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Senator Thomas of Utah. It was not a case of conflict under international law?
Mr. BRYLAWSKI. The action was brought under the Bern Convention.
Senator THOMAS of Utah. The Pole having rights in front of the German law, as a person?
Mr. BRYLAWSKI. That is correct. The complainant in this case had no rights.
Now, millions of our citizens are under German law considered as non-Aryans, and yet these same people include many of our foremost writers, authors, and artists, whose works may now, and will continue I believe, whether we are in the convention or not, to be treated as public property not only in Germany but in all the Nazi-controlled countries. That this is so and will continue to be so, I am sure requires nothing more than this mere statement, based on what we know has happened in these unfortunate countries. In years past, when we went into countries which were members of the union, conditions were different. Observance of treaties was the rule rather than the exception, and American authors favored ratification of the convention. Now, practically all of the organizations representing authors, producers, and publishers including the Author's League, the American Society of Composers, Authors, and Publishers, the Dramatists Guild, the American Publishers Protective Association, the Motion Picture Producers and Distributors of America, the National Publishers Association, and the National Association of Broadcasters, all oppose adherence to the convention.
Authors and composers oppose ratification now because by doing so we would give rights of a substantial nature to foreign nations which discriminate and will continue to discriminate against American authors and composers.
The convention guarantees formal rights, but the states which are parties to the convention have discretion about affording remedies. And rights without remedies are worthless.
Adherence would open the doors of the United States to a host of foreign music societies, which would have a legal right to demand from the users of their members' works—a great deal of music which is now in the public domain and is without a tax of any kind-license fees from producers, theaters, radio stations, hotels, and various other users of the music for profit. For example, as to radio users, there is a vast body of foreign musical works, some of which is written by the world's greatest composers, but not protected by copyright in the United States, and which may be freely performed and broadcast. Performance of such works is prohibited under the convention, from and after the date when the proposed treaty shall become effective in the United States.
Senator THOMAS of Utah. Before we leave that point, may we revert to the case of the Polish sculptor. Is that a case that is representative, or is it merely a single case?
Mr. BRYLAWSKI. It is my belief that there were three or possibly four similar cases, in which Jews, two of them being Jews in Germany; others were outside of Germany-in which they had gone into German courts to protect the rights to their works; and because they came within the class of so-called non-Aryans, the German courts unanimously held that they had no standing, legally, of any kind or character.
Senator Thomas of Utah. Do you have any case involving two Aryans, to see what the court does in such a case?
Mr. BRYLAWSKI. I imagine there were a great many cases between two Aryans, if the Chairman please, but these cases were thrown out because the plaintiffs were non-Aryans, regardless of the merits of the case, but merely on the ground that non-Aryans had no standing:
Senator THOMAS of Utah. I understand of course the fundamental theory of the Nazi political philosophy, but do you think there have been enough of those cases to stamp the legal system?
Mr. BRYLAWSKI. I think it goes without saying, knowing what has happened to them.
Mr. KAYE. Mr. Chairman, as I understand it, the creation of intellectual property in Germany today depends upon the approval of the cultural ministry, and unless the work is approved by the Bureau of Culture it acquires no standing as a piece of property,
I might also add that according to the 1940 edition of the Bulletin of International Radio Diffusion, published in Geneva, France has passed a law whereby for the period of the emergency it may freely use the works of nationals of any country in broadcasting, and in other uses of national importance, compensation to the foreign national to be dependent upon the pleasure of a French tribunal.
Mr. BRYLAWSKI. Adherence to the convention would give to foreign authors and composers the benefits of automatic copyright here, without any formality, and would render exceedingly difficult the obtaining of comparable rights by American authors, composers, producers, and others. The door would be thrown open to foreigners as against our own citizens.
I wanted also to call the Chair's attention to the discussion had here the other day on the question of Holland, following the decision in the Dutch courts in the Gone With The Wind case, which has been cited consistently as the horrible example of piracy in Holland. The Twentieth Century Fox Film Corporation undertook to bring an action in Holland for infringement of copyright in a photoplay of theirs, called Daddy Longlegs, and thought it would rely upon the belief that we had reciprocal copyright relations with Holland, whereby Holland undertook to grant to American authors the benefit of the copyright laws on substantially the same basis as it grants them to its own citizens, which is a copyright without the establishment of any formalities whatsoever. In the course of that suit, we discovered that in 1926 the Dutch Government had notified the Solicitor of the State Department that the proclamation had been entered into under a misapprehension of the domestic laws of the several countries involved, and therefore Holland regretted-this was back in 1926– that American authors could not enjoy the benefit of protection in Holland, unless they first published their works in Holland. It was I who brought that matter to the attention of the State Department, and the State Department now has apparently for the first time, because it was never able to locate what happened to the copy delivered in 1926—it now has for the first time a copy of the denunciation by Holland of the reciprocal relations between this country and Holland; and I was rather surprised at the query of Dr. McClure to Mr. Kilroe, in which he asked, in answer to Mr. Kilroe's question, as to whether we had similarly denounced our treaty with Holland, “What good would it do him, if we made such a denunciation”?
Well, of course, the answer is simple. It would do none of us any good to denounce our treaty with Holland, but that is against human nature and against natural rights for the United States to continue to grant to Dutch citizens the benefit of our copyright laws, now, as it has known for at least 2 years, and should have known for at least 15 years, that the Dutch Government grants no copyright whatsoever to American citizens, so that the decision of the Dutch courts should not come as a surprise.
On the contrary, this Government had notice as far back as 1926 that the Dutch courts would not recognize American copyright.
In concluding, Mr. Chairman, there is one thought that I want to ask you to give serious consideration to. A vast array of witnessesin fact, authors, dramatists, music writers, composers, publishers, music publishers, motion-picture, and stage producers, magazine publishers, book publishers-in fact, everybody who creates anything subject to copyright, and practically everybody who uses copyright material has consistently come before this committee to oppose the adherence by the United States to the Berne Convention at this time.
The proponents are a few individuals—Dr. Ladas appeared for himself—and the State Department. I wonder if the State Department has been entirely frank with this committee in urging adherence to the convention, because it is a fact that the real pressure which has been brought to bear to secure our adherence comes almost exclusively from England, which has a right to its objections.
In any other country of the world, whether it is Holland, Norway, Sweden, Denmark, France, Italy, Germany, Austria, Yugoslavia, or Greece--any country with whom we have copyright relations, their authors automatically now get copyright in the United States merely by the simple act of printing six little words or less on their books:
Copyright 1941, by John Smith.
Senator THOMAS of Utah. Have we no copyright treaty with England?
Mr. BRYLAWSKI. We have a copyright treaty with England. I am talking about these foreign-language countries.
Senator Thomas of Utah. What is your point, then—that England would want us in?
Mr. BRYLAWSKI. I will come to that, if the chairman please.
Mr. BRYLAWSKI. Following the enactment of our first so-called international copyright law in 1891, there was a requirement for printing and publication in the United States of all foreign books, and then it was realized that very few foreign books were printed in this country, and that requirement was relinquished in the case of every foreignlanguage book, but retained only in the case of books printed abroad in the English language. So that the French author who writes a book secures copyright in the United States without any formalities whatsoever, except the one, if you can in fact call it a formality, of putting a notice on his work, "copyright 1941, by so and so." He has a copyright. He needs to do nothing toward registering that claim of copyright until such time as he desires to bring an action for infringement.
The Supreme Court said so in the Washingtonian case. So those countries are not anxious for us to go into the convention. Why should they be? They have full and complete protection in the United
States of their works. But England is not in that situation. In order to protect American labor and in order to protect American book publishers against the cheaper printing abroad, whether it is in Canada or in England or New Zealand or Australia, we say to the English author:
"You are not in the same position as the German, Swiss, Dutch, or Norwegian author. You can get copyright only by registration. Within 60 days after publication of your book abroad, you must deposit a copy in the Library of Congress, coupled with an application for an ad interim copyright, and if you do that, you have a copyright which endures for 4 months.
"If within that 4-month period an authorized edition of your book shall be printed from type set within the limits of the United States, and all of the formalities as to registration gone through with again--filing copies, application, payment of fee—then your copyright shall be continued for the full term of 28 years.
“If you fail to make your ad interim registration, your book is in the public domain of the United States. If you make your ad interim registration and fail within the 4-month period to print and publish an American edition and go through the formalities of registration, your book is in the public domain of the United States.
England resents such a discrimination, and I believe, with much justification; and it is because of the constant pressure that has been brought to bear upon our State Department through the English Embassy over these years that the State Department has been urging us to adhere to the convention.
Senator Thomas of Utah. Why does she not ask for a provision in the bilateral convention?
Mr. BRYLAWSKI. If there is any stench, we do not have to burn down the house in order to get rid of it.
Senator Thomas of Utah. That is my point-Why does she not ask for a change in the bilateral convention, not in the Bern Convention---the one you say you have between England and the United States?
Mr. BRYLAWSKI. I do not know why the State Department does not do this.
Senator Thomas of Utah. But you are making the point that it is England that is pressing for this?
Mr. BRYLAWSKI. I do.
Senator Thomas of Utah. Why does not England press for a modification of the bilateral convention under which we are operating? Would not that be the logical thing for England to do?
Mr. BRYLAWSKI. I think it would be the logical thing to do, if we had the provisions such as there were in the Shotwell bill, to threaten the English author, and at the same time to protect American labor against the cheap printing abroad, and to protect the American book publisher against cheap printing abroad. We could give to the English authors the benefit of copyright the same as we give to other authors, and yet, either through a provision similar to the Shotwell bill or through the tariff make it impossible for books printed abroad in the English language to be translated and distributed in any quantities in the United States.
Senator Thomas of Utah. Yes. My whole point is your point, speaking of England. Taking up your statement, why revert to an attempt to bring us into the Berne Convention, if by a simple request for a modification of our bilateral copyright convention, between England and the United States, these changs can be made?
Mr. BRYLAWSKI. Mr. Chairman, I do not know why some people use a shotgun to kill a housefly.
Senator THOMAS of Utah. I do not know why they would use a shotgun to kill a housefly, and that is why I am asking. Has England asked for the simpler change?
Mr. BRYLAWSKI. That I do not know. That is a matter with the State Department. But I do know it is a fact that the great pressure which has been brought upon the State Department for this comes from England. Other countries are not interested. They have copyright without anything. England has to go through the formalities of printing and publishing here.
Now, if we can protect England or English authors, and at the same time protect American labor against cheap printing abroad, and to protect American book publishers against the importation of cheaply printed books from abroad, we will accomplish every purpose that we want without getting into a convention now that nobody wants.
Senator Thomas of Utah. And that can be accomplished, if I understand what you said, by modification of the bilateral. treaty between the United States and Great Britain?
Mr. BRYLAWSKI. I should imagine so.
STATEMENT OF SIDNEY LUST, REPRESENTING MOTION PICTURE
THEATER OWNERS OF AMERICA
Senator THOMAS of Utah. Mr. Lust.
Mr. Lust. Senator Thomas, I am here this morning representing Mr. Julian Brylawski, who was called to New York to attend a very important meeting. He asked me to read his message to you. I am a local theater owner here in Washington, on the board of the Motion Picture Theatre Owners of America, and with this statement that I have here, I will try to explain things as we go along, if you have any questions to ask me.
I might say, as a theater owner, that until 2 years ago the producers had a "score charge” which we exhibitors had to pay. A score charge was made for the right to use copyright music, or music controlled by ASCAP, on records or films. The producers charged it to us, because the ASCAP charged it to them. That has been eliminated, but was quite expensive at one time. At the present time we pay ASCAP a seat tax for the use of this music that is used on the film, which, of course, we do not think is fair. We have objected to it right along, and it does not seem to help us any. Of course, as you know, they collect this fee double; not only do they collect it from the theater owners, but they collect it from the producers, where the film is made out in California. We are compelled to use this music because it is part of that film, whether we want to use it or not, so we pay them this copyright fee; and at the same time, if these other fees were added on for these foreign countries, that would be an additional tax, which the theater owners will have to pay. I am just merely bringing that out before I read Mr. Brylawski's statement.