STATEMENT OF FRANK H. SCOTT, ESQ., PRESIDENT OF THE CENTURY COMPANY, NEW YORK, AND PRESIDENT OF THE AMERICAN PUBLISHERS' ASSOCIATION.

Mr. SCOTT. Mr. Chairman, I only wish to clear up two points that have been raised by my predecessor. I am not responsible for the exact wording of the clauses covering these two points, but I do wish to emphasize their importance.

The first is as to the question of the original publisher's rights at the termination of the present contract or the present copyright. Under the law as it now stands, at the termination of the copyright the publisher would have a set of plates and possibly a large number of books on hand. He can enter the market, no matter who comes into the field, and compete on at least equal conditions.

Under the bill as it is proposed now, if the author secures a continuation or a renewal of his copyright, and the publisher is not consulted the publisher would be left with his set of plates and his investment in the sheets and stock; and it would be absolutely impossible for him to sell them to anybody, because his contract having expired, and the author may have gone and made a new contract with a new publisher, leaving him entirely out of it. If there is no copyright whatever he can compete on equal terms.

I am only explaining why I think the publisher ought to have some consideration under those circumstances.

Mr. CURRIER. What do you say to the amendment suggested by the gentleman who last spoke?

Mr. SCOTT. Just what was that amendment?

Mr. CURRIER. That the publisher might have the right to control the extended term, provided he would pay the same royalty that he had paid.

Mr. SCOTT. I think the publisher ought to be obliged to pay the same royalty that anyone else should pay at that time. It might be a very old work. It might be that the time during which he could continue to pay that royalty had expired.

Mr. CURRIER. You could hardly set the right up at auction, could you?

Mr. SCOTT. I am sorry to say it is very often done.

Mr. CHANEY. Would you not think that would give the publisher an undue advantage over the author?

Mr. SCOTT. I think the law as it is at present framed is very broad. I only wish to say now that I think the publisher ought to be consulted. I suppose this will come up later, and I have not prepared any argument on the subject. I am only pleading that the publisher ought to have some consideration under those circumstances.

Mr. CHANEY. Can not the publisher provide against all that by the contract he makes?

Mr. SCOTT. There will be no trouble about the copyrights taken out after the passage of this bill. It is only with reference to copyrights that are now in existence.

Mr. CHANEY. Yes.

Mr. BONYNGE. You think the language of the bill as it is is too broad?

Mr. SCOTT. I think so. I think I should not have made it, myself, quite so broad.

The other point I wish to make is with reference to the publication of the American copyright notice in editions of an American copyright work which are published abroad. What the gentleman has said might be very true if the matter were always within the control of the publisher of the American edition, but, as you will readily see, it is not always within his control. These books are very often written by a foreign author. The contracts of the foreign author, for instance, in the case of English novels, are made with his own publisher in London. They have their own arrangement between themselves as to what notice shall be put in the book. The American publisher is forced to place in his own books published in this country the American copyright notice, but he has no control as to what notice shall be placed upon books published in Germany, or in France, or in Spain, or in Russia, or in England. It is entirely beyond his control.

Mr. CHANEY. Would you think the terms of this bill, then, are right?

Mr. SCOTT. I should say the terms of this bill are right. It seems to me it is perfectly possible for anyone desiring to reprint a book in the United States to ascertain whether or not it is copyrighted. Indeed, the general facts about any book which is so important that anyone wishes to reprint it are notorious. It is known or it can be easily ascertained whether the book is published in the United States and whether it is copyrighted in the United States or not. And I do not think that anyone should be able to get hold of a single copy, whether printed abroad or printed in the United States, that does not happen to have the copyright notice, and be permitted to go ahead and reprint the book ad libitum. I think the rights of the owner would not be sufficiently protected if that were permitted.

Mr. McGAVIN. What do you say about the case of the gentleman who just preceded you the lawsuit into which he got himself?

Mr. Scorт. That has been determined in the courts; it is not for me to say. One judge decided that he was right, and the judge to whom the case was appealed decided that he was wrong.

Mr. McGAVIN. He seems to have made all the necessary effort to find out whether there was a copyright or not.

Mr. SCOTT. That book, as I happen to know, was an edition of one of the dictionaries, otherwise known as Webster's Dictionary. I think it was perfectly easy for him to find out whether that book was copyrighted in the United States or not. It is not for me to say whether there was any technical omission which endangered the copyright under the language of the present statute; but it does seem to me that in books generally published outside of the realm of the United States, and beyond the jurisdiction of the United States, it should not be necessary for the American publisher, who owns the copyright or who represents the owner of the copyright, to go abroad and undertake to make arrangements of this kind. It might be very difficult for him to make arrangements for the publication of the American copyright notice on foreign editions which he does not print himself and which he does not arrange to control.

Mr. CHANEY. Mr. Chairman, I want to make a suggestion about the form of expression of that clause on page 12. You will notice that in the last line of that second paragraph of section 15 the word "undertaking" is used. I do not know whether people generally understand the use of that word "undertaking" as lawyers in my part of the

country do, but I would prefer the word "action" rather than "undertaking," because "undertaking" usually refers to a bond of some kind. "Action, ," it seems to me, is the proper word.

Mr. PUTNAM. That is page 12, line 18, is it not, Mr Chaney?

Mr. CHANEY. Yes. The word "undertaking," you know, is used by lawyers generally in the sense of a bond or some agreement to stand good for the default of another, whereas "action" is the name of the suit.

Mr. PUTNAM. This was not intended to apply to a legal action.
Mr. CHANEY. But is it not in the same nature?

Mr. PUTNAM. No; it was simply meant to apply to the beginning of some enterprise, the beginning to prepare to manufacture. It is a business undertaking, not a legal one.

Mr. CHANEY. I misunderstood it, then.

Mr. BONYNGE. That is what I understood it to be-an enterprise. Mr. CURRIER. You might let the two words go out, so it would read, "who, after notification of the copyright, begins to infringe it." Then it would be a question of fact.

Mr. PUTNAM. Mr. Chairman, you have asked me to announce that it will be the desire of the committee to have the names and addresses of all those present at these hearings, and the relations in which, if they desire to express it, they are here, whether in favor of or in opposition to the bill. We have provided a register at the door in which those names can be noted. I understand that it is desired that that shall extend to all those present.

The CHAIRMAN. All present, and in such form that it may be placed in the record that we are making.

Mr. CHANEY. You mean also to include, I suppose, a brief expression from these people as to their objections, and to what their objections related?

Mr. PUTNAM. Yes. The register will be supplemented by their communications, I suppose the register itself, including their names.

Mr. Horace Pettit, Mr. Chairman, who spoke yesterday, desires to supplement his remarks with an additional suggestion or two, which he has put in writing, and asks simply to have entered in the record, with your permission.

Doctor Lewandowski, present here, asks me to submit a request in writing from a firm of music publishers in New York, that he submit to you a communication in aid of the provisions for the protection of music publishers against reproduction by mechanical devices. He submits that in writing, with the request that it may be entered on the record.

(The various papers above mentioned will be found at the end of this statement of Mr. Putnam.)

Mr. PUTNAM. The copyright office, Mr. Chairman, is now in receipt, naturally, since the bill has been introduced, of some suggestions from those who have participated in the conferences, and since the bill has been introduced and is in the custody of your committee it would seem that those belong to the files of your committee. If you will permit me, I will submit these, without reading them, to be entered in the record.

The CHAIRMAN. Do you think they ought to be printed in the record of the meeting?

Mr. PUTNAM. I do, Mr. Chairman. I do not refer to mere formal communications, or those that may be disposed of absolutely by the copyright office. I do not mean all communications that come to us with reference to the bill. These are simply four communications, from four participants in the conference. One of them, Mr. A. W. Elson, makes certain definite proposals for amendments, including one to section 13 which would extend the manufacturing clause. He has sent a copy of this to you, Mr. Chairman, and I assume that it will go in the record, with the request for a hearing.

The second is from Mr. Edmund C. Stedman, who was a participant, but is in ill-health, and can not be here; but it contains an expression upon the bill that I think should go in the record.

Another is from Mr. Leo Feist, also a participant, and contains an expression about the bill that he would have made here orally if present. I think that should go in.

Another is from Mr. Ansley Wilcox, who represented certain lithographic interests very much concerned with the protection of such prints as posters, and very much concerned, therefore, in the specifications of subject-matter. He writes a communication which I think should go into the record, expressing his content with the specifications of sections 4 and 5.

The CHAIRMAN. Those will be printed in the record.

(The above-mentioned papers will also be found at the end of this statement of Mr. Putnam.)

Mr. PUTNAM. I have information, Mr. Chairman, that when the matter of the reproduction of music by mechanical devices comes up for discussion, Mr. John J. O'Connell, an attorney of New York, would like to be heard, representing ten manufacturers of automatic piano players in New York City, and desiring to be heard only in opposition to those portions of the bill respecting musical copyrights, and that in connection with the same general subject-matter Mr. Howlett Davis, an inventor of material that enters into these devices, desires an opportunity to make some opening remarks, pointing out how the proposed bill will, if enacted, act in restraint of invention, and show how it encroaches upon the existing patent laws.

If it is your pleasure, now, Mr. Chairman, I would suggest that it would be helpful to have an expression from the librarians dissenting from the assent of the American Library Association with regard to the importation clause, while Colonel Olin's remarks are fresh in mind, and if that is your pleasure, I think it is only fair that I should make clear the status of that provision.

The list of participants in the conference included two associations that might be interested or were certain to be interested in these importation provisions. One was the National Educational Association and the other the American Library Association. These importation clauses concededly contain a restriction, a limitation, a diminution of existing privileges of importations enjoyed by individuals and enjoyed by certain institutions.

The National Educational Association might well have spoken for both individuals and institutions and generally. As a matter of fact, it should be clear that the participation of the National Educational Association in the conferences was of the slightest. They were invited, we urged them to be represented, and they were present by delegate at the first and the second conferences; but their participation was of

the slightest. There was no expression from them upon the diminution in the case of individuals, and they contented themselves at the outset with an expression of dissent from any provisions which tended to diminish in any way the present privileges of libraries.

The American Library Association was present by two accredited delegates, who considered, by later action of the representative board of the association, that they had authority to represent the association in assenting to final provisions. Those two delegates were the present president of the American Library Association, Mr. Frank P. Hill, of the Brooklyn Public Library, and Mr. Frank C. Bostwick, of. the New York Public Library. Mr. Bostwick was here yesterday, but has had to leave to-day. Colonel Olin's remarks included the American Library Association as one of those associations for whom he could give a general assent to the bill substantially as it stood. Coupled with that, however, should, I think, be before you this entry in the record of our conference in March last. At that conference these provisions were, I believe, substantially (as far as they regarded libraries) as they stand in the bill, except that one proviso has been added, which is rather in favor of libraries, as we understand it, than otherwise. They expressed themselves then thus:

Mr. HILL. There is very little that I need to say. The paragraph relating to the copyright respecting the libraries has been taken up very carefully by the executive board and the council and by the delegates, and we are satisfied as an association with the draft as submitted, and, personally, I approve of the change which has been agreed to this morning between the publishers and the delegates. That related to the additional proviso that they should not be prohibited from importing foreign editions in these exceptional cases, where they could not get the American edition.

I think it is only fair to state, Mr. Librarian, that while the executive board and the council of the American Library Association have both voted for the adoption of this draft there will be individual opposition. There are some librarians and some libraries that are opposed to any change in any part of the law which affects importation, and so have reserved the right to oppose that part of the bill. I think it is due to you that such statement may be made, so that you may know the individual opinion as well as the general one.

If Mr. Bostwick had been here, he would to-day have called attention to that. I do it simply because those delegates are not here to say that; and I do it in order to give Mr. Cutter's remarks a proper standing before you. Mr. Cutter, as I understand it, represents librarians and libraries who object to any diminution of the present privileges. (The papers referred to during the foregoing statement by Mr. Putnam are as follows:)

THE NEW WILLARD, Washington, D. C., June 7, 1906.

To the honorable Joint Committee of the Senate and House of Representatives. GENTLEMEN: Referring to the proposed bill to amend and consolidate the acts respecting copyright, now before the committee, I would propose the following

amendments:

Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following:

"And provided, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (g), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright."

Amend section 5 (p. 4, lines 2 to 3) by adding, between lines 2 and 3, before the word "photographs," the following: "() talking-machine records."

Amend section 18, clause (b) (p. 14, line 14), by adding, between the word " composition" and the word "any," the words "any talking-machine record;"

Amend section 23 by striking out from the clause marked "First" (p. 17, lines 18 to 20) the following: 'or any device especially adapted to reproduce to the ear any copyrighted work."