Lapas attēli
PDF
ePub

Mr. MCCLURE. Yes.

Mr. FULTON BRYLAWSKI. So here we have I think 18 of the prinpical South American countries, members of a convention to which the United States is a party, which agree to fully protect American copyrights in those countries without formalities, so I was wondering whether you can explain how these piratical copies which are infringing copies are distributed in these South American countries? Do you mean to say that the authors do not attempt to protect their rights, or do you mean to say that those rights have been denied under this convention?

Mr. MCCLURE. That introduces a rather long story, Mr. Brylawski that I shall be very glad to attempt to answer. In the first place, the Buenos Aires Convention to which you refer, and to which there are 15 or 16 parties, among the American republics, does not, as does the Bern Convention, statedly give copyright without formality. It does reserve at least one formality.

Mr. FULTON BRYLAWSKI. Notice only?

Mr. MCCLURE. Notice only, which is of course an easily complied with formality; but our experience is in dealing with the situation in Latin America that the fact that that is there opens up a considerable field of uncertainty. We do know it is very difficult to get protection under it for our people.

Mr. FULTON BRYLAWSKI. Without taking up the time of the committee and your time, I just want to state, and then I am through, Mr. Chairman, if you will pardon the interruption

Mr. McCLURE. I will.

Mr. FULTON BRYLAWSKI. That I have on a great many occasions. found it necessary to go to the Copyright Office to get a certificate of copyright registration, and have it authenticated by the State Department and legalized by the consul of the country in which it is to be used, and to send it down there.

Mr. MCCLURE. Quite right.

Mr. FULTON BRYLAWSKI. And we have never found any difficulty in restraining infringement as soon as we establish the fact that we do have a copyright in those countries.

Mr. MCCLURE. Yes, you can do that, Mr. Brylawski, and any other American owner of a copyright can do it, likewise, but our experience is very clear to the effect that Americans in general do not do it because it is too expensive to handle. We cannot expect the author whose financial resources are not great to do that.

Mr. FULTON BRYLAWSKI. Why would it be cheaper under the Bern Convention?

Mr. McCLURE. Because the Bern Convention requires definitely there shall be an automatic copyright.

Mr. FULTON BRYLAWSKI. But they would still have to bring the action to protect their remedy?

Mr. MCCLURE. Yes; but they will be very much less likely to have to bring actions for violations of copyright if the law is more certain as to what their copyrights are.

Mr. FULTON BRYLAWSKI. I think the section of article 3 is as definite as anything can possibly be.

I am through.

Mr. MCCLURE. Mr. Brylawski, you know perfectly well that our own courts have gotten mixed up on this Buenos Aires Convention in

the Portuondo case, and if that is true in the courts here in trying to deal with the uncertainties of this convention, we will hardly expect that all the South American courts have been able to interpret it just as you and I would like.

Mr. FULTON BRYLAWSKI. We are taking too much time.

Mr. MCCLURE. Now, we would like to have a court define more clearly some questions of international law, such as the Bern Convention furnishes. We would like to see that adopted by the American republics generally.

Senator THOMAS of Utah. Mr. Kilroe, you had a statement?

Mr. KILROE. Mr. Chairman, I would like to present this statement and have it made part of the record. Part of it has been covered by the discussion had with the witness.

Senator THOMAS of Utah. It will be included in the record.

(The statement submitted for the record by Edwin P. Kilroe is as follows:)

STATEMENT OF EDWIN P. KILROE BEFORE THE SUBCOMMITTEE OF THE COMMIT-
TEE ON FOREIGN RELATIONS, UNITED STATES SENATE, APRIL 14, 1941
Mr. KILROE. Mr. Chairman, my name is Edwin P. Kilroe; my address is 444
West 56th Street, New York City. I am the copyright adviser to Twentieth
Century-Fox Film Corporation and Movietonews, Inc., the producer and distribu-
tor of Fox Movietone News. I am also chairman of the copyright committee of
the Hays organization-Motion Picture Producers & Distributors of America,
Inc.

The position of the motion-picture industry of the United States on the adherence of the United States to the Berne Convention in its present form has often been stated before the legislative committees of Congress. The position was stated on:

(1) May 29, 1934 before a subcommittee of this committee (Committee on Foreign Relations, U. S. Senate) before Senator Duffy, chairman (see hearings before the Committee on Foreign Relations, U. S. Senate, on S. 1928-A bill to enable the United States to enter the International Copyright Union, May 28-29, 1934, pt. II, pp. 68-77) and

(2) ‘April 13, 1936 before the Patents Committee of the House of Representatives (see hearings before the Committee on Patents, House of Representatives, April 13, 14, 15, 1936, p. 1026) and

(3) Before Senator Duffy's committee on April 12, 1937 (see International Convention of the Copyright Union-hearings before a subcommittee of the Committee on Foreign Relations, U. S. Senate, April 12-13, 1937, pp. 1-27, 47–50). To the objections made in the past to our adherence to the Bern Convention, there is the added objection of adhering to the Bern Convention at a time when the world, with the exception of the Western Hemisphere, is swept with war, destruction, and hatred. It is too fantastic to give any serious thought to the adherence of the United States to the Bern Convention at this time. If we enter now, for all practical purposes, we will have as dominating partners in the adherence Hitler and Japan. England now engaged in a death struggle for her lifea struggle in which she may not survive can give little time and attention to the affairs of the Bern Convention and the proper administration of its tenets. With Japan and Hitler in control of the convention, American authors cannot hope for any protection in countries controlled by Hitler and his superscoundrels.

I

The United States should not enter the Bern Convention until our domestic copyright laws are changed to meet the new conditions which will be brought about by adherence. If we adhere to the Bern Convention, the adherence would supersede our present Copyright Act or any other act of Congress which might be in conflict with the terms of the Bern Convention.

Article VI of the Constitution of the United States provides:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the

judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."

The Bern Convention is a treaty which contains stipulations that are selfexecuting and upon adherence by the United States, the provisions of the treaty have the force and effect of an enactment by Congress superseding all prior legislation which might be in conflict with any of its terms. (See opinion of United States Attorney General Caleb Cushing, February 16, 1854.)

This would create the utmost confusion and chaos in the field of copyright. Present copyright proprietors would not know the effect the adherence had upon their rights until after long and expensive litigation had been concluded.

The treaty of Buenos Aires was signed on August 11, 1910, ratified by the United States Senate, February 15, 1911, and proclaimed by the President of the United States on July 13, 1914. This convention contains two important articles, as follows:

"ARTICLE 3. The acknowledgment of a copyright obtained in one state, in conformity with its laws, shall produce its effects of full right in all the other states without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right.

"ARTICLE 6. The authors or their assigns, citizens, or domiciled foreigners, shall enjoy in the signatory countries the rights that the respective laws accord, without those rights being allowed to exceed the term of protection granted in the country of origin.

"For works comprising several volumes that are not published simultaneously, as well as for bulletins, or parts, or periodical publications, the term of the copyright will commence to run, with respect to each volume, bulletin, part, or periodical publication, from the respective date of its publication."

The President of the United States in his proclamation of July 13, 1914, repeated the convention verbatim and added:

"Now, therefore, be it known that I, Woodrow Wilson, President of the United States of America, have caused the said Convention to be made public to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof."

Notwithstanding this proclamation, the United States District Court for the Southern District of New York on May 13, 1937, denied protection to a musical work written by a citizen of the Dominican Republic (Portuondo v. Columbia Phonograph Company, Inc., et al., 36 United States Patents Quarterly 104) on the ground that a Presidential proclamation had not been issued pursuant to our copyright law concerning mechanically recorded music. The Federal judge based his decision on an opinion rendered by the Attorney General that under the American copyright law "there must be a separate proclamation of the existence of reciprocal conditions as to mechanical reproduction." The opinion_of_the Attorney General in question was rendered on May 6, 1911, by J. A. Fowler, Assistant Attorney General under Attorney General George W. Wickersham (29 Opinions of the Attorney General, p. 64). It is apparent that the Federal Judge was misled by the opinion of the Assistant Attorney General; the opinion had no bearing whatever on the convention and related entirely to the provisions of the Copyright Act. The President of the United States had on July 13, 1914, issued a proclamation stating that the provisions of the Buenos Aires Convention were in full force in the United States.

It is quite clear that the plaintiff was denied protection on a right that was clearly his under the convention; nevertheless, the State Department has not taken a single step to correct this injustice. No recommendation has been made to Congress by the State Department to remedy this defect. It is fair to say that no one can tell with any degree of precision the rights in the United States of the authors of the countries that are signatory to this treaty.

This case is cited as an example of the confusion, chaos and injustice that may arise if the United States adheres to the Bern Convention before its own laws are changed. I should like to have incorporated in the record and marked exhibit A the pleadings and decisions in this litigation.

The immediate adherence of the United States to the Bern Convention without reservations would take numerous copyrighted works out of the public domain and throw them in the private domain. This will be disastrous to those who have expended large sums of money on public domain works. Some provision should be made in our local laws to give protection to our citizens that may find themselves in this unfortunate position.

The Duffy bill (S. 3047) introduced on June 14, 1935, contained the following reservation:

"8 (c). Authors within the jurisdiction of any foreign country that is now or may hereafter be a party to the Convention for the Protection of Literary and Artistic Works, whether their works are unpublished or published for the first time in one of the countries parties to said convention, shall have all the rights now accorded or which may hereafter be accorded by law to nationals of the United States; and the enjoyment and the exercise of such rights shall not be subject to any formality: Provided, That as to copyrights in works not previously copyrighted in the United States no right or remedy given pursuant to this Act shall prejudice lawful acts done or rights in or in connection with copies lawfully made, the making of additional copies or any other continuance of business undertakings or enterprises lawfully undertaken within the United States prior to the date on which the adherence of the United States to said Convention for the Protection of Literary and Artistic Works becomes effective; and the author or other owner of such copyright or persons claiming under him shall not be entitled to any remedy against any person who has, prior to such date, taken any action in connection with the exploitation, production, reproduction, circulation, or performance (in a manner which at the time was not unlawful) of any such work whereby he has incurred expenditure or liability; nor shall rights in respect of the further use of copies or other forms of reproduction be in any manner impaired."

Our adherence to the Bern Convention should be delayed until a new Bern Convention is drafted. Under the terms of the Rome Convention of 1928, a conference was to be held in Brussels in 1935 for the purpose of revising the convention. This was delayed until 1936 and again to 1937 in order to give the proper appraisal to a universal convention which would supersede the Bern. Convention. The universal convention would include the underlying principles of the followng conventions:

(1) Bern Convention, Berlin 1908, Rome, 1928.
(2) Convention of Montevideo, June 11, 1889.
(3) Convention of Mexico City, June 27, 1902.
(4) Convention of Rio de Janeiro, August 23, 1906.
(5) Convention of Washington, December 20, 1907.
(6) Convention of Buenos Aires, August 11, 1910.
(7) Convention of Caracas, July 17, 1911.
(8) Convention of Havana, 1928.

The second World War has interrupted this work and there is little or no prospect of a conference being held within the next few years.

cally in existence now four conventions:

There are practi

(1) Convention of 1886-certain of the countries joined with reservations. (2) Revision at Paris in 1896-reservations were added.

(3) Revision at Berlin in 1908-reservations added.

(4) Rome Convention in 1928-reservations of three prior conventions might be carried by the signatory countries into the Rome Convencion.

(5) At the proposed conference, if and when held, still a fifth convention might be created.

Some of the countries are bound by the convention of 1886, others by the convention of 1896, others by the convention of 1908 and others by the convention of 1928. If the United States adheres at this time, it would be bound by the rules of the Rome Convention of 1928 and would not have the advantages of the reservations made by the other members prior to the Rome Convention.

There is now pending before the Brussels conference whenever it may be held some startling recommendations so far as the motion picture industry is concerned. These are:

(1) Oral copyright.

(2) Authorship of a film.

(3) Copyright of the rendition and interpretation of performing artists.

(4) Right of privacy in voice for mechanical reproduction.

(5) Right of privacy in likeness and in voice for television.

(6) Right to regulate prices for use of music in case of monopoly.

(7) Right of pursuit by authors.

(8) Copyright in the title as part of the work.

The moral rights of authors has been fully discussed at the hearings had on the Duffy copyright bill in previous years. However, there is a tendency now to extend the moral rights clause far beyond its present limitations. It is intended to have the moral-rights clause apply not only to the living authors but also to the dead authors and to works in the public domain.

The doctrine of the moral rights of authors had its origin in France; traces of it may be found in the discussions and writings relating to copyright legislation passed in France in 1791 and 1793, while France was in the throes of the French Revolution. The doctrine was revived some 50 years ago, and since that time has been actively discussed in various countries of continental Europe.

An unsuccessful attempt was made to incorporate the doctrine in a modified form at the Berlin Convention of 1908, and while the doctrine had its origin in France, Italy led the fight for the recognition of the doctrine in the convention at Rome in 1928, where the doctrine was introduced in the following form:

"ARTICLE 6 BIS

"(1) Independently of the author's copyright, and even after transfer of the said copyright, the author shall have the right to claim authorship of the work, as well as the right to object to any distortion, mutilation, or other modification of the said work which would be prejudicial to his honor or reputation.

II

"(2) The determination of the conditions under which these rights shall be exercised is reserved for the national legislation of the countries of the Union. The means of redress for safeguarding these rights shall be regulated by the legislation of the co intry where protection is claimed."

It is to be noted that while the doctrine is described in paragraph (1) of article 6 bis of the Rome Convention, nevertheless, it is left to the local laws of each country to enforce this doctrine.

Its inclusion in the convention was the result of a compromise; its effect on the exploitation of copyrighted material was not fully appreciated at that time. The feeling is general now that the doctrine has been carried too far and that it has no place in a copyright convention; in fact, the Incorporated Society of Authors, Playwrights, and Composers of England feels that the paragraph relating to moral rights should be entirely removed from the Bern Convention. On the other hand, France and Italy believe that the principle should be recognized by incorporating it into the conventions with modifications.

We believe it is the consensus of opinion now in Europe that there should be a working arrangement between the creators of copyrighted material on the one hand and commerce and industry on the other, so that copyrighted works may be exploited without undue hindrance. It is now conceded that an author or composer should be permitted to bargain away his moral rights and once he accepts a consideration for this bargain and enters into an arrangement he should be held to this bargain in all countries of the convention, and if requested by the United States as a condition of adherence to the convention, this modification will be incorporated into the convention.

Under the present convention the moral rights of the author are inalienable; he may enforce these rights after he has made an assignment of them for a valuable consideration.

The right to make changes in an author's work is of the utmost importance to the motion-picture industry. A dramatic play or story is usually written with an appeal to a particular class. A motion picture is intended to have entertainment value for the great masses and its financial success depends upon its mass psychology entertainment value; the wider the appeal the greater its value. A limitation on the right to change the plot, theme, sequence, and description of the characters in literary works would bring havoc to the film industry.

The principle of moral rights was dealt with in the Duffy copyright bill as follows:

"Independently of the copyright in any work secured under this act, as amended, and even after assignment thereof, the author retains the right to claim the authorship of the 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: Provided, however, That nothing in this paragraph shall 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.

« iepriekšējāTurpināt »