The bill also makes provision for the extension of subsisting copyrights to agree with the term provided in the present bill where the author is living or his widow or a child, provided the publisher or other assignee joins in the application for such extension. (See section 19 of the draft.)

The right of dramatization or translation must be exercised within ten years or it will lapse.

Protection of copyright.-The present statute (Rev. Stat., sec. 4965) attempts to define acts which shall constitute infringements. The bill, having defined the exclusive rights which the copyright has secured to the author, defines (sec. 23) infringement as "doing or causing to be done" without his consent "any act the exclusive right to do or authorize which" is "reserved" to him. It contains, however (sec. 22), the one specification that "any reproduction without his consent "of any work or any material part of any work" in which copyright is subsisting, shall be illegal and is prohibited.

The civil remedies open to him (sec. 23) are the injunction and an action for damages and profits, or, in lieu of actual damages and profits, "such damages as to the court shall appear just, to be assessed" upon the basis of so much per copy or infringing act, but to be not less than a total minimum of $250 and maximum of $5,000. And the infringing copies are to include all copies made by the defendant, and not merely those "found in his possession" or 'sold or exposed for sale." A provision for the impounding and destruction of infringing copies and means for producing them.

66

Protection provided for [sec. 21] against publication or reproduction of any unpublished copyrightable work.

A willful infringement for profit, now a misdemeanor in the case of such a performance or representation of dramatic or musical compositions, is made a misdemeanor in all cases, as is also the insertion of a false notice of a copyright or the removal of a true one. [Sec. 22.]

Importations [secs. 26-29].-Detailed provision for the treatment of copies supposed to be infringing or otherwise prohibited. Exceptions to prohibition modified as below under memorandum "B."

Suits [secs. 32, etc.]-Actions may be instituted "in the district of which the defendant is an inhabitant, or in a district where the violation of any provision of the act has occurred."

Limitation of actions to be three years instead of two and to apply to all actions under the act. [Sec. 34.]

Transfers [secs. 37-45].-Definitions of the copyright as distinct from the property in the material object and of the copyrights in derivative works as distinct among themselves.

The copyright office. -Sections 46 to 60 provide specifically for the administration of this.

Catalogue of title entries.-Detailed provision is made for the continuance of the printing of the catalogue on the allotment for printing of the Library of Congress (see secs. 55 and 56 of the draft); and the catalogue is to be made prima facie evidence of deposit and registration.

Provision is made for the reprinting of the indexes and catalogues in classes at stated intervals, with authority to destroy the manuscript cards included in such printed volumes. The current catalogues to be distributed from the copyright office, and sold at a price fixed by the register; the subscriptions to be received by the superintendent of public documents.

Following the provisions for the indexing and cataloguing of the articles deposited, provisions are made, in sections 57, 58, and 59 of the draft for the public inspection of the copyright office record books and deposits; for the permanent use of such deposited articles; for their transfer to other Government libraries where unnecessary to the Library of Congress; and for the disposal of accumulations of useless articles. Section 60 provides for fees. A uniform fee of $1 for registration; but this is to include the certificate which is to be furnished in all cases [a separate charge is now made for it]. And the certificate is given a new importance as prima facie evidence of the facts which it sets forth, including deposit and registration, thus exempting the complainant in an action from other affirmative proof of compliance with these formalities.

A single fee for certain registrations heretofore requiring multiple fees.

B.-Provisions of existing law which are omitted from the bill.

The existing law is set forth in the twenty-odd pages of "Copyright Office Bulletin No. 1." It consists of Article I, section 8, of the Constitution, sections 4948 to 4970, inclusive, of the Revised Statutes, and twelve later acts in amendment thereof. The

substantial provisions of these which are intentionally abrogated are the following [references are to pages of the Bulletin, copy herewith]:

[Section 4950, page 6.-Omitted in the bill, but exists still as part of the act of February 19, 1897.]

Section 4952, page 64.-Ad interim copyright. The requirement for notice (of date of publication and reservation of copyright) on the foreign edition is abolished. Section 4952, page 7.-Labels and prints relating to articles of manufacture no longer to be registered in the Patent Office, but in the copyright office, with corresponding reduction of fee.

Section 4954, page 7.-Renewal term abolished.

Section 4956, page 8.-Requirement that the deposit of copies shall be "on or before the date of publication" is abolished, and a margin of thirty days is allowed, with provisions for making good omissions within a year.

The

The deposit (registration) is no longer to be the act entitling to a copyright. copyright is to be "secured" by "the publication of the work with the notice of copyright affixed," and dates from such publication. Registration with deposit remains compulsory, and after the expiration of the thirty days no action for infringement can be brought until it has been made; but it is no longer expressed as a formality the failure to comply with which is to avoid the copyright.

Section 4956, page 8.-Preliminary deposit of title or description abolished. "Photographs" omitted from the "manufacturing clause.” [“Chromos” also, in terms, but assumed to be covered by “lithographs."]

Section 4956, page 9.-Importation by individuals of the foreign edition (two copies at any one time) is abolished except with the assent of the American copyright proprietor, and the two copies at a time are throughout reduced to one. The privilege of societies and institutions (under the act of October 1, 1890) is no longer to include the importation, without such assent, of "a foreign reprint of a book by an American author copyrighted in the United States unless copies of the American edition can not be supplied by the American publisher or copyright proprietor;" and the society or institution must be incorporated, unless it be a "college, academy, school, or seminary of learning or a "State school, college, university, or free public library.

Section 4957, page 9.-The particular language of the entry in the record books of the copyright office is no longer specified.

Section 4959, page 11.-Deposit of "subsequent editions" not required unless the "changes" which they contain are "substantial" enough to induce a new registration. Section 4960, page 12.-Provisions of act of March 1, 1893, dropped as no longer effective.

Section 4962, page 13.-Notice.-The date and the word "by" no longer required in the notice. The abbreviation "Copr.," and in certain cases the letter C within a circle, permissible instead of the full word "Copyright.”

Sections 4963, page 13; 4964, page 14; 4965, page 15; 4966, page 16.—Penalties imposed for acts in the nature of misdemeanors no longer to be shared by the United States with "a person" suing for them; sums recovered by way of compensation to the copyright proprietor not to be shared by him with the United States. All infringements willful and for profit made misdemeanors, and the remedies provided by sections 4965 and 4966, including the specifications of a definite sum for each infringing copy, etc., and a minimum and maximum total are expressed definitely as compensation to the copyright proprietor rather than penalties.

Section 4964, page 14.-Witnesses not to be required for the written consent of the copyright proprietor.

Act of March 3, 1891, page 18.-Only one fee to be required in case of several volumes, or numbers or (in certain cases) parts of a series deposited at the same time with a view to a single registration.

Act of January 7, 1904, page 19.-Omitted as obsolete.

I have particularly noted in this memorandum the points in which the bill intentionally abrogates existing law and the more significant respects in which it modifies or amplifies it. The respects in which it intentionally abrogates existing law are very few, as shown in Part B of the memorandum. The phraseology of existing law is only here and there recognizable in the bill. That is because the bill attempts to be systematic and organic, and, second, because it has sought general terms, wherever descriptive, rather than particular specifications. Especially has it preferred this where the specifications might be limiting. This, as I have noted in the memorandum

submitted to you, is particularly illustrated by the treatment of the "subject-matter." The bill contains only the general statement that the subject-matter is to include "all the works of an author," leaving the term "author" to be as broad as the Constitution intended; and, as you know, the courts have followed Congress in construing it to include the originator in the broadest sense, just as they have held writings," as used in the Constitution, to include not merely literary but artistic productions.

66

After this general statement certain specifications follow in the bill of particular classes under which a particular application is to be made in the office, but these specifications are coupled with the proviso that they shall not be held to limit the subject-matter. The specifications so far as possible also substitute general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statues and statuary." They assume, however, that all of these articles will be included under the more general terms, as "prints and pictorial illustrations" or "reproductions of a work of art" or 66 works of art" or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts" in the present statute with the idea that there is subject-matter (for instance, of applied design, not yet within the province of design patents), which may properly be entitled to protection under the copyright law.

The attempt to substitute general terms for particulars is evidenced also in the definition of the right, and of the acts which constitute an infringement of the right. The present statute (sec. 4952) defines the right to consist in the sole liberty to do certain things. The bill (sec. 1) defines the right to be the sole and exclusive right to do certain things, and it specifies those things; but its specifications are in terms very different from those in the present statute.

The present statute (secs. 4965 and 4966) specifies certain acts which are to be deemed an infringement. The bill, having defined the right of the copyright proprietor as the exclusive right to do certain things, defines an infringement to consist in the doing or causing to be done without his consent of any of those things, the right to do or authorize which is exclusively reserved to him. It contents itself with this, adding only the one specification that "any reproduction," without his consent, "of any work or material part of any work in which [his] copyright is subsisting," shall be an infringement.

66

So as to the person who may obtain copyright: The present statute mentions the author, inventor, designer, or proprietor," and elsewhere the "originator." "" The bill rests with the term used in the Constitution, "author," adding only "proprietor," which is not merely in the existing statutes, but has been construed in a series of judicial decisions.

Copyright consists of the exclusive right within a defined period to do certain things with certain subject-matter and to prevent other people from doing these things. The fundamental provisions of the copyright law are therefore these four:

What is the subject-matter?

What are the acts?

How may the exclusive right to do them be secured?

And who may secure it?

Upon the third point, "How may the right be secured?" the bill modifies substantially the existing requirements of law. These make deposit and registration in the copyright office a condition precedent. They require the deposit to be at least coincident with the publication, and they stipulate that failure to comply precisely with this requirement shall avoid the copyright ab initio.

The bill, in section 9, initiates the copyright from the date of the publication of the work, with the notice of copyright affixed. So, in effect, does the present law initiate the copyright from that date, provided the deposit and registration be effected then; but by the bill the publication with notice not merely initiates the copyright, it "secures” it. That is the expression used in the bill.

Deposit and registration in the copyright office are still requisite, but a reasonable period after publication is allowed for them. The period is thirty days, and in the case of error or omission may be even an entire year, but with the proviso that after the thirty days no action for infringement may be brought until these requirements have been complied with. The right is to be exclusive for a limited period. This period is now twenty-eight years, with a possible renewal for fourteen years-a maximum, therefore, of forty-two years. The bill abolishes renewals and provides for three terms, according to the subject-matter. The shortest is twenty-eight years for labels and prints relating to articles of manufacture heretofore registered in the Patent Office, but which the bill proposes to be taken over into the copyright office. The second term, fifty years, is substantially identical with the present possible maximum of forty-two. It applies to some original and to all derivative works. It would probably cover the majority of copyright entries during any particular period-the majority in number, I do not say in importance. The longer term-the life of the author and fifty years after his death-applies only to original works, but applies to most of those.

As to the merit of these terms, Mr. Chairman, and their necessity you will hear discussion. I merely call your attention to them with, however, these suggestions, which I feel in duty bound to communicate, because they have been so insistently urged upon us:

First, that the present term, a maximum of forty-two years (and that a conditional maximum), does not insure to the author his copyright even throughout his own life, and it makes no certain provision for his immediate family after his death. These are admittedly grave defects, and they are perhaps not met by the fact-it is a fact that at present the privilege of renewal is taken advantage of by only a small percentage of the authors or their families.

The second is, that a term as long as life and fifty years exists in fifteen countries, including France; that England, with the minimum term of life and seven years proposes a term of life and thirty years, and that Germany, with a term of life and thirty years, is discussinginformally thus far, but is discussing a term of life and fifty years.

The third suggestion is that a common disposition to question a long term for copyright, on the ground that a short term suffices for patents, is based upon false analogy. Literary and artistic productions and useful inventions may be equally the creations of the mind, and they are coupled in the Constitution; but they are coupled, it is pointed out, only as deserving protection. Their character, and the

duration of the protection required by each, may be very different. It is alleged to be very different. The monopoly is different; the returns to the creator are different, and the interests of the public are different in the two cases. The monopoly by patent in an invention is a complete monopoly of the idea. The monopoly by copyright in a literary or artistic work is a monopoly merely of the particular expression of the idea. The inventor's exclusive control of his idea, it is said, may bar innumerable other inventions, applications of his idea, of importance to the public, while the author's or artist's exclusive control of his particular expression bars no one except the mere reproducer. The returns to an inventor are apt to be quick; the returns to an author are apt to be slow, and the slower in proportion to the serious character of his book, if a book. The returns to a successful inventor are apt to be large; the returns to even a successful author or artist are not apt to be more than moderate.

Then the idea, it is said, covered by an invention or discovery, may concern the essential welfare, even the lives, of the community, and should be freely available at the earliest possible moment not unjust to the creator of it. Now, it is remarked that no particular book, at least none currently copyrighted to-day, can be said to be essential to the welfare or protection of the community. Many a man's pleasure may be enhanced by it, some men's profit; but no man's essential welfare depends upon it, and no man's life, save, perhaps, the author's

• own.

I communicate those suggestions as having been pressed upon us. In no respect are the present statutes alleged to be less satisfactory than in their provisions for the protection of the right, and redress to the copyright proprietor for invasion of it. One inconvenience is that they provide a different class of remedies and recoveries for different subject-matter; another is that they seem to confuse the duty of the Government to punish a deliberate infringement as it would punish any other theft with the right of the copyright proprietor for compensation for his particular losses. The bill attempts to provide uniform remedies, and it divorces the civil action from the criminal. As the memorandum states it, "Penalties imposed for acts in the nature of misdemeanors are no longer to be shared by the United States with a person suing for them;" nor "are sums recovered by way of compensation to the copyright proprietor to be shared by him with the United States." Nor is his right to recover such sums to be imperiled by the necessity of proving that the defendant has committed an offense against the community as well as profited at his expense.

The deliberate theft of a dramatic or musical composition by the willful performance of it for profit, without the assent of the owner, author, or copyright proprietor, is now by law a misdemeanor. The conference could not see why this provision should not apply to any infringement which is both willful and for profit, and section 25 of the bill extends it to all such.

The existing provision (sec. 4966, Rev. Stat.) which provides remedies and penalties for infringement of dramatic and musical copyrights, is of great moment to the dramatists and composers; and now that it is merged in the general provisions of this and other sections of the bill they are in great apprehension lest it may suffer accident, if accident befall these. To guard against this the general repealing