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States of their works. But England is not in that situation. In order to protect American labor and in order to protect American book publishers against the cheaper printing abroad, whether it is in Canada or in England or New Zealand or Australia, we say to the English author:
"You are not in the same position as the German, Swiss, Dutch, or Norwegian author. You can get copyright only by registration. Within 60 days after publication of your book abroad, you must deposit a copy in the Library of Congress, coupled with an application for an ad interim copyright, and if you do that, you have a copyright which endures for 4 months.
"If within that 4-month period an authorized edition of your book shall be printed from type set within the limits of the United States, and all of the formalities as to registration gone through with again-filing copies, application, payment of fee—then your copyright shall be continued for the full term of 28 years.
"If you fail to make your ad interim registration, your book is in the public domain of the United States. If you make your ad interim registration and fail within the 4-month period to print and publish an American edition and go through the formalities of registration, your book is in the public domain of the United States.'
England resents such a discrimination, and I believe, with much justification; and it is because of the constant pressure that has been brought to bear upon our State Department through the English Embassy over these years that the State Department has been urging us to adhere to the convention.
Senator THOMAS of Utah. Why does she not ask for a provision in the bilateral convention?
Mr. BRYLAWSKI. If there is any stench, we do not have to burn down the house in order to get rid of it.
Senator Thomas of Utah. That is my point-Why does she not ask for a change in the bilateral convention, not in the Bern Convention-the one you say you have between England and the United States?
Mr. BRYLAWSKI. I do not know why the State Department does not do this.
Senator Thomas of Utah. But you are making the point that it is England that is pressing for this?
Mr. BRYLAWSKI. I do.
Senator THOMAS of Utah. Why does not England press for a modification of the bilateral convention under which we are operating? Would not that be the logical thing for England to do?
Mr. BRYLAWSKI. I think it would be the logical thing to do, if we had the provisions such as there were in the Shotwell bill, to threaten the English author, and at the same time to protect American labor against the cheap printing abroad, and to protect the American book publisher against cheap printing abroad. We could give to the English authors the benefit of copyright the same as we give to other authors, and yet, either through a provision similar to the Shotwell bill or through the tariff make it impossible for books printed abroad in the English language to be translated and distributed in any quantities in the United States.
Senator THOMAS of Utah. Yes. My whole point is your point, speaking of England. Taking up your statement, why revert to an
attempt to bring us into the Berne Convention, if by a simple request for a modification of our bilateral copyright convention, between England and the United States, these changs can be made?
Mr. BRYLAWSKI. Mr. Chairman, I do not know why some people use a shotgun to kill a housefly.
Senator Thomas of Utah. I do not know why they would use a shotgun to kill a housefly, and that is why I am asking. Has England asked for the simpler change?
Mr. BRYLAWSKI. That I do not know. That is a matter with the State Department. But I do know it is a fact that the great pressure which has been brought upon the State Department for this comes from England. Other countries are not interested. They have copyright without anything. England has to go through the for
. malities of printing and publishing here.
Now, if we can protect England or English authors, and at the same time protect American labor against cheap printing abroad, and to protect American book publishers against the importation of cheaply printed books from abroad, we will accomplish every purpose that we want without getting into a convention now that nobody wants.
Senator Thomas of Utah. And that can be accomplished, if I understand what you said, by modification of the bilateral. treaty between the United States and Great Britain?
Mr. BRYLAWSKI. I should imagine so.
STATEMENT OF SIDNEY LUST, REPRESENTING MOTION PICTURE
THEATER OWNERS OF AMERICA
Senator THOMAS of Utah. Mr. Lust.
Mr. Lust. Senator Thomas, I am here this morning representing Mr. Julian Brylawski, who was called to New York to attend a very important meeting. He asked me to read his message to you. I am a local theater owner here in Washington, on the board of the Motion Picture Theatre Owners of America, and with this statement that I have here, I will try to explain things as we go along, if you have any questions to ask me.
I might say, as a theater owner, that until 2 years ago the producers had a "score charge” which we exhibitors had to pay. A score charge was made for the right to use copyright music, or music controlled by ASCAP, on records or films. The producers charged it to us, because the ASCAP charged it to them. That has been eliminated, but was quite expensive at one time. At the present time we pay ASCAP a seat tax for the use of this music that is used on the film, which, of course, we do not think is fair. We have objected to it right along, and it does not seem to help us any. Of course, as you know, they collect this fee double; not only do they collect it from the theater owners, but they collect it from the producers, where the film is made out in California. We are compelled to use this music because it is part of that film, whether we want to use it or not, so we pay them this copyright fee; and at the same time, if these other fees were added on for these foreign countries, that would be an additional tax, which the theater owners will have to pay. I am just merely bringing that out before I read Mr. Brylawski's statement.
Senator THOMAS of Utah. I do not understand what the technique of the fee has to do with the treaty. Has it anything to do with it?
Mr. Lust. Yes, sir. If this bill were passed or if we joined the Bern Convention, these additional authors and composers and music publishers from the foreign countries would come into this country and add this additional fee to the theater owners, in addition to the fee that we now pay. That is what I am trying to bring out.
Senator THOMAS of Utah. Then, you have no fee to pay to the foreigners now?
Mr. Lust. No, sir.
Mr. Lust. Yes, sir; that is a free field; but, Senator, I may say this. It is not a free field, because ASCAP collects from us, and they use this music. Whether they pay, I do not know, but I do know that they use this foreign music, plus American music, and they make the theater owners pay this fee.
Senator Thomas of Utah. That is, you only pay, though, for the American music?
Mr. Lust. Yes, sir.
Senator THOMAS of Utah. Is it true that the foreign music producer has at least one advantage-he does not have to pay that fee? That is a practical advantage, not an advantage at law?
Mr. Lust. You mean if a foreign producer makes a film over in England or anywhere else?
Senator THOMAS of Utah. Yes.
Mr. Lust. Well, undoubtedly he does not have to pay that fee unless he uses American music. He does not have any fee unless he happens to use American music.
Senator Thomas of Utah. The American producer then is relieved of some little expense, if he is using American music?
Mr. Lust. No; we would still pay the producers and authors, by the year, for every seat we have.
Senator THOMAS of Utah. Whether they pay the other fellow or not?
Mr. Lust. Yes. In other words I believe this. I believe that when this film is reproduced in this country, for use on a copyright or a patented piece of machinery that ASCAP has any control over, or URCO, as we call them, or ŘCA, there is a fee paid for the use of that film, to these different companies, and we still pay ASCAP, regardless of what music is used. We pay them by the year for each seat that we have in our theater, and that, of course, we have always opposed. We think it is wrong. We feel that they are collecting this fee from the producers in Hollywood or wherever that film is made, for the use of this music on that film.
Now, the Motion Picture Theater Owners of America have a membership of over 8,000. That means three-fourths of the better motionpicture theaters in the United States belong to this organization of ours, of privately owned and operated theaters, and, of course, our position is opposition to a favorable report by this committee.
(Mr. Lust then read into the record the following statement on behalf of A. Julian Brylawski:)
STATEMENT OF A. JULIAN BRYLAWSKI, VICE PRESIDENT OF THE MOTION PICTURE
THEATER OWNERS OF AMERICA BEFORE THE SUBCOMMITTEE OF THE FOREIGN RELATIONS COMMITTEE OF THE SEVENTY-SEVENTH CONGRESS, APRIL 17, 1941 Gentlemen, I am here as the official representative and vice president of the MPTO of America, an organization of theater owners and managers, with a membership representing more than three-fourths of the better motion-picture theaters, in the United States, or a membership of more than 8,000 theaters. In other words, we are the exhibitors, as entirely separate from the producers or distributors of motion-picture film. Our huge investment is largely in privately and independently owned and operated theaters. Our interest is in opposition to a favorable report by this committee.
To fully understand our position in this matter I must ask the indulgence of this body to digress from a direct discussion of the treaty to seemingly irrelevent matters, but actually necessary to explain our position. Under the copyright law of 1909 the theaters have for years been paying to the owners of copyrighted music fees for the performing rights” to all music used in their theaters. These fees have been collected by an organization known as the American Society of Composers and Publishers, or ASCAP. These fees were based on the seating capacity of the theater and were on a reasonable basis as the theaters had an escape that in case the fees became unreasonable they could dispense with the use of ASCAP music entirely, as has been done recently by the broadcasting chains.
With the event of sound pictures, however, the music was recorded on the film with the picture and thus inseparable, this picture changed completely and the theaters protection against exorbitant or ruinous charges was based purely on the public interest and a definite feeling in Congress that if these charges ever became oppressive that something would be done about it. It is not that the theater owners objected to paying the fee on account of the actual money, so much as the principle involved, as well as the ever-present danger of ruinous increases in the fees.
The theater owners purchase or lease from the producers the motion picture, which is a perfectly useless piece of merchandise unless it can be shown to the public. Therefore, any music, or other copyright material, embodied in the film shown is construed as being shown for profit. This condition makes the theater owner liable (under the authors exclusion of performing rights as provided in the Copyright Act) for the use of all the copyright material in the film, which includes the story, scenery, scenario, costumes, as well as many other things besides the music. Realizing this peril to the exhibitor, producer arrangements have been made to clear all of this material for the public, with the exception of the "performing rights” of the music, most of which are assigned to ASCAP even before the music is written.
A contract, which expires September, is at present our only protection should the society seek to obtain from the theater the loss of revenue they have suffered by their recent breach with the broadcasting chains. The broadcasters can do without ASCAP, but the theater owner is absolutely helpless. inasmuch as he must run and show the music that is incorporated in the film, as it is impossible to separate them.
While all of this will seem to this committee purely domestic matters with no bearing on the treaty I bring it in as background because of our fears. ASCAP is an American organization for the control of copyrighted music. Practically every other country signatory to this, and especially the large ones, have their own performing rights societies. Many of them we note were delegates to the Berlin-Rome Conventions. At one time ASCAP had reciprocating arrangements to control the rights of the foreign societies in America, but that contract expired many years ago, so that with the ratification of this treaty the theaters, broadcasters, and other users of music in the United States are faced with the danger, if not actual necessity, of paying "performing rights” fees to scores of Foreign Copyright Associations. That this is not idle fears let me inform the committee that in 1936 when the treaty was first confirmed by the Senate, later to be withdrawn, that in the period between the treaty passing and reconsideration, three foreign copyright societies opened offices in New York for the collection of fees from the American theaters, radio and users of music, and more would have followed if the treaty had not been withdrawn. It is further explained to this committee the tremendous importance of this phase of the legislation. Let me call your attention to the fact that under the present copyright law each user of music is subject to a punitive fine of $250 for every performance of any piece of music, whether a few bars, a song, or complete show the penalty is the same for which if they have not paid the performing right fees and each performance is considered a separate breach. Faced with the enormous danger the theaters have no choice but to pay “performing right” fees, no matter what the cost.
I am creditably informed that in Europe these performing-right societies actually have representatives sitting in the box offices of the various theaters and the purchaser of a ticket to a show in Europe pays not only for the price of the ticket to one collector, but a government tax to another collector and the music tax to still another collector before his ticket has any value, and this tax runs from 5 to 10 percent of the ticket. If this system were followed in America, based on our recent collection experiences with our own defense tax, the cost to the American public might be anywhere from 40 to 80 millions of dollars a year. The American theater has never passed on to the public any of the music-tax fees they have been paying, but were the European condition to prevail this, of course, would be inevitable.
Of course, the remedy for all this lies in the revision of our copyright law, that will set forth a reasonable scale for the use of music, as has been done in Canada, or such necessary restriction as to not leave the users of American music at the mercy of exacting societies. Believing that every disease, or condition, that is so bad must bring either a cure or catastrophe, the theater owners still hope that we may be able to clear at the source the use of music embodied in film, but the ratification of this treaty, at this time, with its retroactive condition, restoring to copyright so much of the music now in public domain, on the incidental use of which so many millions of American capital are involved, it seems to us entirely necessary that this ratification be delayed until changes can be made in our own copyright law that will adequately protect American users of music, and especially the theater interests, who are in such a helpless and defenseless position.
Senator THOMAS of Utah. Mr. Lust, I notice this in Mr. Brylawski's statement:
That this is not idle fears, let me inform the committee that in 1936 when the treaty was first confirmed by the Senate, later to be withdrawn, that in the period between the treaty passing and reconsideration, three foreign copyright societies opened offices in New York for the collection of fees from the American theaters, radio, and users of music, and more would have followed if the treaty had not been withdrawn.
Do you th nk that that could rossibly be true? The treaty was ratified on an afternoon, as I remember it, w: en Senator Duffy was not present. The next day, he made his statement in the Senate, and the ratification was withdrawn, right there and then.
Mr. Lust. Well, that may be correct, Senator Thomas. However, I could check on that I will be glad to check on that.
. Senator THOMAS of Utah. I remember that the treaty went through in just a very, very informal way, by the reading of the calendar, and the sponsor of the treaty, and the person who made the report, was not even present. The next day, Senator Duffy called attention to the fact that they were still in the midst of discussing some arrangement whereby a domestic law would be reported, and therefore the treaty was restored to the calendar. The point is not a great one, of course. Anyone might open an office in anticipation of the treaty.
Mr. Lust. It is possible. It can be done.
Also, Mr. Chairman, with regard to what is said by Mr. Brylawski about taxes, I will relate a comparison at this present time in the State of Maryland where I have several theaters. We pay the State, in addition to paying the town tax-we pay our State tax, our music tax, and a real-estate tax. We pay a tax of 1 percent on our receipts, not on our profits. We do not pass that on to our patrons.