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against the disruption of the periodical industry and the resultant injury to authors and artists generally which might result unless the protective legislation accompanies automatic copyright.
"We have been informed by able legal authority that entrance to the Bern Convention by treaty while our present copyright statutes remain the law of this land would lead to years of litigation before all of us who create and use copyrightable material would know where we stand. Our whole copyright law is built upon the concept of registration. The Bern Convention is based upon the concept of copyright by creation. Would entrance to the convention by treaty nullify all or none of our copyright statutes or just those sections contrary to the rules of the convention? What effect would the copyright laws of signatory nations have upon our ways of doing business? If only a part of our statutes were nullified, would it be the rights but not the remedies? If foreign concepts and statutes can be made to supercede domestic law by treaty then it is our firm conviction that our own legislative house should be put in order before the passage of the treaty to conform to its terms and thus to avoid litigation. If the terms of the Convention do not become the law of this country through union by treaty, then the proponents of adherence have gained nothing until our copyright law has been revised. Hence, we urge upon this committee the recommendation that no such drastic changes in copyright practice as contemplated in this bill be undertaken as piecemeal legislation, but that if automatic copyright is to be considered it should be a part of the general revision of our archaic copyright law, at which time proper safeguards to those whose property rights are threatened may be enacted."
WHITMAN, RANSOM, COULSON & GOETZ,
COMMITTEE ON FOREIGN RELATIONS,
United States Senate, Washington, D. C.
(Attention Chairman of the subcommittee for the consideration of adherence to the International Copyright Convention.)
DEAR SIR: There is transmitted herewith a memorandum by Robert E. Coulson, of counsel for the National Publishers Association, Inc., in which there is outlined the position of the association with regard to the adherence of the United States to the International Convention of the Copyright Union.
We understand that this memorandum is to be included in the record of the hearings held before the Senate subcommittee commencing on Monday, April 14, 1941.
We would appreciate it if you would forward to us a copy of the printer's proofs of said record so that Colonel Coulson may have an opportunity to check the matter printed therein over his name.
Very truly yours,
WHITMAN, RANSOM, COULSON & GOETZ.
PROPOSAL FOR ENTRY OF THE UNITED STATES INTO THE INTERNATIONAL COPYRIGHT UNION-STATEMENT ON BEHALF OF THE NATIONAL PUBLISHERS ASSOCIATION, INC.
SENATE COMMITTEE ON FOREIGN RELATIONS,
Senate Office Building, Washington, D. C.:
This memorandum is submitted by the undersigned, as counsel for the National Publishers Association, Inc., in opposition to the proposal for the entry at this time of the United States into the International Copyright Convention, also known as the Berne Convention, which was amended in 1928 by the Rome Convention. The National Publishers Association, Inc., has a membership which includes practically all of the publishers of magazines of national distribution. The combined per issue circulation of its membership is above 50,000,000.
The first outstanding objection to the proposal rests primarily upon the fact that the international convention provides for automatic copyright, without any registration or recordation in this country, of literary works written by the citizens of all nations subscribing to the convention without providing for certain coordinating changes in our present copyright law which the association believes
necessary and essential to the protection of the property rights of American authors, illustrators, and publishers.
Our statutes now call for the establishment of copyright by registration and recordation upon publication. Prior to registration and publication, authors have the same protection of ownership in their property under the common law that any man has for any article which he possesses or has created. In the instance of infringement of statutory copyright, magazine publishers are subjected to the punitive penalties which the copyright law provides, which includes restraint by injunction of the printing and distribution of the particular issue and statutory damages, including a penalty of $1 for each copy distributed.
With the large present circulation of magazines throughout the country, these penalties are already an enormous risk to the publishers. This risk would be tremendously increased if registration and recordation of works protected by the copyright law, which would result from adherence to the union, were no longer required. The distribution of any issue of a magazine may be halted during the process of its printing and at any time prior to its off-sale date by temporary injunction based upon an entirely innocent act on the part of the publisher. This may be carried to such a point that the publisher must make rebates to his advertisers and readers. When it is considered that there have been issues of magazines to which the publisher has contracted to deliver more than a million dollars worth of advertising to over 2,500,000 readers at a stated time, the magnitude of this possible penalty becomes apparent.
Moreover, favorable action on the propsoal for the entry of the United States into the International Copyright Union would clearly pave the way for individuals throughout the world to commence litigation often times solely for the purpose of harassing publishers. It would be quite possible by injunction to suspend the distribution of the entire issue of a magazine in large public demand because of the publication therein of a four-line poem accepted by the publisher in good faith and which had lain, unrecorded and unpublished, in the desk drawer of an author in Germany.
The National Publishers Association, Inc., fully believes that publishers should be properly responsible for infringement of copyright material and that the copyright owner should be fairly compensated for violation of his rights. The United States, however, is the greatest market for copyrighted material in the world. It does not seem that this market should be burdened with the risks of the tremendous losses which might be involved for innocent infringement by the application of the penalties and injunctive relief provisions of the United States copyright law which would ensue from adherence to the Bern Convention. The one safeguard of our copyright law on which the publisher may place reliance against these serious risks and penalties is the necessity of registration of copyrighted material. A further important objection to entrance by the United States into the International Copyright Union is that it would have the effect of injuring those persons for whose benefit the copyright law was enacted. Under the terms of the International Copyright Conventions, the mere creation of a literary composition would automatically vest ownership therein in the creator without the necessity of registration. Unless registration and recordation is required, all publishers would, of necessity, be hesitant to accept new literary works because of the possibility of original authorship of any piece of writing submitted to them lying with a citizen of any one of the signatories of the Berne Convention, which number approximately 39 countries. This might well force publishers to accept material only from well-known authors whose reputation for originality in authorship is well-established. Unless the publisher is able to check in the records of the Copyright Office to see whether or not material is entitled to protection, he can accept material from new creators only at the greatest risk of publishing material which may have been plagiarized, in whole or in part, with a large part of the world as a field for the plagiarist.
The reluctance of the publisher to assume such risks will work not only to his disadvantage, since it is of utmost importance that new writers and new artists be continually developed, but also will work to the obvious disadvantage of the little known creator. It is believed that any change in the copyright legislation should keep alive the incentive to encourage new writers and new artists and should not, by eliminating the necessity for registration and recordation, subject the publishers to possible heavy penalties arising from innocent infringement and thereby make it impossible for such publishers safely to purchase the work of unknown writers.
Hence, the publishers strongly feel that the theoretical advantage to be gained by certain authors through the adherence of the United States to the International Copyright Convention will be much more than offset, by throwing open the richest copyright market in the world to foreign authors without the necessity of registration, by the potent threat of strike suits and continued and harassing litigation which would face every publisher with an issue date to meet in order to satisfy his advertising contracts and by the increased difficulty on the part of the little known writer or illustrator to gain recognition.
The usual argument which is advanced in support of the proposal presently before your committee is that, through the entry of the United States into the convention, authors, illustrators, and publishers will be able to gain protection in those countries which are members of the union without the necessity of complying with any of the local requirements. The National Publishers Association, Inc., approves the purpose of additional protection to authors, illustrators, and publishers. In this instance, however, the fact is that in those cases where a writer, illustrator, or publisher desires protection for a work which he intends to distribute in foreign countries, it is but a simple matter to acquire the desired protection in such countries under the present state of the law.
Copyright protection in all countries which are members of the union can be gained merely through the original publication of the work in question in any one of the countries which are members of the union. Original publication is defined under the terms of the Bern Convention so as to include works which are published simultaneously in one of such countries. "Simultaneous publication" requires only that within 14 days of original publication in a nonmember country, the person seeking protection distribute or sell the work publicly within the boundaries of a member country. Publication made in this manner gives to the writer all the privileges and benefits which would accrue if the country of original publication, as the United States, were a member of the union. Thus, there appears to be no pressing reason for the adoption of the proposal before the subcommittee, and it appears to the National Publishers Association, Inc., that this proposal is a piecemeal approach to a highly complicated problem and that it would indeed work to the great disadvantage of most, if not all, authors, illustrators, and publishers of the United States.
There is a further consideration which should be taken into account, particularly at this time. The immediate entry of the United States into the union would not gain any present or practical advantages for those persons in this country who would normally be supposed to be benefited, because of the existing war conditions in the countries which primarily constitute the union. With practically the whole of Europe in a state of war, and the minds of courts of law and governments on more pressing matters, it is difficult to see how authors in the United States could expect to receive the desired protection in the war-torn countries. The practical difficulties of enforcing judgments or decrees under such circumstances must be apparent. Yet the authors, illustrators, and publishers in such countries would, without effort, gain all the advantages in the United States, and correspondingly there would be presented to the authors, illustrators, and publishers in the United States all the very real disadvantages which would arise from our adherence to the union.
It is urged that this committee take no such action as would require such drastic changes in the theory underlying the copyright law of this country-a theory which all American writers, illustrators, and publishers have relied upon since the passage of the first copyright law in the United States, and that such a change should be considered only in conjunction with a general revision and modernization of our copyright law and that, in any event, no changes affecting international copyright should be made until some semblance of peace and normalcy again reigns in the world.
April 18, 1941.
ROBERT E. COULSON.
CHRISTIAN SCIENCE COMMITTEE ON PUBLICATION FOR THE DISTRICT OF COLUMBIA Washington, April 16, 1941.
To the SUBCOMMITTEE OF THE Senate Foreign RelationS COMMITTEE, United States Senate, Washington, D. C. GENTLEMEN: I am authorized by certain official bodies of the Christian Science organization to ask that their approval of the proposed International Convention of the Copyright Union be made a part of the records of the hearing now being
held before a subcommittee of the Senate Foreign Relations Committee. These bodies which have expressed approval of the proposal are: The Christian Science Board of Directors, the trustees under the will of Mary Baker Eddy, and the trustees of the Christian Science Publishing Society.
These bodies have their offices at 107 Falmouth Street, and at No. 1 Norway Street, Boston, Mass.
This letter is sent you in lieu of formal appearance before the subcommittee and is prompted by your assurance that this procedure is all that is necessary to insure representation in the hearing record.
FRANK F. BUNKER,
Committee on Publication.
STATEMENT OF G. SCHIRMER, INC., MUSIC PUBLISHERS, OF NEW YORK CITY, WITH REFERENCE TO THE PROPOSAL THAT THE UNITED STATES OF AMERICA DECLARE ITS ADHERENCE TO AN INTERNATIONAL COPYRIGHT CONVENTION
I am presenting this statement on behalf of G. Schirmer, Inc., music publishers, New York City, who have been in business for nearly 100 years. If they have made any contribution to the cultural development of our country, it has been by disseminating the music of various countries from which the music of our own country has drawn the sap and the strength which today place it in the front rank of any national schools of music. This does not mean that the firm has drawn exclusively on the older musical cultures of Europe, but it has exercised its initiative and enterprise in fostering international cultural relations, including Latin American countries, to the point of having probably done more in this respect than any other American music publisher.
This action has not been one-sided. We have been able to contribute to the musical culture of Europe, South America, and Australia through individual contracts with publishing houses in those countries, notwithstanding the fact that the United States have heretofore not adhered to any international copyright convention. That these contracts have been profitable to both parties is evidenced by the fact that the obligations of the parties have been strictly observed and the contracts have endured for long periods of time.
Such infringements as we have suffered in foreign countries have not been substantial, and this in spite of the fact that music is a universal language which requires no translation as would an ordinary book. In fact, complete candor would require us to state that we have suffered more from real infringements within the United States in the form of the well-known song sheets which are to be found on sale in the streets of every city of the United States, not to mention the implied infringements as evidenced by the "borrowing" of copyrightable contributions which we have made in one form or another. From the foregoing it is not to be taken that we are opposed to the participation by our country in an international copyright convention. On the contrary, we recongize the desirability of automatic international protection for all intellectual properties, whether published or unpublished.
Difficulty, however, arises as soon as a particular contract, covenant, or agreement which purports to furnish such international protection is offered for our approval. At the present moment we have to consider whether or not it is expedient and advisable for us to join what is known as the Bern or Rome International Copyright Convention. The question for us to decide is, Does this convention at the present time offer to our crea.ors and publishers any security and protection beyond that which they now enjoy and, if so, are they required to pay for such supposed added protection by giving up any part of the securities and protections which they now may enjoy?
The problem should be viewed realistically. When the distinguished former Librarian of Congress, Herbert Putnam, presented the final draft of our present copyright law to the Joint Senate and House Committees on Patents, he pointed out that it was not
"an attempt at abstract and theoretic perfection, nor is it an attempt to transplant to this country theoretic or what might be charged to be sentimental provisions of foreign law * * * If the bill reveals some selfishness, it is perhaps condonable. It is the selfishness of men trying to protect their own property." If this statement, on the surface, appears to be somewhat materialistic, it is nevertheless particularly apt and timely in the light of the troubled conditions
abroad. More than ever we should be vigilant and alert in our endeavor to protect the works of our creators from unfair competition here and unauthorized use abroad.
Although American creators and publishers have for years enjoyed reasonable protection in foreign countries, the Rome Convention is offered in substitution of our present system, because the State Department believes that under such convention it can provide a more complete measure of enforcement of rights in any country where an infringement occurs. As we have already pointed out, we have not always succeeded in obtaining full protection for our property even in the United States; is there any reasonable expectation that the State Department will be able to accomplish in far-off places what we ourselves have often failed to accomplish at home?
Moreover our adherence to the International Copyright Convention has been urged upon the ground that 40 or more of the civilized nations of the world are signatories. The fact is that today several of these countries have been characterized by our Government as aggressor nations, and most of the other signatories are either allies of or completely under the domination of such aggressor nations. The value of such international covenant has thus been greatly weakened. The value of any treaty depends upon the willingness of all the signatory parties to live up to its clauses. Judging by the course of events within the recent past, have we any firmer ground to believe that the provisions of an international copyright convention will be respected than have been the covenants directed to the maintenance of trade agreements and general peace?
If we adhere to the international convention, we are undertaking to perform its obligations without any fair or reasonable epectation that the other signatories other than Great Britain and the British Empire will give to the convention the same respect.
The proposal that we adhere to the International Copyright Convention must be examined in the light of its effect on our domestic law. It must be conceded that if this country proclaims its adherence to the Rome Convention, that convention becomes the law of this land and to the extent that its provisions are in conflict with our domestic copyright law, the provisions of the domestic copyright law must be deemed to have been repealed; and furthermore, so long as this Nation remains a party to the International Copyright Convention and respects its obligations thereunder, our Congress is rendered impotent to enact copyright legislation which conflicts with any of the fundamental provisions of the international convention.
In other words, if we adhere to the copyright convention all provisions of our existing law with respect to the creation of copyright on publication, and of the obligations to affix a notice of copyright to each published copy of the work, and with respect of deposit of copies and registration of claim of copyright, are automatically repealed, and so long as our country remains a party to the convention, the hands of Congress will be tied, even in the face of any domestic urgency.
Also, it will be necessary for our Congress to enact appropriate enabling legislation with respect to many other subjects affected by the convention. Until such enabling legislation is passed (which, in the light of past experiences, may mean many years), our domestic copyright law will be in suspense with a resulting confusion too terrible to envisage. And all of this without adding to any appreciable degree, if at all, to the protection which American authors and publishers now enjoy under the existing system of protection by reciprocal proclamations. We therefore respectfully urge that this committee report against the adherence by this country to the Rome International Copyright Convention. Respectfully submitted.
G. SCHIRMER, INC.
By FRANCIS GILBERT, Counsel.
DEPARTMENT OF LABOR,
To the SUBCOMMITTEE OF THE COMMITTEE ON FOREIGN RELATIONS,
GENTLEMEN: In reply to your letter of April 12, asking if it is our desire to be heard before the Subcommittee of the Senate Committee on Foreign Relations, or to submit a statement or brief to the subcommittee, in connection with the