And among those provisions the court quotes article 58: which reads: The author of an intellectual work, or those representing him, must deposit in the office for intellectual property in the Ministry of National Economy one copy of the work, in the manner and within the periods provided by the regulations. That was the quotation to which Mr. Kilroe referred when he said that certain formalities had been recognized by our circuit court. Senator THOMAS of Utah. And the court accepts that formality as having been accomplished or as having been necessary? Mr. BRYLAWSKI. Well, that was important in this case, as to whether or not the work had been published, by virtue of having been so deposited. Now, the statement has been made here that most of the convention countries had adhered to the Rome Convention without reservations. As a matter of fact there are a number of countries to the earlier conventions which have not yet ratified the Rome Convention, and certainly not all of the ratifying countries have adhered without any reservations. For example, Greece in adhering to the Rome Convention, reserved translating rights, performing rights in dramatic works, performing rights in dramatic musical works, and performing rights in musical works. Japan reserved translating rights. Yugoslavia also reserved the right of translation into the Yugoslavian language. England has been mentioned as one of the countries which adhered without reservation. Now, that may be true insofar as the records of the convention at Bern show, but it is certainly not true in fact. Unlike the United States, no treaty entered into in Great Britain, of this character, becomes the law of the realm until it has been made. so by an Order in Council. Senator THOMAS of Utah. In other words, England does not follow our provision of the Constitution, that it shall become the supreme law of the land? Mr. BRYLAWSKI. That is correct, sir. Here, whenever a treaty has been negotiated by the President and has been ratified by the Congress it becomes the supreme law of the land. That is not true of England. The Rome Convention did not become the law of England until the passage of an Order in Council, in March 1933. I have here a copy of that order, which I will be glad to give to the committee, if you do not already have one. Senator THOMAS of Utah. That is the same order in council which has already been mentioned in the record, is it not? Mr. BRYLAWSKI. I handed it to Mr. Kaye a few minutes ago, and I got it back. Senator THOMAS of Utah. We should be very glad to have it. (The order referred to, entitled "The Copyright, Rome Convention, Order, 1933," is on file with the clerk of the committee.) Mr. BRYLAWSKI. I call the committee's attention to the numerous reservations to the treaty made by England, at the time the treaty became operative in that country. Despite the fact and it is a fact that many of the adhering countries made reservations for the protection of the rights of their na tionals, we are asked to forward our adherence without any reservation whatsoever for the protection of the rights of our own nationals. We are told that by reason of our failure to adhere within the time specified in the Rome Convention we cannot become a party to this convention, unless we come in without any such reservations. Several years ago Mr. Kilroe went through, on behalf of the motion-picture industry, and he visited the officials of the convention. He visited. officials in England, France, Italy, and other countries, who had played a large part in the drafting of the Rome Convention, and it was his opinion, and it was so stated to the former subcommittee that had these meetings, that a number of the countries would be so delighted, especially England, to have us come into the convention, that they thought that unanimous consent could be secured for our adherence with such reservations as we thought necessary to protect the rights of our nationals; and, accordingly, at the time of the consideration of the treaty by Senator Duffy's subcommittee, the following draft on this subject was accepted by this subcommittee, and this is a "Draft resolution": Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the adherence of the United States to Executive E, Seventythird Congress, second session, the Convention for the Protection of Literary and Artistic Works, as revised and signed at Rome, June 2, 1928: Provided, however, That such adherence shall be upon the conditions and reservations hereinafter specified, to be declared in writing in the instrument communicating to the Government of the Swiss Confederation the accession of the United States, said conditions and reservations being that nothing contained in said convention shall be deemed: (1) to grant any protection in the United States for any work which is not in the form or expression of a "writing" within the meaning of article 1, section 8 of the Constitution of the United States That has reference to the so-called oral copyright. (2) to limit or otherwise affect the right of full freedom of contract between the author of a work and an assignee or licensee thereof, or invalidate any express waiver or release by the author of any such rights or of any remedies or relief to which he might be entitled in consequence of a violation thereof, and the assignee or licensee of the author's moral right may, with the author's permission, make any change in the work which the author himself would have had a right to make prior to such assignment: Provided, That in the absence of special contract or notice by the author at the time he consented to use of his work, the necessary editing, arranging, or adaptation of such work for publication in book form or for use in a newspaper, magazine, or periodical, in broadcasting, in motion pictures, or in mechanical or electrical reproduction, in accordance with customary standards and reasonable requirements, shall not be deemed to contravene the right of authors reserved in this section; And provided further, That nothing in this section shall be deemed to alter or in any manner impair any right or remedy of an author at common law or in equity; That reservation was to protect the authors against possible misinterpretation under the convention of an author's moral rights. Senator THOMAS of Utah. That reservation was accepted when Senator Duffy reported the treaty out, was it not? Mr. BRYLAWSKI. Yes. Senator THOMAS of Utah. Whenever it was. Mr. BRYLAWSKI. 1939, I think it was. Senator THOMAS of Utah. It was earlier than 1939. Miss WARE. Yes; back in 1936 or 1937. Mr. BRYLAWSKI. There was a third reservation, as follows: (3) To act retroactively as to any works not protected in the United States prior to the date on which the adherence of the United States to said convention becomes effective, so as to impair or prejudice any acts done or rights acquired or exercised as to copies of such works, the making of further copies or other forms of reproduction or performance or dissemination thereof or the continuance of any business, undertaking, or enterprise theretofore commenced in the United States, or to make subject to remedy any person, firm, corporation, or association who has, prior to such date of adherence, taken any action or commenced any undertaking or incurred any expense or liability in the United States or elsewhere in connection with the actual or intended exploitation, production, reproduction, exhibition, rendition, performance, or dissemination of any such work in the United States. That was our reservation against retroactivity. Miss WARE. Senator Thomas, is it possible, if those quotations. from the Duffy bill are to be written into the record, that we can have the similar quotations which are referred to, from our proposed bill, written into the record-our statement concerning moral rights and our statement concerning retroactivity? If those are to be written in, may ours be written in, the ones to which I referred, but which Í refrained from reading at that time? Senator THOMAS of Utah. We should be glad to have both of them written into the record, although I must say that the bill for domestic legislation is not before this committee. However, I think it is well for the information of the Senate that these be written into the record. The bill will be handled by the Patents Committee, not by us. Miss WARE. Exactly; and that is the reason, Senator Thomas, no reference was made yesterday on the part of those who spoke for the treaty, to our bill. The only reference came in refutation of assertions that were made this morning, and it did not seem quite fair to allow them to pass without refutation. I make this request, that the text be embodied, if those provisions are to be embodied that were just read. Senator THOMAS of Utah. I think that to have those provisions in the record is very good as a matter of historical information for the committee. I do not see how we can avoid having some mention made of the proposed domestic law which is introduced, so I think it is perfectly proper to have both in the record for the information they give; but I trust that no one will call the whole hearing out of order because we are infringing upon a right that belongs to the Patents Committee. (The material presented for the record by Miss Ware is as follows:) SEC. 5. (1) Nothing in this Act nor any election to have copyright under this Act, shall be deemed to alter or in any manner impair any legal or equitable right or remedy of an author under common law or statutory law other than this Act, to claim the paternity of his work as well as the right to object to every deformation, mutilation, or other modification of the said work which may be prejudicial to his honor or to his reputation; (2) Nothing in this Act shall be deemed to limit or otherwise affect any present or future valid contract or waiver in respect of the subject matter of subdivision (1) of this section. SEC. 46. (iii) Copyright had not been secured in the United States prior to the effective date of any such adherence as may be made to the Convention for the Protection of Literary and Artistic Works, but in which copyright subsisted under such Convention upon said effective date of adherence; Provided, however, That as to the works specified in the above subdivisions (i), (ii), and (iii) of this subsection (b), no right or remedy given pursuant to this Act shall prejudice past or future acts, uses, or rights in or in connection with, or the continuance of any undertakings or enterprises which were commenced in respect of said works within the United States prior to the effective date of this Act in the case of subdivision (i), the date of the filing or recording of a corrected entry in the Copyright Office in the case of subdivision (ii), and the effective date of adherence in the case of subdivision (iii), and which would otherwise have been lawful within the United States; and the author or other owner of any such right under copyright shall not be entitled to any remedy under this Act for any act or use of the type herein described either before or after such date against any persons who, prior to such date, have taken any action or expended labor, money or any other consideration, or incurred any liability, in connection with any preparation for, creation or exploitation of, or in the acquisition of rights, quitclaims, releases, or clearances affecting such work or any right thereunder, or for any act or use of the type described in section 4 of this Act or for any other act or use made, in a manner which at the time was not unlawful; Provided, further, That no remedies shall be available under this Act for the making for purposes of study or research and not for profit of copies of the works referred to in the above subdivision (iii) of this subsection. Mr. BRYLAWSKI. Mr. Chairman, I was merely reading these historical facts into the record to show what the previous committee had accepted along this line, and what we had recommended. There was a fourth reservation that we wanted: (4) to grant to the nationals of any foreign country any rights in the United States greater than those enjoyed by the citizens of the United States in any such foreign country. Then, it provided: In accordance with article 25, paragraph 3 of the convention, it is further resolved that the date of the entry into effect thereof as respects the United States shall be 1 year after the date of the adoption of this resolution. At that time we were perfectly satisfied to go into the Union with these reservations, if these reservations were acceptable to the other Union countries, in line with similar reservations made for their nationals, and that if we could not go in, we would continue our efforts at the next conference, which was to have been held. Well, nothing happened at that. For more than 150 years, copyright in the United States has been dependent upon registration. Our copyright laws are in effect a contract between the author and the Government of the United States, in which for consideration of the monopoly given to the author for a limited period of years, the author agrees that upon the expiration of that period his work shall be in the public domain. Hence we have machinery to establish with some accuracy the date on which a copyright comes into existence and the date on which the copyright passes out of existence and may be freely used by any citizen of this country, bearing in mind that in the absence of enabling legislation, within the year's time limit proposed, the treaty will become the supreme law of our land, and if, as Dr. McClure has suggested, the treaty is self-executing in its character, then I feel, as does Mr. Kaye, that we will have nothing but chaos and confusion, because so many of the provisions of the treaty are so wholly inconsistent with our own laws on the subject. For example, the term of copyright suggested by the convention is life and 50 years. If this term is not uniformly adopted, then the law of the adhering country shall apply. Our copyright law provides for a term of 28 years, with provision for a renewal during the twentyseventh year, and if there is no renewal the work ceases to be protected. In the case of published works the term starts from the date of publication with notice, but when would the term start in this country as to works which are protected under the treaty? Because they come into existence upon creation, nobody but the author himself knows. when the work was created. There is no public record of that. And would this term-I am now speaking as to the rights of foreign authors-would this term expire at the end of the 28 years, unless renewed? If copyright is to be secured without any formalities in the case of foreign works, then of course there could not be formality for a renewal; as a matter of fact there would be nothing to renew, because there would be no legislation of the original copyright. Are you going to say that a foreign author need not renew, but that an American author must lose his copyright at the end of the twentyeighth year if he fails to renew? The convention seeks to grant copyright on terpsichorean works-dance steps-and, we believe, oral works. Under the Constitution, Congress is given the right to protect the writings of authors for limited periods of time, and while the term "writings" has been rather elastically interpreted, yet I doubt that an author's thoughts, expressed only orally or by the manipulation of his feet in the intricacies of some dance step would be considered as a "writing of an author" as the term is used within the Constitution of the United States. Digressing for just a moment, I want to answer the statement made here on Tuesday, that so far as the witness, who at the time was Dr. McClure, knew, the protection of the convention was being uniformly recognized by the various contracting countries. This is not true. Dr. McClure stated that so far as he knew, except for certain provisions under the alien enemy laws, which neither Germany nor England had as yet applied, the laws of the convention were being recognized. I think there are 41 or 42 nations which are now members of the Bern Convention, and of that group some 25 or 26 are now within the sphere of Axis domination. They include Germany, Italy, and Japannations which have shown no compunction about violating treaties much more solemn in character than the convention of Bern; and I would like to ask the Chairman whether a nation like Germany, which made a funeral pyre of the world's classics, including the Bible and the philosophical broodings of Thomas Mann, which forbids the playing of Mendelssohn's works-would such a nation be apt to pay much attention to a treaty designed to protect the rights of American authors and composers? Germany grants no protection whatsoever to the works of the so-called non-Aryan, and Germany as well as Italy and Japan, through its censorship laws discriminates and harasses authors, whether Aryan or non-Aryan, whose works may conflict with its particular nationalistic brand of thinking. Jews have no legal standing of any character in Germany. Several years ago, and prior to its annihilation, a Polish Jew-Poland being a member of the Bern Convention-sued. He was a sculptor. He sued a German for the use of his work without permission, and he completely proved his case; but the German court held that when a non-Aryan went into court against an Aryan, no matter how strongly the fundamental law favored the rights of the non-Aryan, the current and the dominant German philosophy compelled judgment for the Aryan. Senator THOMAS of Utah. Have you got the case? Mr. BRYLAWSKI. I can furnish it, or send it to you. Senator THOMAS of Utah. One other question. Did the fact of nationality enter into that case, or was it merely the fact of race? Mr. BRYLAWSKI. It was not a question of nationality, because Poland had not then been overrun. Poland was a free and independent state. |