Mr. KILROE. Oh, no. Let us answer one question at a time. Mr. MCCLURE. For the profits of the publishers or manufacture over there? Mr. KILROE. The answer to that is that we would still have or reciprocal copyright relations. Mr. MCCLURE. Quite right, but you will not keep the reciproca copyright relations? Mr. KILROE. But it is possible under the present form of the Ben Convention to destroy its very purpose by the quota laws principle isn't it? Mr. McCLURE. It is possible, of course, for other countriesMr. KILROE. And they do? Mr. MCCLURE (continuing). to pass laws that regulate exchang so that in fact you cannot bring money out of the countries. Mr. KILROE. Let us stick to one thing. Mr. MCCLURE. Yes, but there has been no special law passed in regard to copyrighted matters. Mr. KILROE. Oh, yes-motion pictures. Mr. MCCLURE. Well, possibly motion pictures, as such, but not copyrighted matters as such. Mr. KILROE. If they shut out the motion pictures, why can they not shut out books or fiddles or musical instruments or anything? Mr. MCCLURE. Conceivably they can, Mr. Kilroc. Mr. KILROE. Yes. Mr. McCLURE. But this particular convention does not affect that one way or the other. Your question has to do solely with this convention. With this convention, if they shut them out, at least we can protect our people from being pirated, back behind these customs walls around their frontiers, so that within the country there will not be money made out of the piracy of our American authors. Mr. KILROE. There wouldn't be any use-they would not let you do it in there. Mr. McCLURE. Of course, there wouldn't be any practical use from the point of view of profits of the author. There would be use from the point of view of the country's cultural relations protection, and eventually there would be use from the point of view of the author's profit, unless we suppose these exceptions which are usually classed as temporary and emergency matters, may go on forever. True, they may go on forever, but the great probability is they won't. Then we would have protection, which we have lost, so that under your own hypothesis we are better off with the convention than without it. That is all I am trying to say. Mr. KILROE. No; I still say the convention does not add anything to it, because we still get our protection the other way. Now, we will go up to Canada, where Canada passed the law, there, practically taking away copyright protection from performing societies. That is so, is it not? Mr. MCCLURE. I do not know, sir, but I do know this that the copyright convention does not affect that situation one way or the other. Mr. KILROE. It should. If you get copyright protection, what good is it if the country has the right to suspend the law of infringement until you do certain things? Mr. McCLURE. Simply because the copyright convention does not appear to be a universal world control, that is hardly an argument against the copyright convention for what it will do, is it? Mr. KILROE. Just what protection can the present convention insure? Mr. MCCLURE. The present convention does give augmented protection. It may not give protection in the particular phases you pointed out. Mr. KILROE. It did not, in Canada? Mr. FULTON BRYLAWSKI. Mr. Chairman, may I ask Dr. McClure a question? Senator THOMAS of Utah. Yes, sir. Mr. FULTON BRYLAWSKI. There is one thing I would like to have the chairman understand. I want to repeat. Dr. McClure, you have spoken about the piratical reproductions of books by photographic processes in China. China is not a member of the Bern Convention? Mr. McCLURE. It is not; no. Mr. FULTON BRYLAWSKI. Hence I assume that I would be right in assuming that whether the United States entered the Bern Convention or not it still would not have any piratical repercussions in China, which is not a member of the convention? Mr. KILROE. He has already answered that. Mr. McCLURE. I would say, Mr. Brylawski, that when the United States becomes a party to the Bern Convention, it will be the established purpose of the Government of the United States and the definite policy about copyright. When the United States Government has a definite policy as to copyright, then its ability through diplomatic processes and otherwise will be augmented all around the world, and other countries will be immeasurably encouraged to enter into the copyright convention, because other countries, seeing that this country has become a party, will be more likely to join. Mr. FULTON BRYLAWSKI. You have not allowed me to finish. Mr. McCLURE. I beg your pardon, sir. I thought you had finished. Mr. FULTON BRYLAWSKI. And that these piratical copies are being distributed in South America. Mr. McCLURE. We understand that they are. Mr. FULTON BRYLAWSKI. Now, we also understand that there are just two South American countries, the little island of Haiti and Brazil, which are members of the Bern Convention. Mr. McCLURE. That is true, so far as my information goes. Mr. FULTON BRYLAWSKI. And that the following countries are members of the Buenos Aires Convention, to which the United States is a party. I will read them: Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru, and Uruguay. Mr. MCCLURE. Yes. Mr. FULTON BRYLAWSKI. And to that I wish to add, to my own personal knowledge, that the Argentine protects the works of American authors. Now, under the provisions of article 3 of the copyright convention between the United States and South American countries it is provided: The acknowledgment of a copyright obtained in one State in conformity with its laws shall produce its effects by full rights in all the other States, without the necessity of complying with any formality, providing always there shall appear in the work a statement that states the preservation of the copyright. Mr. MCCLURE. Yes. Mr. FULTON BRYLAWSKI. So here we have I think 18 of the prinpical South American countries, members of a convention to which the United States is a party, which agree to fully protect American copyrights in those countries without formalities, so I was wondering whether you can explain how these piratical copies which are infringing copies are distributed in these South American countries? Do you mean to say that the authors do not attempt to protect their rights, or do you mean to say that those rights have been denied under this convention? Mr. MCCLURE. That introduces a rather long story, Mr. Brylawski that I shall be very glad to attempt to answer. In the first place, the Buenos Aires Convention to which you refer, and to which there are 15 or 16 parties, among the American republics, does not, as does the Bern Convention, statedly give copyright without formality. It does reserve at least one formality. Mr. FULTON BRYLAWSKI. Notice only? Mr. McCLURE. Notice only, which is of course an easily complied with formality; but our experience is in dealing with the situation in Latin America that the fact that that is there opens up a considerable field of uncertainty. We do know it is very difficult to get protection under it for our people. Mr. FULTON BRYLAWSKI. Without taking up the time of the committee and your time, I just want to state, and then I am through, Mr. Chairman, if you will pardon the interruption Mr. MCCLURE. I will. Mr. FULTON BRYLAWSKI. That I have on a great many occasions found it necessary to go to the Copyright Office to get a certificate of copyright registration, and have it authenticated by the State Department and legalized by the consul of the country in which it is to be used, and to send it down there. Mr. McCLURE. Quite right. Mr. FULTON BRYLAWSKI. And we have never found any difficulty in restraining infringement as soon as we establish the fact that we do have a copyright in those countries. Mr. McCLURE. Yes, you can do that, Mr. Brylawski, and any other American owner of a copyright can do it, likewise, but our experience is very clear to the effect that Americans in general do not do it because it is too expensive to handle. We cannot expect the author whose financial resources are not great to do that. Mr. FULTON BRYLAWSKI. Why would it be cheaper under the Bern Convention? Mr. MCCLURE. Because the Bern Convention requires definitely there shall be an automatic copyright. Mr. FULTON BRYLAWSKI. But they would still have to bring the action to protect their remedy? Mr. MCCLURE. Yes; but they will be very much less likely to have to bring actions for violations of copyright if the law is more certain as to what their copyrights are. Mr. FULTON BRYLAWSKI. I think the section of article 3 is as definite as anything can possibly be. I am through. Mr. MCCLURE. Mr. Brylawski, you know perfectly well that our own courts have gotten mixed up on this Buenos Aires Convention in the Portuondo case, and if that is true in the courts here in trying to deal with the uncertainties of this convention, we will hardly expect that all the South American courts have been able to interpret it just as you and I would like. Mr. FULTON BRYLAWSKI. We are taking too much time. Mr. MCCLURE. Now, we would like to have a court define more clearly some questions of international law, such as the Bern Convention furnishes. We would like to see that adopted by the American republics generally. Senator THOMAS of Utah. Mr. Kilroe, you had a statement? Mr. KILROE. Mr. Chairman, I would like to present this statement. and have it made part of the record. Part of it has been covered by the discussion had with the witness. Senator THOMAS of Utah. It will be included in the record. (The statement submitted for the record by Edwin P. Kilroe is as follows:) STATEMENT OF EDWIN P. KILROE BEFORE THE SUBCOMMITTEE OF THE COMMIT- The position of the motion-picture industry of the United States on the adherence of the United States to the Berne Convention in its present form has often been stated before the legislative committees of Congress. The position was stated on: (1) May 29, 1934 before a subcommittee of this committee (Committee on Foreign Relations, U. S. Senate) before Senator Duffy, chairman (see hearings before the Committee on Foreign Relations, U. S. Senate, on S. 1928-A bill to enable the United States to enter the International Copyright Union, May 28-29, 1934, pt. II, pp. 68-77) and (2) April 13, 1936 before the Patents Committee of the House of Representatives (see hearings before the Committee on Patents, House of Representatives, April 13, 14, 15, 1936, p. 1026) and (3) Before Senator Duffy's committee on April 12, 1937 (see International Convention of the Copyright Union-hearings before a subcommittee of the Committee on Foreign Relations, U. S. Senate, April 12-13, 1937, pp. 1-27, 47–50). To the objections made in the past to our adherence to the Bern Convention, there is the added objection of adhering to the Bern Convention at a time when the world, with the exception of the Western Hemisphere, is swept with war, destruction, and hatred. It is too fantastic to give any serious thought to the adherence of the United States to the Bern Convention at this time. If we enter now, for all practical purposes, we will have as dominating partners in the adherence Hitler and Japan. England now engaged in a death struggle for her life— a struggle in which she may not survive can give little time and attention to the affairs of the Bern Convention and the proper administration of its tenets. With Japan and Hitler in control of the convention, American authors cannot hope for any protection in countries controlled by Hitler and his superscoundrels. I The United States should not enter the Bern Convention until our domestic copyright laws are changed to meet the new conditions which will be brought about by adherence. If we adhere to the Bern Convention, the adherence would supersede our present Copyright Act or any other act of Congress which might be in conflict with the terms of the Bern Convention. Article VI of the Constitution of the United States provides: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." The Bern Convention is a treaty which contains stipulations that are selfexecuting and upon adherence by the United States, the provisions of the treaty have the force and effect of an enactment by Congress superseding all prior legislation which might be in conflict with any of its terms. (See opinion of United States Attorney General Caleb Cushing, February 16, 1854.) This would create the utmost confusion and chaos in the field of copyright. Present copyright proprietors would not know the effect the adherence had upon their rights until after long and expensive litigation had been concluded. The treaty of Buenos Aires was signed on August 11, 1910, ratified by the United States Senate, February 15, 1911, and proclaimed by the President of the United States on July 13, 1914. This convention contains two important articles, as follows: "ARTICLE 3. The acknowledgment of a copyright obtained in one state, in conformity with its laws, shall produce its effects of full right in all the other states without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right. "ARTICLE 6. The authors or their assigns, citizens, or domiciled foreigners, shall enjoy in the signatory countries the rights that the respective laws accord, without those rights being allowed to exceed the term of protection granted in the country of origin. "For works comprising several volumes that are not published simultaneously, as well as for bulletins, or parts, or periodical publications, the term of the copyright will commence to run, with respect to each volume, bulletin, part, or periodical publication, from the respective date of its publication." The President of the United States in his proclamation of July 13, 1914, repeated the convention verbatim and added: "Now, therefore, be it known that I, Woodrow Wilson, President of the United States of America, have caused the said Convention to be made public to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof." Notwithstanding this proclamation, the United States District Court for the Southern District of New York on May 13, 1937, denied protection to a musical work written by a citizen of the Dominican Republic (Portuondo v. Columbia Phonograph Company, Inc., et al., 36 United States Patents Quarterly 104) on the ground that a Presidential proclamation had not been issued pursuant to our copyright law concerning mechanically recorded music. The Federal judge based his decision on an opinion rendered by the Attorney General that under the American copyright law "there must be a separate proclamation of the existence of reciprocal conditions as to mechanical reproduction." The opinion_of_the Attorney General in question was rendered on May 6, 1911, by J. A. Fowler, Assistant Attorney General under Attorney General George W. Wickersham (29 Opinions of the Attorney General, p. 64). It is apparent that the Federal Judge was misled by the opinion of the Assistant Attorney General; the opinion had no bearing whatever on the convention and related entirely to the provisions of the Copyright Act. The President of the United States had on July 13, 1914, issued a proclamation stating that the provisions of the Buenos Aires Čonvention were in full force in the United States. It is quite clear that the plaintiff was denied protection on a right that was clearly his under the convention; nevertheless, the State Department has not taken a single step to correct this injustice. No recommendation has been made to Congress by the State Department to remedy this defect. It is fair to say that no one can tell with any degree of precision the rights in the United States of the authors of the countries that are signatory to this treaty. This case is cited as an example of the confusion, chaos and injustice that may arise if the United States adheres to the Bern Convention before its own laws are changed. I should like to have incorporated in the record and marked exhibit A the pleadings and decisions in this litigation. The immediate adherence of the United States to the Bern Convention without reservations would take numerous copyrighted works out of the public domain and throw them in the private domain. This will be disastrous to those who have expended large sums of money on public domain works. Some provision should be made in our local laws to give protection to our citizens that may find themselves in this unfortunate position. |