described either before or after such date against any persons who, prior to such date, have taken any action or expended labor, money or any other consideration, or incurred any liability, in connection with any preparation for, creation or exploitation of, or in the acquisition of rights, quitclaims, releases, or clearances affecting such work or any right thereunder, or for any act or use of the type described in section 4 of this Act or for any other act or use made, in a manner which at the time was not unlawful; Provided, further, That no remedies shall be available under this Act for the making for purposes of study or research and not for profit of copies of the works referred to in the above subdivision (iii) of this subsection.

Mr. BRYLAWSKI. Mr. Chairman, I was merely reading these historical facts into the record to show what the previous committee had accepted along this line, and what we had recommended.

There was a fourth reservation that we wanted:

(4) to grant to the nationals of any foreign country any rights in the United States greater than those enjoyed by the citizens of the United States in any such foreign country.

Then, it provided:

In accordance with article 25, paragraph 3 of the convention, it is further resolved that the date of the entry into effect thereof as respects the United States shall be 1 year after the date of the adoption of this resolution.

At that time we were perfectly satisfied to go into the Union with these reservations, if these reservations were acceptable to the other Union countries, in line with similar reservations made for their nationals, and that if we could not go in, we would continue our efforts at the next conference, which was to have been held.

Well, nothing happened at that. For more than 150 years, copyright in the United States has been dependent upon registration. Our copyright laws are in effect a contract between the author and the Government of the United States, in which for consideration of the monopoly given to the author for a limited period of years, the author agrees that upon the expiration of that period his work shall be in the public domain. Hence we have machinery to establish with some accuracy the date on which a copyright comes into existence and the date on which the copyright passes out of existence and may be freely used by any citizen of this country, bearing in mind that in the absence of enabling legislation, within the year's time limit proposed, the treaty will become the supreme law of our land, and if, as Dr. McClure has suggested, the treaty is self-executing in its character, then I feel, as does Mr. Kaye, that we will have nothing but chaos and confusion, because so many of the provisions of the treaty are so wholly inconsistent with our own laws on the subject. For example, the term of copyright suggested by the convention is life and 50 years. If this term is not uniformly adopted, then the law of the adhering country shall apply. Our copyright law provides for a term of 28 years, with provision for a renewal during the twentyseventh year, and if there is no renewal the work ceases to be protected. In the case of published works the term starts from the date of publication with notice, but when would the term start in this country as to works which are protected under the treaty? Because they come into existence upon creation, nobody but the author himself knows when the work was created. There is no public record of that. And would this term-I am now speaking as to the rights of foreign authors would this term expire at the end of the 28 years, unless renewed? If copyright is to be secured without any formalities in the

case of foreign works, then of course there could not be formality for a renewal; as a matter of fact there would be nothing to renew, because there would be no legislation of the original copyright.

Are you going to say that a foreign author need not renew, but that an American author must lose his copyright at the end of the twentyeighth year if he fails to renew? The convention seeks to grant copyright on terpsichorean works-dance steps-and, we believe, oral works.

Under the Constitution, Congress is given the right to protect the writings of authors for limited periods of time, and while the term "writings" has been rather elastically interpreted, yet I doubt that an author's thoughts, expressed only orally or by the manipulation of his feet in the intricacies of some dance step would be considered as a "writing of an author" as the term is used within the Constitution of the United States.

Digressing for just a moment, I want to answer the statement made here on Tuesday, that so far as the witness, who at the time was Dr. McClure, knew, the protection of the convention was being uniformly recognized by the various contracting countries. This is not true. Dr. McClure stated that so far as he knew, except for certain provisions under the alien enemy laws, which neither Germany nor England had as yet applied, the laws of the convention were being recognized. I think there are 41 or 42 nations which are now members of the Bern Convention, and of that group some 25 or 26 are now within the sphere of Axis domination. They include Germany, Italy, and Japannations which have shown no compunction about violating treaties much more solemn in character than the convention of Bern; and I would like to ask the Chairman whether a nation like Germany, which made a funeral pyre of the world's classics, including the Bible and the philosophical broodings of Thomas Mann, which forbids the playing of Mendelssohn's works would such a nation be apt to pay much attention to a treaty designed to protect the rights of American authors and composers?

Germany grants no protection whatsoever to the works of the so-called non-Aryan, and Germany as well as Italy and Japan, through its censorship laws discriminates and harasses authors, whether Aryan or non-Aryan, whose works may conflict with its particular nationalistic brand of thinking. Jews have no legal standing of any character in Germany. Several years ago, and prior to its annihilation, a Polish Jew-Poland being a member of the Bern Convention-sued. He was a sculptor. He sued a German for the use of his work without permission, and he completely proved his case; but the German court held that when a non-Aryan went into court against an Aryan, no matter how strongly the fundamental law favored the rights of the non-Aryan, the current and the dominant German philosophy compelled judgment for the Aryan.

Senator THOMAS of Utah. Have you got the case?

Mr. BRYLAWSKI. I can furnish it, or send it to you.

Senator THOMAS of Utah. One other question. Did the fact of nationality enter into that case, or was it merely the fact of race?

Mr. BRYLAWSKI. It was not a question of nationality, because Poland had not then been overrun. Poland was a free and independent state.

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.
Senator THOMAS of Utah. Please do so.

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