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Thank you very much.
Mr. SARGOY. I should like to submit the statement, which ties up the references to the resolutions.
Senator THOMAS of Utah. It will be included in the record.
STATEMENT BY EDWARD A. SARGOY AS TO THE POSITION OF THE AMERICAN BAR
AssocIATION ON PROPOSED ADHERENCE BY THE UNITED STATES TO THE ConVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS AS REVISED AT ROME IN 1928
This statement is submitted by Edward A. Sargoy, of New Rochelle, N. Y., an attorney-at-law, practising in the city of New York.
As chairman of the committee on copyrights of the section of patent, trade-mark, and copyright law of the American Bar Association, I have been directed by Mr. Loyd Sutton, chairman of the above section, to indicate the position taken by the American Bar Association, upon recommendation of the section, with regard to adherence by the United States to the International Copyright Convention.
As hereinafter indicated, the association does not approve the proposed adherence of the United States to the Convention for the Protection of Literary and Artistic Works, as revised and signed at Rome on June 2, 1928.
The house of delegates of the association, at a meeting in Chicago on January 8, 1940, adopted, upon recommendation of its section of patent, trade-mark, and copyright law, the following resolution previously adopted by the section at its annual meeting in San Francisco on July 10, 1939:
“Resolved, That while not opposed in principle to adherence of the United States to the International Copyright Convention, Senate Executive Report No. 2, from the Committee on Foreign Relations, 76th Congress, first session, recommending that the Senate advise and consent to Executive E, 73d Congress, second session, to adhere to the International Copyright Convention as revised in Rome on July 2, 1928, should not be acted upon by the Senate until enabling legislation be first enacted by Congress as a whole to adjust our domestic law to the requirements of the Convention and adequately to protect the rights and interests of American citizens; but that if the Senate nevertheless believes adherence to be advisable without such prior revision of the domestic law, such adherence should be conditioned upon and made subject to the appropriate reservations in respect of oral copyright, freedom of contract for moral and other rights, protection against retroactivity and other like reservations specified in the resolution adopted by the house of delegates at its annual meeting in Cleveland, Ohio, on July 29, 1938, and by the section of patent, trade-mark, and copyright law at its annual meeting in Cleveland, Ohio, on July 26, 1938, in respect of Senate Executive Report No. 1 from the Seventy-fifth Congress, second session, making similar recommendations to the Senate in respect of said Executive E.”
The reservations referred to in the above resolution, as suggested in the somewhat similar resolutions previously adopted on July 29, 1938, at Cleveland, by the house of delegates of the association and by the above section 4 days earlier, were as follows:
"There should be no such adherence until our own copyright law has been appropriately amended so as to adjust its provisions to the requirements of the International Copyright Convention, and further that adherence by the United States be with such reservations as will provide:
"(a) Conformity with article 1, section 8 of the Constitution of the United States by limiting copyrights to 'writings.'
“(b) Preservation of full freedom of contract in ct of any works or writings therein, incl 4 ding but not limited to, so-called moral rights or authors.
"(c) 'Com plete protection against retroactive effects of adherence with respect to past and future uses which, but for adherence, would be in the public domain and lawful in the United States.
"(d) Such reservations as would prevent a national of a foreign country securing rights in the United States greater than those enjoyed by citizens of the Unit a States in the country of such national.”
In recommending the foregoing resolutions to the association, the section itself favorably acted upon like recommendations contained in the reports of its committee on copyrights. Among the reasons mentioned by such committee in such recommendations to the section, were the following:
The matter of reservations by the United States, for example, was not deemed to be a matter of serious practical concern to the other countries adhering to the convention. This was so for the reason that many such countries themselves have reservations to the Rome Convention, particularly to protect their nationals against retroactive effects of adherence. These countries had retained such reservations previously made by them upon adherence to the convention under the terms of the Bern and Berlin revisions, as they were permitted to do when they subsequently adhered under the terms of the Rome revision of 1928. Great Britain, for example, so retained and still has many reservations to the present convention with respect to a considerable number of different countries, as do other adhering nations. While it might be contended that such adherence with reservations would not be deemed an acceptance of the offer in the terms provided by the convention as adopted in Rome, it could probably be considered a counteroffer capable of acceptance individually by the various contracting countries. As further indicated to the section, the United States should not be required, in the interests of fairness, to grant to an alien any rights in the United States greater than his country would grant to a citizen of the United States, and that appropriate reservations were needed to insure such equality.
Since adherence, upon becoming effective, would secure for aliens automatic copyright in the United States without formalities, and thereby remove many works from the public domain in this country, with possibly retroactive effects injurious to American interests, the Committee on Copyrights further pointed out to the section at the above 1938 Cleveland meeting:
A treaty of this nature, as pointed out in report of the subcommittee annexed to Senate Executive Report No. 1, is self-executing or selfoperating. Being the law of the land and equal in status, under the Constitution, with any act of Congress participated in by Senate and House as a whole, the treaty will automatically suspend the domestic copyright laws upon the date it becomes effective in respect of any provisions therein inconsistent with automatic requirements for copyright expressly provided by the convention. Thus, alien authors and owners, or their heirs or assignees, will, without preparatory enabling legislation in the United States, have automatic copyright in this country, without any further formalities whatever, in any works in which copyright still subsists abroad. Since the customary term abroad is the life of the author and 50 years, a vast body of alien copyrights will thus be lifted out of the public domain in the United States.
“However, the removal of a vast body of alien works from the public domain in the United States may work serious hardship upon those who have made expenditures of labor or money, or incurred liabilities in respect of such works in the United States while it was lawful still so to do. Upon the effective date of the treaty of adherence, these persons may be stopped from disseminating such works by the alien owner. It is necessary that there be some protection against the retroactive effects of adherence. This could be accomplished bly domestic enabling legislation along the lines indicated in the Duffy bill, S. 7 (75th Cong.) or S. 3047 (74th Cong.). Without such enabling legislation, a reservation is necessary. Many other adhering countries have reservations in respect of retroactivity upon adherence."
It was further indicated by its committee that many authors and owners of American copyrights, who presumably would benefit by seeking international protection of their works, appeared to have lost their ardor of other years for international copyright. Associations representing American authors apparently resented the fact that alien authors would have copyright in the United States automatically upon creation of the work anywhere in the world, without the necessity of formalities binding upon American authors under the domestic copyright law, such as publication with notice, registration, and the like. Owners of American copyrights, despite their interest in foreign markets, were nevertheless vastly more dependent and concerned with the domestic American market. Exchange restrictions, tariffs, quotas, inability to take their money out of foreign countries, as well as racial, political, and economic discrimination against Americans, made the foreign market relatively less important. By securing copyright simultaneously in the United States and in a country adhering to the convention, many American copyright owners have, for practical purposes, for many years been securing copyright protection abroad, such as it may be, except in a country such as Holland, which in certain instances questioned the first publication of the work in the country outside the United States. Subsequent developments during the last two years in the way of actual hostilities abroad, have made the problem of the foreign market of even less immediate importance. At the last annual meeting of the section, held in Philadelphia on September 9, 1940, its committee on copyrights reported that in view of the present situation abroad, the position previously taken by the section and the association on adherence to the International Copyright Convention, still seemed especially appropriate to such committee. Accordingly, the committee recommended no change in the position above stated.
There seems, however, to have developed in the section a considerable body of opinion among its members which is opposed to changing the established American system of copyright, based on formalities, in order to introduce certain principles of copyright inherent to the copyright system under the above International Copyright Convention, namely: Automatic copyright from creation without formalities; and a term of copyright measured by the life of the author plus a fixed number of years. At the last annual meeting of the section in Philadelphia on September 9, 1940, it considered a report of its committee on copyrights on a proposed general revision of the domestic copyright law (S. 3043, 76th Cong., 3d sess.). An amendment was made from the floor to the committee's recommendation in respect of this bill, and adopted by the section, to the effect that the section opposes automatic copyright, opposes extending the copyright for the uncertain term of the life of the author plus a specified term of years, and opposes adherence to the International Copyright Union. The same was thereupon likewise adopted by the house of delegates of the association on September 13, 1940, at its annual meeting in Philadelphia, upon recommendation of the section. Respectfully submitted.
EDWARD A. SARGOY, Chairman of Committee on Copyrights of the Section of Patent, Trade
mark, and Copyright Law of ihe American Bar Association. APRIL 15, 1941.
Senator THOMAS of Utah. Does anyone else wish to present a statement?
Mr. GILBERT. Is there time enough to present a statement before 2:30?
Senator THOMAS of Utah. I am late. I cannot stay; I am sorry. Do you want to submit a statement?
Mr. GILBERT. I will consider whether I will submit a statement, or return on Thursday. If it is possible for me to return, I will; if not, I shall send a written statement.
Senator THOMAS of Utah. Is there anyone else who wishes to submit a written statement?
(The following additional statements were presented for the record:)
STATEMENT OF MARJORIE KINNAN RAWLINGS
HAWTHORN, FLA., April 9, 1941. SUBCOMMITTEE, COMMITTEE ON FOREIGN RELATIONS,
United States Senate, Washington, D. C. Sirs: I should like to have my personal statement entered at the hearings on the proposed International Convention of the Copyright Union.
I am one of the American writers to whom an injustice has been done by the nonparticipation of the United States in the Bern Convention. I offer my own experience as a definite example, hoping that in future this country will cooperate with other nations for the copyright protection of artists and writers.
My novel, The Yearling, was pirated in Holland and Japan, and I received no royalties and no remuneration for my work from these editions. A writer is likely to have one success, and must capitalize on this wherever possible. To my protests, the Dutch publishers replied that they had no obligation, because of the refusal of the United States to cooperate internationally. Trusting that this injustice will be righted, Sincerely,
MARJORIE KINNAN RAWLINGS.
STATEMENT OF ARCHIBALD MAC LEISH, THE LIBRARIAN OF
THE LIBRARIAN OF CONGRESS,
Washington, D. C., April 12, 1941. Hon. ELBERT D. THOMAS,
Senate Office Building. MY DEAR SENATOR: The Honorable Carey R. Sutlive, has been kind enough to advise me that your subcommittee will open hearings on the proposed International Convention of the Copyright Union on Monday, April 14 (postponed, as I understand it, to Tuesday, April 15, 1941).
I shall make every effort to attend the hearings but, since I am obliged to leave for Puerto Rico on Tuesday, the 15th, for an Inter-American conference, it may be impossible for me to be present. Í should, therefore, like to state my views for whatever value they may have.
In principle, I am heartily in favor of adherence to the International Convention of the Copyright Union. Any action which facilitates free intellectual and cultural exchange between peoples seems to me desirable. Such action seems to me particularly desirable at the present time when lines are drawn with increasing clarity between those who believe in the free mind nd free exchange of the things of the mind on the one hand and those, on the other hand, who do not believe in freedom of mind and whose practice involves the obstruction at every opportunity of free expression and free exchange. Our Government, through its leaders, has freely declared its adherence to the democratic ideal of individual and spiritual liberty and these declarations would, in my view, be given weight and force should they be realized in a specific act of obvious and unmistakeable intention.
These are my views as a citizen and as a writer. They are also my views as Librarian of Congress. As Librarian of Congress, however, I am obliged to add that in any question of legislation to implement adherence to this or any other international convention, the Library of Congress would wish to be heard to protect so far as possible the deposits under the Copyright Act upon which it depends so materially for additions to its collections.
With the renewed expression of my appreciation of your courtesy in permitting me to be heard, I am, Faithfully yours,
The Librarian of Congress. Senator THOMAS of Utah. We will stand in recess until Thursday morning at 10 o'clock.
(Whereupon, at 2:15 p. m., the committee recessed until Thursday, April 17, at 10 a. m.)
INTERNATIONAL COPYRIGHT CONVENTION
THURSDAY, APRIL 17, 1941
SUBCOMMITTEE OF THE
Washington, D. C. The subcommittee met, pursuant to adjournment, at 10 o'clock a. m., in the committee room, Capitol Building, Hon. Elbert D. Thomas (chairman) presiding.
Present, Senator Thomas (chairman).
Senator Thomas of Utah. I will hand the reporter certain matters which I desire to have inserted in the record.
(The matters referred to are as follows:)
Music PUBLISHERS' PROTECTIVE AssocJATION,
New York City. MEMORANDUM SUBMITTED BY Music PUBLISHERS' PROTECTIVE AssociATION,
INC., IN OPPOSITION TO UNITED STATES ADHERENCE TO THE INTERNATIONAL
We, the Music Publishers' Protective Association, Inc., the trade organization of the popular music publishing industry, always have been and still are opposed
to the adherence by the United States to the International Copyright Convention et (Text of Rome 1928). Our opposition is apparent from the records of prior
hearings. (See for instance page 31 of minutes of hearing before subcommittee of the Senate Committee on Foreign Relations held April 12 and 13, 1937.)
At this time, we again wish to go on record as opposing any treaty or legislation 14.1 providing for such adherence, at least until such time as enabling legislation shall
first have been enacted by the Congress to adjust our copyright law to the requirements of the convention.
If, by treaty, the Senate effects the adherence by the United States to the tili International Convention without such enabling legislation, American nationals
will in many cases be greatly prejudiced to the benefit of nationals of foreign countries, for among other things
(1) The treaty would become the supreme law of the land, and since our present Copyright Act is inconsistent with the convention, the treaty would be tantamount to repealing the present Copyright Act and leave Americans without an adequate copyright law.
(2) It would grant retroactively to alien copyright owners rights in works previously in the public domain in the United States, and thereby render liable thousands of American authors, composers and publishers for their prior use of such public domain material.
Under present world conditions, when governments, peoples and rights are enslaved or destroyed by ruthless military dictatorships, it does not appear wise to consider entering into treaty obligations with belligerent and nonbelligerent nations.
To summarize, we wish to have it appear of record that we are opposed to the
Music PUBLISHERS' PROTECTIVE Association, Inc.,
By WALTER G. Douglas, Chairman of the Board.
SIDNEY WM. WATTENBERG.