There is dispute among the experts as to whether that right is alienable by the author, or inalienable. I believe it to be inalienable in many countries, but I will assume it to be alienable in order to take the argument for adherence in its most favorable form. Even if alienable, it requires a direct grant from the writer, which is a personal right, which cannot be assigned by a chain of title through societies and publishers. The result is that all of those industries which, in using foreign works, must alter the works substantially to adapt them to the exigencies of film or radio programs, or what not-all of those industries will do so under risk of suit, until they are able to contact the individual writers, which, as I have just pointed out, under present circumstances seems wholly impracticable. Thus the treasure chest of foreign compositions will be substantially closed, and a very great cultural blow will be struck, in my opinion.

I cannot refrain from pointing out that the countries which are in the convention are not particularly happy therein in this hemisphere. On February 12, this year, the Hon. Justice A. K. Maclean, chairman of the Copyright Appeal Board of the Dominion of Canada, at a public hearing expressed his viewpoint that adherence to the Berne Convention had proven unsatisfactory to Canadian interests, and that Canada should no longer be a party to that treaty.

Senator THOMAS of Utah. Have they denounced the treaty?
Mr. KAYE. No; they have not. That was just last February.

Senator THOMAS of Utah. On what occasion was this statement made?

Mr. KAYE. It was at the annual hearing of the Copyright Appeal Board; and I am bound to say that the statement was in the nature of dictum. It was the expression of personal opinion of Mr. Justice Maclean, which was not germane to the immediate matter under discussion at the public hearing.

You have pointed out very properly, Mr. Chairman, that we all admit that legislation is needed, and you have pointed to the 1 year which is left for adjusting legislation. But I point out that not only is that period insufficient, because reservations as well as legislation are needed

Senator THOMAS of Utah. Have you an idea about what period we should have in case we ratify?

Mr. KAYE. I do not think we should have an artificial deadline at all. I think that an artificial deadline is in many respects quite vicious. We ratify a treaty, and we admit that all the interests of American authorship and all the interests of American industry require revision of legislation, but we set an artificial time limit, we say, “Look here, all you people; unless this legislation gets through within *X' period, whatever you will, you will be enormously injured.” I see no point in such an artificial deadline.

In the first place, the differences between the interests affected are such that the Congress cannot expect a ready-made bill to be brought to it. In other words, the Congress itself will have to painstakingly weigh all of the interests which are involved, and will itself have to act in its semijudicial, as well as in its legislative, capacity to decide which of those interests should have respect; and with the pressure of urgent business which we assume will be on Congress during the next year, I should be extremely loath to see such an artificial deadline laid not only upon ourselves, but upon the Congress itself.

the Congress itself. It seems to me

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that what we should do is to put our house in order before we adhere to the treaty.

I am trying to indicate to you that it is hard for us to see why adherence to the treaty at this moment is so necessary. The recent case in the Supreme Court of the Washingtonian Publishing Co. against Pearson and Allen practically eliminated all the requirements of formality except for the day preceding the bringing of copyright suit.

Senator Thomas of Utah. Did that bring terrible chaos in America?

Mr. KayE. No. The chaos I am referring to is a practical chaos at this moment–inability to contact people.

Senator Thomas of Utah. Is not a decision of the Supreme Court quite a practical chaos?

Mr. KAYE. We are used to the Supreme Court.
Senator THOMAS of Utah. But you are not used to treaties?
Mr. KAYE. We are not used to a treaty such as this.

Senator Thomas of Utah. I wonder how many times America, by treaty, has changed American habits more than the Supreme Court has by striking down a law, or has changed a habit through a decision. Are not we in America just a country that is suffering all the time from these terrible uncertainties? We are not sure of the Constitution, are we? We are not sure of any institution in government, are we? are not sure of any law, are we? Do you not see that Congress has existed for 150 years and never once has one Congress bound the next Congress? Never once have we been certain that any law we have passed will not be stricken down, since the Marbury v. Madison case. In fact, we live quite a bit by faith, and we get along pretty well, and passed will not be stricken down, since the Marbury v. Madison case if, for example, the terrible chaos, which you are mentioning all the time, is facing us by one of these single acts, then what kind of chaos is facing this country every time we go into an election?

Mr. Kaye. I have been clumsily inept in making my point.
Senator THOMAS of Utah. I do not think


have. Mr. KAYE. My point is not that it is difficult to adapt one's self to changes in law. We live by change, and I hope I do not seem to be so hide-bound as not to realize that. My point is, if I may refer to an example I have never concluded, if I have an investment of $50,000 in a work in Austria or Czechoslovakia or Poland

Senator Thomas of Utah. Do you remember the eighteenth amendment? Were there any moneys invested in liquor and liquor manufacture?

Mr. KAYE. I am trying to go beyond that. I said it is not only that the money will be lost, but there is no way to secure the right to use the work. I assure you that there is no way of getting into the heart of Austria and the heart of Czechoslovakia and the heart of Poland today and saying to a writer, “We want to perform” or “We want to continue to use the plates,” or “We want to continue the distribution of a volume of your works. Will you please give us your consent?” It is impossible to do that. It is one thing to create a law which allows people to deal with each other and see each other; it is another thing to act at a time when the parties are separated, when it is as impossible for them to get in touch with each other as if they lived on different planets, instead of on different continents. That is my point in referring to chaos, not a hide-bound opposition to change by treaty, but a statement of the complete unsuitability at this time of setting an artificial deadline on ourselves.

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I can conclude rather briefly. With respect to the two points which have been urged here, one is of protection from piracy. Those of us who are presumably to be protected are willing to waive that protection. I have pointed out in how few countries and what unimportant countries, commercially, although not nationally, the treaty would obtain with any force or effect.

When it comes to the gesture of promotion of cultural relations, I have tried to indicate that we may lose as much as we gain by the temporary-who knows how long "temporary” is, another year, or another 10 years, we would hate to have to guess—by the temporary unavailability of great works. I go a point further, there is not only the chaos to which you have referred, not only the destruction of investment, which as you point out, it is sometimes the duty of citizens to bear; but there will be complete inaccessability of works to the public. There would be not only a difference in law between foreigners and nationals in this country, discriminatory against our own nationals and easier on our foreign neighbors than on ourselves; but also oral copyright, with all the dangers it has. In our statutes these are huge penalty clauses, so that a man may say he whistled a tune in Germany and if he gets somebody to say, “I heard you whistle it” and the judge and the jury believe him, he can recover $250 a performance

Senator THOMAS of Utah. Have you a case of that kind ?

Mr. KAYE. We have a case of that kind, fortunately, because our present copyright law does require some formality, but we have many cases like that in the field of common-law copyright. That is precisely the situation which exists today with respect to unpublished works, with respect to which no formalities have been taken. They are the most difficult cases to defend, because many of the witnesses act in complete good faith they think they heard the work, they are honest people, and those cases are very frequently lost by the defendant. When they are lost at present, all the plaintiff gets is his actual damages, or an actual accounting, but in that type of tenuous, obscure, inchoate case the offense, has to come within our copyright statute. If our enormously rigorous penalty clauses, which exist in no other country, are to become applicable, I assure you there will be a great multiplicity of suits which will have great seriousness.

It seems to me the only useful purpose the treaty accomplishes is to extend the time to complete the formalities as to printed books in the English language published abroad. The Washingtonian case practically washed up all other formalities. That is extension of time accomplished admirably by the bill introduced by Senator Bone, or Mr. Kramer's bill, House bill 3331, which extends the time, giving time for the accomplishment of certain formalities by persons deprived of means of communication by reason of the war.

I say that for any assistance against piracy in these few countries, an assistance which we do not think will be great, and for the sake of a moral gesture, the price which the American public is being asked to pay is too high.



Miss WARE. Mr. Chairman, I wish to answer several of the assertions which have just been made by Mr. Kaye.

First, in regard to the provision of the convention on moral right, the Convention of Rome, in article 6 (bis), in the second paragraph, provides:

It is left to the national legislation of each of the countries of the union to establish the conditions for the exercise of these rights.

Therefore you get a declaration of the principle of moral right, but you get an enforcement of that moral right under the law of each country.

The proposal which was made in Europe originally for the extension of moral right to become an inalienable right was a proposal for the next revision of the Bern Convention which was to take place at Brussels. That proposal was modified. To say that moral right shall be inalienable is quite a different thing from declaring that there is a principle of moral right which shall be carried out according to the law of each country. Because it was modified, and because of the protests from various industrial interests in this country and other persons who have studied the matter, our committee sent a representative to the committee of experts who were working on the agenda for the next conference at Brussels,

and at that meeting the European members explained to Professor Deak, our representative, that for the first time they had understood all the implications, or more of the implications than ever before, of the protests that were made from this country in relation to moral rights, oral rights, and retroactivity.

At that meeting the committee of experts agreed to recommend to the diplomatic conference an express sentence that would make moral rights inalienable. Therefore they would allow it to stay what it was now.

In practice moral right, under our common law, has been recognized, though not necessarily by that name, that is, the personal right.

In the bill which the committee for the study of copyright proposed, a section was included which is described as the moral-right section. It only purports to describe existing rights under our common law, but it purports to write them into the statute in order that people in civil-law countries who are not used to our common law set-up shall know what our practice is. In other words, the proposed bill does not change our practice. It merely records what that practice is. That is the way it was dealt with in the round-table conference which took place under the auspices of the committee for the study of copyright.

In relation to oral copyright, against which Mr. Kaye protested, there was the same effort on our part, through our representative to the committee of experts, to protest the use of that. The committee agreed to recommend to the diplomatic conference that the regulation of this question should be left to national legislation. But that does not seem to be the whole story, for this reason. Under our constitutional mandate we are allowed to grant copyright to writings. It is the general interpretation in this country that copyright is granted to writings, and when we were working in the round table conference, the matter of oral copyright was discussed, and it was assumed by

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everybody present that oral copyright, and copyright in matters that were not reduced to writing either before or after presentation, was impossible under the constitutional mandate, that our copyright law should refer to matters of writing.

We will find that lectures and addresses and sermons and other works of like nature, according to the Rome revision of the Bern Convention, are listed as copyrightable subjects. So into our bill this statement was carefully written, to conform with what we believe to be constitutional principle: "Lectures, sermons addresses, and works of a similar nature, prepared for oral delivery,” assuming that there would be some written form and that therefore we would be in conformity with the practice set forth by the constitutional mandate, and also the decisions of the courts, that copyright rests in writings.

In regard to the formality that is left after the Washingtonian decision, that formality is the putting of the words “copyright by AB” and the date on the back of the title page. That seems a very simple formality. In reality, the records which the Authors' League have would indicate that somewhere around 50 percent of the works fail of copyright because of the failure of some one beyond the control of the author to see that that is done. That is the American situation. The foreign situation is that very frequently it does not occur to a foreign author that his work is going to have international importance. He may not know about the provision. He must put those words on in the proper place when his work is first published, or he may not ever get a copyright in this country. Therefore copyright by foreign authors is not usual, unless the author is a best seller and knows the ropes in this country through an American publisher.

Consequently, even though we have a very small formality left, it is a formality which does prevent protection on the part of foreign authors and is the occasion for a great deal of ill feeling. There have been rising complaints, within the last couple of years, particularly, in regard to music that came from Brazil, that because they did not have those words included when it was first published, some adaptation was published in this country and copyrighted by the music publisher, and the Brazilians were seriously offended.

In regard to the Canadian protest, I happen to have some personal experience. There is a group of publishers there, mainly the Garden City Press, who are complaining against the Berne Convention. They discovered the existence of the committee for the study of copyright. They discovered an article which appeared under my name in the Inter-American Quarterly for January, and they asked me if I would come to Canada and discuss the matter with them. What they want is to get a manufacturing clause for Canada so that they can force the books to be manufactured in Canada, in the way we have been able under our manufacturing clause to force the books to be manufactured here.

They have other complaints. They say because they are in the Berne Convention, they cannot print the King James' version of the Bible. They are also complaining, in French Canada, because the Society of French Authors ask such high prices, and they would not have to pay them if they were not in the Berne Convention. Those were the three points they were much disturbed about. I sat around with 30 of them 2 weeks ago next Saturday for about 4 hours and a half, and that was their case. It is the president of the Garden City

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