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certain features of the bill—for the most part having nothing to do with the provisions of the treaty—to attack the treaty as a means of preventing action on the bill. The disingenuousness of these tactics is the more noticeable because organizations making use of them had previously been strong advocates of adherence, and their sudden reversal of position had no discernible connection with the merits or application of or the need for the treaty.
Your subcommittee has carefully considered the testimony brought out by the hearings of the House Committee on Patents, which is exhaustive in extent, and is firmly convinced that not one substantial argument against the treaty was put on record, or, indeed, exists. Your subcommittee is, furthermore, equally convinced that the continued indulgence of the Senate in not making finally effective its action of April 19, 1935, approving the treaty, simply plays into the hands of those who wish to defeat legislation under cover of opposition to the treaty. In other words, continued inaction on the treaty merely helps to postpone legislation and thus maintain a deadlock in which neither treaty nor legislation can be acted upon, and to prevent action which the Senate has emphatically expressed itself as approving. Your subcommittee has no doubt that, once there is positive final action on the treaty, final and favorable action on the bill, which, in substance, was reintroduced in the present Congress and is now before the Committees on Patents of the Senate and House, will follow as of course.
While the entry into force of the treaty without legislation is believed, on examination of the facts, to be entirely feasible and calculated to cause little, if any, real difficulty, your subcommittee, in order to go the limit in meeting the views of those who continue to insist upon legislation as a condition precedent to the treaty, recommends that the treaty shall remain inoperative for a year after final approval by the Senate. It is your subcommittee's confident expectation that, the log jam thus broken, there will be legislation long before the year has expired.' In view of the real need for the benefits of the treaty, adverse criticism of this proviso may be expected; but, compared with the delay already experienced, certainty of the enjoyment of the advantages a year from the adoption of the treaty by the Senate must be regarded as a genuine gain by all who are sincerely anxious to see the public welfare served.
At the hearings which your subcommittee conducted on April 12 and 13, 1937, and in certain communications received by it or its members, evidence has been presented of an exaggerated attitude of fear, on the part of a few interested groups, regarding several provisions of the treaty, should they become operative prior to the enactment of accompanying legislation. It seems appropriate to endeavor to quiet these fears by explaining briefly some of the reasons why your subcommittee believes them to be largely or wholly groundless.
Thus it is said:
(1) That the Copyright Convention would put into effect in this country "oral copyright.”- By the words “oral copyright” is apparently meant copyright in an expression of the mind that has not been reduced to any kind of permanent or lasting form. The phrase “oral copyright” does not occur in the convention nor has any evidence been presented to the effect that any such copyright has ever been recognized or claimed under the convention. Literary and artistic works are defined (art. 2, par. 1) to include "all productions in the literary, scientific, and artistic domain, whatever the mode or form of expression, such as: books, pamphlets, and other writings; lectures, addresses, sermons, and other works of like nature; dramatic or dramatico-musical works; choreographic works and pantomimes, the staging (mise en scène) of which is fixed in writing or otherwise; musical compositions with or without words; drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches, and plastic works relating to geography, topography, architecture, or the sciences.'
This would seem to leave no room for interpretation in the sense feared.
(2) That the minimum statutory damage provisions of the act of 1909 would apply to invasion of the author's moral right set forth in the convention. The convention provides (art. 6 bis): "independently of the author's copyright,” he “shall retain the right to claim authorship of the work” and “the right to object" to its deformation. The act of 1909, (sec. 25) provides that “if any person shall infringe the copyright in any work,” he shall be liable to pay statutory damages which "shall in no case * be less than
two hundred and fifty dollars.' Since violation of moral right is not infringement of copyright, under the treaty, or the existing statute, the act would afford no remedy for such violation. Even if it were otherwise, the Federal courts are practically certain to avoid any construction of the statutory damage provision of the statute that would enlarge its meaning; witness recent judicial language regarding it (Doll v. Libin, 17 Federal Supplement, 546, 548):
* * *
“The provisions of the statute requiring the court to assess damages of not less than $250 against this defendant for an infraction of the law under the extenuating circumstances disclosed in this case is abhorrent to justice; here the court is wholly deprived of the exercise of discretion in the imposition of a fine commensurate with the wrong alleged to have been committed.”
The author's moral right in the United States is now a common-law right only, regarding which there exists full freedom of contract. There is every reason to believe that this would continue unchanged by the treaty in the absence of legislation.
(3) That adoption of the treaty without first amending the statute would raise problems for American users of copyrighted works which could not be settled until judicial decisions should have accumulated.—This sort of argument is always applicable when a legal change is proposed. It would apply measurably even if the statute were also changed. It should not be allowed to prevail over the need for reform. Within the year before the treaty would go into effect, users could undoubtedly arrange their affairs so as to avoid violating it as well as to take advantage of the helpful opportunities for which it makes generous provision.
(4) That the convention might have a retroactive effect in respect of liability for the use of copyrights hitherto unprotected in the United States.—There is nothing in the convention to indicate that it could be effective for any purpose prior to the da at least a year after adoption, when it is proposed to put it into operation in the United States. Within that period users of the works of authors in other countries parties to the convention should be able readily to ascertain what are and are not their rights with respect to such use, in other words what particular works of literature and art are and what are not included within the scope of the convention. Careful definition of the application of the convention, such as is contained in legislation now pending in both House and Senate would be very useful. But even in its absence little or no confusion or loss need occur.
(5) That, by first revising national law, the United States could provide a statement of its desires, and be in a better position to obtain their acceptance at the next conference of the countries parties to the convention.-It is difficult to see wherein the enactment of the desires, if any, of this country looking toward changes in the convention would render such program more acceptable to other countries than would be a simple statement by the United States delegation. No date has been set for the next conference. For the Senate to be guided by the prospects of such event would be simply to deprive American copyright owners and the general public of the benefits of the convention for an unpredictable future period.
The foregoing brief review of characteristic reasons advanced against action on the convention prior to the enactment of legislation confirms your subcommittee in its opinion that action should be taken now.
F. RYAN DUFFY, Chairman.
IN EXECUTIVE SESSION,
SENATE OF THE UNITED STATES. Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the adherence of the United States to Executive E, Seventythird Congress, second session, the Convention for the Protection of Literary and Artistic Works, as revised and signed at Rome, June 2, 1928. 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 one year after the date of the adoption of this resolution.
COUNTRIES PARTIES TO THE CONVENTION FOR THE PROTECTION OF LITERARY AND
(According to the records of the Department of State, November 24, 1937) Australia Austria Belgium
and Virgin Islands)
Windward Islands (Grenada, St. Lucia, St. Vincent)
Dutch East Indies
PARTIAL LIST OF ADMINISTRATIVE BUREAUS AND COMMISSIONS IN
UNITED STATES PARTICIPATES BY TREATY OR OTHERWISE
Aerial Legal Experts, Technical Committee of
tion relating to the
TEXT OF THE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS
AS REVISED AND SIGNED AT ROME, JUNE 2, 1928
(Text of the convention appears on pp. 4 to 15 in this record]
STATEMENT OF HON. BRECKENRIDGE LONG, ASSISTANT SECRE
TARY OF STATE
Senator THOMAS of Utah. We will first hear from the Assistant Secretary of State, Mr. Long.
Mr. Long. Mr. Chairman, this convention has been pending for a number of years. It was drafted and developed out of a meeting in Rome held about 12 years ago.
It has been from time to time considered by your committee, and the Department has intermittently from time to time, as occasion developed, urged favorable action by the Senate.
You have had timely communications from the President and from the Secretary of State on the subject, and I come before you this morning to present to you quite briefly the Department's attitude, which is one advocating a favorable report by your committee to the Senate.
Dr. Wallace McClure, of the Department, is much more familiar with the history and details of the proposed convention and of the existing copyright arrangements, the differences between them, and the reason for adherence by the United States to this one, than I am, and I hope you will do me the favor to direct any specific questions and technical subject matters to Dr. McClure and to Mr. Trueblood, who is connected with the Cultural Relations Division of the Department of State.
For several reasons the Department is interested in the favorable recommendation of this committee, and respectfully urges your approval, without further delay, of the convention for the protection of literary and artistic works. Throughout the decade that it has been before the Senate the Department has, of course, given unremitting attention to the problem of copyright and has intermittently sought from the Senate the assistance which would have been provided by the adherence of the United States to this convention.
In the war against literary piracy which, like other warfare, is being waged all over the world, this pending convention is the best and most modern armament. It is the duty of the Department of State to protect American interests abroad. We ask you to give us the instrumentality that we most need to do this job efficiently in the field of copyright.
It is not, however, merely upon this reason for approving the convention, increasingly valid and compelling as it is, that I wish to emphasize. I want to ask the Senate to approve it now because it has a distinct and a distinctive relation to a major policy of the present emergency.
Among the important and fundamental means of building solidarity among the peoples of the Western Hemisphere is the development of closer cultural ties. For the purpose of becoming better acquainted with one another's literature, music, art, science, and inventive genius, in short with the intellectual life and thought of the peoples who are our American neighbors, treaties and agreements have within the last few years been entered into and governmental machinery has, on a considerable scale, been set up for the purpose of facilitating orderly cultural interchange and generally promoting better knowledge and understanding among the peoples of the Americas.