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The Duffy bill (S. 3047) introduced on June 14, 1935, contained the following reservation:
“8 (c). Authors within the jurisdiction of any foreign country that is now or may hereafter be a party to the Convention for the Protection of Literary and Artistic Works, whether their works are unpublished or published for the first time in one of the countries parties to said convention, shall have all the rights now accorded or which may hereafter be accorded by law to nationals of the United States; and the enjoyment and the exercise of such rights shall not be subject to any formality: Provided, That as to copyrights in works not previously copyrighted in the United States no right or remedy given pursuant to this Act shall prejudice lawful acts done or rights in or in connection with copies lawfully made, the making of additional copies or any other continuance of business undertakings or enterprises lawfully undertaken within the United States prior to the date on which the adherence of the United States to said Convention for the Protection of Literary and Artistic Works becomes effective; and the author or other owner of such copyright or persons claiming under him shall not be entitled to any remedy against any person who has, prior to such date, taken any action in connection with the exploitation, production, reproduction, circulation, or performance (in a manner which at the time was not unlawful) of any such work whereby he has incurred expenditure or liability; nor shall rights in respect of the further use of copies or other forms of reproduction be in any manner impaired.”
Our adherence to the Bern Convention should be delayed until a new Bern Convention is drafted. Under the terms of the Rome Convention of 1928, a conference was to be held in Brussels in 1935 for the purpose of revising the convention. This was delayed until 1936 and again to 1937 in order to give the proper appraisal to a universal convention which would supersede the Bern Convention. The universal convention would include the underlying principles of the followng conventions:
(1) Bern Convention, Berlin 1908, Rome, 1928.
The second World War has interrupted this work and there is little or no prospect of a conference being held within the next few years. There are practically in existence now four conventions:
(1) Convention of 1886—-certain of the countries joined with reservations.
(4) Rome Convention in 1928—-reservations of three prior conventions might be carried by the signatory countries into the Rome Convencion.
(5) At the proposed conference, if and when held, still a fifth convention might be created.
Some of the countries are bound by the convention of 1886, others by the convention of 1896, others by the convention of 1908 and others by the convention of 1928. If the United States adheres at this time, it would be bound by the rules of the Rome Convention of 1928 and would not have the advantages of the reservations made by the other members prior to the Rome Convention.
There is now pending before the Brussels conference whenever it may be held some startling recommendations so far as the motion picture industry is concerned. These are:
(1) Oral copyright.
The moral rights of authors has been fully discussed at the hearings had on the Duffy copyright bill in previous years. However, there is a tendency now to extend the moral rights clause far beyond its present limitations. It is intended to have the moral-rights clause apply not only to the living authors but also to the dead authors and to works in the public domain.
The doctrine of the moral rights of authors had its origin in France; traces of it may be found in the discussions and writings relating to copyright legislation passed in France in 1791 and 1793, while France was in the throes of the French Revolution. The doctrine was revived some 50 years ago, and since that time has been actively discussed in various countries of continental Europe.
An unsuccessful attempt was made to incorporate the doctrine in a modified form at the Berlin Convention of 1908, and while the doctrine had its origin in France, Italy led the fight for the recognition of the doctrine in the convention at Rome in 1928, where the doctrine was introduced in the following form:
“ARTICLE 6 BIS
“(1) Independently of the author's copyright, and even after transfer of the said copyright, the author shall have the right to claim authorship of the work, as well as the right to object to any distortion, mutilation, or other modification of the said work which would be prejudicial to his honor or reputation.
“(2) The determination of the conditions under which these rights shall be exercised is rezerved for the national legislation of the countries of the Union. The means of redress for safeguarding these rights shall be regulated by the legislation of the co intry where protection is claimed.”
It is to be noied that while the doctrine is described in paragraph (1) of article 6 bis of the Rome Convention, nevertheless, it is left to the local laws of each country to enforce this doctrine.
Its inclusion in the convention was the result of a compromise; its effect on the exploitation of copyrighted material was not fully appreciated at that time. The feeling is general now that the doctrine has been carried too far and that it has no place in a copyright convention; in fact, the Incorporated Society of Authors, Playwrights, and Composers of England feels that the paragraph relating to moral rights should be entirely removed from the Bern Convention. On the other hand, France and Italy believe that the principle should be recognized by incorporating it into the conventions with modifications.
We believe it is the consensus of opinion now in Europe that there should be a working arrangement between the creators of copyrighted material on the one hand and commerce and industry on the other, so that copyrighted works may be exploited without undue hindrance. It is now conceded that an author or composer should be permitted to bargain away his moral rights and once he accepts a consideration for this bargain and enters into an arrangement he should be held to this bargain in all countries of the convention, and if requested by the United States as a condition of adherence to the convention, this modification will be incorporated into the convention.
Under the present convention the moral rights of the author are inalienable; he may enforce these rights after he has made an assignment of them for a valuable consideration.
The right to make changes in an author's work is of the utmost importance to the motion-picture industry. A dramatic play or story is usually written with an appeal to a particular class. A motion picture is intended to have entertainment value for the great masses and its financial success depends upon its mass psychology entertainment value; the wider the appeal the greater its value. A limitation on the right to change the plot, theme, sequence, and description of the characters in literary works would bring havoc to the film industry.
The principle of moral rights was dealt with in the Duffy copyright bill as follows:
“Independently of the copyright in any work secured under this act, as amended, and even after assignment thereof, the author retains the right to claim the authorship of the work as well as the right to object to every deformation, mutilation, or other modification of the said work which may be prejudicial to his honor or to his reputation: Provided, however, That nothing in this paragraph shall limit or otherwise affect the right of full freedom of contract between the author of a work and an assignee or licensee thereof, or invalidate any express waiver or release by the author of any such rights or of any remedies or relief to which he might be entitled in consequence of a violation thereof, and the assignee or licensee of the author's moral right may, with the author's permission, make any change in the work which the author himself would have had a right to make prior to such assignment.
“In the absence of a special contract, or notice by the author at the time he consented to the use of his work, the necessary editing, arranging, or adaptation of such work for publication in book form or for use in a newspaper, magazine, or periodical, in broadcasting, in motion pictures, or in mechanical or electrical reproduction, in accordance with customary standards and reasonable requirements, shall not be deemed to contravene the right of authors reserved in this section; provided that nothing in this section shall be deemed to alter or in any manner impair any right or remedy of an author at common law or in equity.”
Without the proper local legislation, these suggestions if incorporated into the Bern Convention might be disastrous to the motion-picture industry.
The English Board of Trade, an arm of the English Government, in 1936 instructed its representatives to the Bern Convention to change the clause on publication to meet the objections raised by the courts in Holland in the Sax Rohmer and other cases by inserting in article 4, subdivision 4 of the Bern Convention:
“That a work shall be considered to have been ‘published' in a country if copies of the work have been made available to the public in that country, provided there is at the time a bona fide intention on the part of the publisher to supply any demand of the work by the public if and when such demand shall arise.”
The English Board of Trade also made drastic recommendations affecting performing rights societies and other monopolies on rights in copyrighted works, as follows:
“(4) Each country of the Union may, by its national legislation, provide for the regulation of the exercise of any of the rights covered by this article in respect of so great a number of such works that such person or body of persons is able to, .and does :
“1. Impose unduly onerous charges or conditions for permission to exercise any such rights; or
“2. Unreasonably refuse to grant any such permission; but no such legislative regulation shall prevent the payment of an equitable remuneration for any dealing with such works in any of the ways covered by this article, such remuneration to be fixed, failing agreement, by the competent authority in the country concerned.
“(5) For the purposes of the preceding paragraph, a musical or dramaticmusical work shall be considered to include the combination of the music with any words so closely associated therewith as to form part of the same work.”
Great stress is placed by the State Department upon the action of the courts of the Netherlands in refusing to recognize as a "published work” within the meaning of that term as used in the Bern Convention, a work that was published in the United States and had simultaneous publication in a Bern Convention country. Tne attitude of Holland is not surprising; the Netherlands has never been very strong for copyright, either domestic or international. On February 23, 1895, our Legation at The Hague wrote to Secretary of State Walter G. Gresham, .as follows:
“In my last interview on the subject with the Minister of Foreign Affairs, His Excellency stated that there existed no copyright whatever in this country (Holland), public opinion being adverse thereto and hence the prospects of international copyright law were very slight indeed.”
Holland did not join the Bern Convention until 1914.
In the Sax Rohmer case the courts of Holland denied copyright protection to a work published simultaneously in the United States and Canada, and the same course was followed in the action brought by Margaret Mitchell, author of the well-known novel Gone With the Wind.
In 1938 a Dutch motion-picture-producing company made a motion picture based upon the novel and the play entitled Daddy Long Legs, written by Jean Webster. Twentieth Century-Fox Film Corporation, the owner of the world-wide silent, sound, dialogue, and talking motion-picture rights in this novel and play, instituted an action in Holland, asserting that the novel and the motion picture were protected in Holland because of reciprocal copyright relations between the United States and Holland. On April 9, 1910, the President of the United States in a proclamation said: “Whereas satisfactory evidence has been received that in
the Netherlands and possessions
has permitted to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of it hose countries
and stated that the citizens or subjects of Holland are entitled to the benefits of our Copyright Act with the exception of the mechanical clause. On February 26, 1923, the President of the United States issued a proclamation concerning the mechanical clause, extending the protection of 1 (e) of our Copyright Act to works by authors of the Netherlands. The proclamation stated:
“Whereas the Government of the Netherlands declared on October 2, 1922, that under the laws in force in that country citizens of the United States may claim copyright in the Netherlands and possessions with respect to their musical works made or published for the first time since the date of this declaration, which copyright includes the exclusive right to manufacture rolls, discs and other objects for the mechanical reproduction of a work in whole or in part
Relying upon these proclamations, Twentieth Century-Fox Film Corporation instituted its action in the Netherlands. The Dutch Minister of Foreign Affairs took a special interest in the case and discovered that on November 2, 1926, the Dutch Chargé d'Affaires in Washington delivered to the Solicitor General in Washington a memorandum withdrawing the declaration of October 2, 1922, and stating expressly that the works of American authors are not protected in Holland. A search was made for this document in the Department of State without success. However, the original memorandum was located in the Dutch Embassy with an endorsement on its back, stating that a copy was delivered to the Solicitor General of the State Department on November 2, 1926; in 1926 the Solicitor of the State Department was sometimes known as the Solicitor General. There is no record in the Department of State or in the office of the United States Solicitor General showing that the memorandum had been delivered. Notwithstanding the discovery of this document in 1940 by the State Department, no action has been taken by the State Department to cancel and annul the Presidential proclamation concerning our copyright relations with Holland.
I desire to have incorporated in this hearing a copy of this correspondence which will be marked “Exhibit B."
IV The United States should not adhere to the Bern Convention until the Bern agreement has been revised. There is a growing sentiment among the creators and users of copyright in Europe that the Bern Convention is outmoded and does not fully serve the purpose for which it was created. The feeling is strong that the convention should be revised so that the rights and obligations are fully and clearly defined in the document and nothing left to the national laws of each country. The rights should be concisely set forth in the convention and these rights should be enforced in every country of the convention; under the present convention, certain rights and remedies are left to the national laws of the countries in which these rights and remedies are claimed. For example, article 4 of the Rome Convention provides:
“Consequently, apart from the express stipulations of the present convention, the extent of protection, as well as the means of redress secured to the author to safeguard his rights, shall be governed exclusively by the country where protection is claimed."
And subdivision 2 of article 6 of the convention:
“The determination of the conditions under which these rights shall be exercised is reserved for the national legislation of the countries of the union. The means of redress for safeguarding these rights shall be regulated by the legislation of the country where protection is claimed.”
This weakness in the convention is illustrated in the decisions of the courts of Holland in the Rohmer and Gone With the Wind cases.
In August 1939 I conferred with some of the leading students of copyright in Europe. All seem to think that a drive should be made for a Universal Convention and when the Universal Convention became a fact, the Berne Convention should be abandoned. Mr. DeSanctis of Rome, the official copyright adviser to the Italian Government, expressed the opinion that the establishment of a Universal Convention would be an easier task than to revamp the Berne Convention.
Our adherence to the Berne Convention in the present unsettled condition of the world would not benefit a single iota the American authors and American copyright proprietors. Their rights abroad are as fully protected now under our treaties and reciprocal copyright relations with foreign countries as they would be if the United States adhered to the Berne Convention.
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK Juan Luis Portuondo, plaintiff, against Columbia Phonograph Company, Inc., and
Pedro Flores, defendants Porfirio Golibart, a citizen of the Dominican Republic, wrote a musical composition in 1928 entitled “Fellita” which he registered on August 6, 1928, in the office of the Secretary of State of the Public Education and Fine Arts of the Dominican Republic.
Thereafter, Porfirio Golibart assigned the composition to the plaintiff Juan Luis Portuondo.
In 1935, defendant Pedro Flores published a composition entitled “Carmelita”; this composition was apparently recorded by the Columbia Phonograph Company.
Plaintiff alleges that the composition “Carmelita” infringes the composition “Fellita."
The plaintiff claims copyright protection in the United States on the ground that the Dominican Republic is a member of the Buenos Aires Convention, August 11, 1910, and that the United States of America is a party to that Convention.
The defendant moved to dismiss the complaint on the ground
(1) That the Buenos Aires Convention did not extend protection to mechanical reproduction.
(2) That the complaint did not allège that the statutory requirements of the copyright laws of the Dominican Republic were fully complied with.
(3) That the complaint did not allege a reservation of the alleged property rights.
(4) That a copy of the work was not attached to the complaint as required by Rule 2.
The Court held that the plaintiff must look to the laws of the United States for the enforcement of his rights and under our Copyright Act reciprocal copyright relations are determined by proclamations by the President; in this case the complaint did not allege that a proclamation had been issued. The complaint was dismissed.
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
Juan Luis Portuondo, Plaintiff vs. Columbia Phonograph Company, Inc., and
Pedro Flores, defendants
NOTICE OF MOTION
SIR: PLEASE TAKE NOTICE that upon the Bill of Complaint in the aboveentitled action, the undersigned will move this court at a motion part thereof to be held in and for the Southern District of New York at the Federal Courthouse, Foley Square, Borough of Manhattan, New York City, on the 19th day of January 1937, at 10:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order granting judgment dismissing the Bill of Complaint, on the ground that said complaint does not state facts sufficient to constitute a cause of action, and for such other and further relief as to this court may seem just and proper together with costs of this motion.
Dated New York, N. Y., this 11th day of January 1937.
(Signed) HERBERT A. HUEBNER,
Attorney for Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Juan Luis Portuondo, Plaintiff, against Columbia Phonograph Company, Inc.,
and Pedro Flores, defendants DEFENDANT'S MOTION TO DISMISS BILL OF COMPLAINT Now comes the defendant, COLUMBIA PHONOGRAPH COMPANY, INC., and moves this Honorable Court to dismiss the bill of complaint with costs to defendant on the ground that the bill of complaint, which purports to set forth an action in