whether or not it should be put in. If you decide to put it in, I think it would be much wiser not to couple it with prints and pictorial illustrations at all, but to make a separate classification. And if you do decide, after consultation, to put lithographs in, I think that that will also require the word "posters" to be put in. I personally do not believe that either one is necessary to be defined separately.

(Thereupon the committee adjourned until to-morrow, Friday, June 8, 1906, at 10 o'clock, a. m.)

COMMITTEE ON PATENTS,

HOUSE OF REPRESENTATIVES,
Friday, June 8, 1906.

The committee met at 10 o'clock a. m., conjointly with the Senate Committee on Patents.

Present: Senators Kittredge (chairman), Smoot, and Latimer; Representatives Currier, Campbell, Chaney, McGavin, Webb, and Southall. Mr. CURRIER. Mr. Solberg, yesterday, when Mr. Cutter was testifying, I asked him this question: "Can you import two copies of an unauthorized edition?" He said, "Yes, sir." I asked, "Can you do that to-day?" He answered, "Yes, sir; we can now." I asked, then, "A fraudulent reprint, for instance?" "Yes, sir." "There is absolutely no restriction, as you understand it, to-day?" "There is no restriction at all, as I understand it, to-day."

I would like to ask you if you understand the practice to be as Mr. Cutter states?

Mr. SOLBERG. The prohibition of importation was introduced into the copyright law by the act of March 3, 1891, and it was a prohibition of importation additional or extra to that which is supposed to have existed in copyright law against any unauthorized copies. The law as it stood prior to that provided that these unauthorized copies could only be permitted importation upon the consent of the copyright proprietor. That is, the author himself or the copyright proprietor could import even a fraudulent copy.

Mr. CURRIER. That was prior to 1891?

Mr. SOLBERG. Yes. But in the act of March 3, 1891, it is stated, in connection with the typesetting clause, that copies of books not printed from type set within the limits of the United States or from plates made therefrom shall not be imported; and then certain exceptions are introduced, and one is an exception directly on behalf of the individual buyer. The other exceptions are on behalf of libraries, which consist in paragraphs of the free list of the tariff act taken over into the copyright law. It is therefore a matter of interpretation of the law what the interpolation of these exceptions means. Now, I can not authoritatively give that interpretation.

Mr. CURRIER. I would like your understanding of the practice since the law of 1891.

Mr. SOLBERG. Perhaps the best light I can throw on that is the statement that there is an opinion from the Department of Justice, the Attorney-General, that the exceptions would not bar an unauthorized

copy.

Mr. CURRIER. Then you understand that Mr. Cutter is right in what he says?

Mr. SOLBERG. I would understand it so far as that decision or opinion would be supported and would be taken as final.

Mr. CURRIER. Is there any opinion in conflict with that?

Mr. SOLBERG. There are a number of opinions, none directly in conflict; none directly upsetting that.

Mr. CURRIER. Do you know what the practice of the Treasury Department is now?

Mr. SOLBERG. No; I am not competent, I think, to say; but Mr. Montgomery could answer that question if he is here, because it comes under the collector of customs.

Mr. CURRIER. If there is any gentleman present who has information on that subject and can answer that question we would be glad to hear from him.

Mr. PUTNAM. Mr. Montgomery was here yesterday; I think he will be here a little later. I think it might be helpful, if you will permit me to suggest, Mr. Chairman, as pertinent (it goes beyond your question, but is relevant in connection with it), as to whether such importation is, according to the register's information of foreign legislation customary abroad-such privilege of importation of an unauthorized foreign edition of a book printed in the foreign country under domestic law there?

Mr. CURRIER. My purpose in seeking this information is to establish the fact, if it be a fact, where you provide that the importation must be an authorized edition, whether that is a change in law or not, a change in practice, whether it is an additional restriction. That is what I was trying to get at. I have asked a number of times whether subdivision E, at the top of page 16, "To any book published abroad with the authorization of the author or copyright proprietor,” etc., changes existing law and is an additional restriction upon importation; that is all.

Mr. SOLBERG. You see, the question is difficult of answering categorically, Mr. Chairman, because it is a question of the interpretation of a complex statute.

Senator SMOOT. From the present interpretation of the law there is not any doubt in the world, then, but what this is a restriction?

Mr. SOLBERG. I should say that this act attempts to make clear that all fraudulent copies are barred.

Senator SMOOT. That is a restriction, then?

Mr. SOLBERG. As a protection of the copyright.

(The following communication from the register of copyrights printed in connection with his above remarks by direction of the chairman:)

LIBRARY OF CONGRESS, COPYRIGHT OFFICE,
Washington, D. C., June 15, 1906.

DEAR SIR: I ask to be allowed to file for the printed report of the hearing on the copyright bill the following, in addition to my answers to the questions you asked me on Friday, June 8, in relation to the importation of copies of unauthorized editions of American books:

1. It is fundamental to the protection of copyright that all unauthorized reprints of copyrighted books shall be prohibited importation into the country of origin. It is therefore provided in all foreign copyright legislation that such unauthorized copies shall be prohibited importation. Such copies are treated as fraudulent copies, and I know of no provisions in any foreign legislation which permit importation of unauthorized copies either by individuals, educational or other institutions, or libraries.

In the copyright legislation of the United States prior to 1891, the provisions prohibiting importation dealt only with unauthorized copies and these were prohibited importation, except with the direct consent in writing of the author or copyright proprietor.

2. The act of March 3, 1891, introduced an additional prohibition of importation, namely, of copies of authorized editions of foreign copyrighted books, or of authorized foreign reprints of American copyright books, unless printed from type set within the limits of the United States or from plates made therefrom.

To this prohibition of importation certain exceptions were enacted in favor of private book buyers, educational institutions, and libraries; and some paragraphs of the free list of the act of October 1, 1890 (permitting importation without the payment of duty) were taken over into the copyright law to insure that the articles named in these paragraphs should be included in the exceptions to the prohibition of importation of copies of authorized editions of books.

It was not supposed that Congress intended that these exceptions to the prohibition of importation should apply to unauthorized editions, but upon the matter being submitted to the Department of Justice an opinion was filed by the SolicitorGeneral ruling that the exceptions did extend to unauthorized reproductions of American books. (See Opinion of Holmes Conrad, April 19, 1895; Synopsis of Treasury Decisions for 1895, pp. 495-498.)

3. In the provisions of the new bill dealing with importation a careful distinction has been maintained between unauthorized (fraudulent) copies and copies of authorized editions not printed from type set within the limits of the United States.

In the case of all unauthorized reprints of books the prohibition of importation is absolute, and any such copies introduced into the United States are subject to seizure, forfeiture, and destruction. (See sections 26 to 29 of the bill.) In the case of copies of authorized editions not set in the United States, such copies if imported are seized and exported, but not destroyed. (See copyright bill, sec. 31.)

All exceptions, therefore, to the prohibition of importation of authorized editions in the bill concern only authorized copies, and there is no permission in favor of any one to import any unauthorized, pirated copies.

Very respectfully, yours,

Hon. FRANK D. CURRIER,

THORVALD SOLBERG,
Register of Copyrights.

Chairman House Committee on Patents, House of Representatives.

The CHAIRMAN. It seems that a Mr. Davis, who represents some manufacturers of musical devices, does not understand that he is to have any part of the hour assigned to the gentlemen mentioned yesterday. Is Mr. Davis here?

Mr. PUTNAM. I think Mr. Davis has not yet come in.

With your permission, Mr. Chairman, I will state as to the letter of Mr. Wilcox, to which I referred yesterday in connection with the suggestion from Mr. Malcomson as to the need of including lithographs in the specification of subject matter, that the passage which I should have read if I had had the letter here (it was with the stenographer) was this:

*

* *

As

I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing, so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it. affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me, and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.

The copyright office has received a communication from Mr. Fritz von Briesen, requesting that in section 5, after line 7, a further subdivision, "Miscellaneous," be inserted, and that the following be added:

And provided furthermore, That a series of maps, drawings, photographs, prints, and pictorial illustrations, and labels and prints relating to articles of manufacture,

and other subjects of copyright of an artistic nature, constituting a unit or assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, should the applicant so elect, whether or not they are actually joined by binding, printing on the same sheet of material, or otherwise.

I suggest this, Mr. Chairman, as appropriate to be inserted in connection with the discussion of the fees yesterday by Mr. Remicher. It bears on that point.

The CHAIRMAN. That will go in the record.

Mr. PUTNAM. I handed in, I believe, yesterday, a statement in writing from Mr. A. W. Elson, of Boston, making certain specific recommendations for changes. He telegraphs me, "Written presentation sent you fully covers my view."

That is in answer to an inquiry as to whether he wished to have a hearing before the committee.

I have received a communication from the International Brotherhood of Bookbinders, as follows:

WASHINGTON, D. C., June 7, 1906.

As president of Local No. 4, of Bookbinders' Union, of this city, and representative of the International Brotherhood of Bookbinders of the United States, I would be pleased to be heard on the Currier copyright bill to-morrow, immediately after Mr. J. J. Sullivan has spoken on bill. I will not consume more than ten minutes, and possibly less than that. I will be in attendance at the hearing.

Very respectfully,

J. L. FEENEY.

The office has received, since the bill was introduced, from the Music Publishers' Association, certain proposed amendments, additional provisions in connection with the protection of the copyright on musical compositions. These, I should advise the chairman, have not been communicated to the gentlemen who are to speak in opposition to any of those provisions. They have not had them, therefore, before them in preparing their case this morning at all; and while Í have manifolded copies here which are at their disposal, it is to be understood that these were not communicated to them. On the other hand, Mr. Serven, who in behalf of the music publishers handed these to me, states (if I am not correct, Mr. Serven, you will correct me) that these contain additional specifications but in the same general direction. That is all.

Mr. A. R. SERVEN. That is correct, Mr. Librarian, and simply to conform subsection G of section 1 to comply with the recent decision of the United States circuit court of appeals in the White-Smith v. Apollo Company case. The same idea is represented simply. The case was decided, of course, since the bill was printed.

The CHAIRMAN. Mr. Putnam, just call our attention to the proposed change.

Mr. PUTNAM. This is contained in a written communication, and it will really take less time to read it from the communication.

The CHAIRMAN. Yes.

Mr. PUTNAM. (Reading:)

Section 1, subsection G, should be amended to read as follows:

"To make, sell, distribute, or let for hire any device, contrivance, or appliance adapted in any manner whatsoever when used in connection with any mechanism to reproduce to the ear or to cause the said mechanism to reproduce to the ear the sounds forming or identifying the whole or any material part of any work copyrighted after this act shall have gone into effect, or by means of any such device, contrivance, appliance, or mechanism publicly to reproduce to the ear the whole or any material part of such work.”

Omitting the explanations, the next amendment will be as follows:

Section 3 should be amended to read as follows:

"That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, and the devices, appliances, or contrivances mentioned in section 1, subdivision (g) of this act, but without extending the duration of such copyright."

Section 23, subdivision ()

The CHAIRMAN. I suppose the other amendments are simply to follow if the first amendment is approved?

Mr. PUTNAM. If the first amendment is approved; that is my understanding.

Mr. SERVEN. Mr. Chairman, that is true with the exception of one amendment. The Musical Publishers' Association suggests that the same right of appeal and review in interlocutory judgments and orders should be provided for in the new bill as is provided for in the existing law. That is the only thing that is different.

Mr. HORACE PETTIT. Mr. Chairman, may I ask Mr. Serven whether he will add to his amended section 3 the clause which I suggested in my amendment to the original section 3? It would accomplish the same purpose as I had intended. My suggestion of amendment would also apply to your amended section 3, which adds:

And provided, That no devices, contrivances, or appliances, or dies or matrices for making the same, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright.

Mr. SERVEN. Yes, Mr. Chairman; I think that is only fair to the interests represented.

Mr. PETTIT. You accept that as an addition to your amendment? Mr. SERVEN. We are very glad to, indeed. We think that is perfectly fair.

Mr. CURRIER. A suggestion was made here the other day, the first day of the hearings, to strike out section 3, I think.

M. PETTIT Well, either that or that my amendment be added to it. Mr. CURRIER. Yes. Who was the gentleman who replied to you. Mr. PETTIT. Mr. Fuller, of New York.

Mr. CURRIER. I understood Mr. Fuller to say that the question of whether subsisting copyrights covered these mechanical devices was now in the court, and they thought the court might hold that such devices were now covered. If such should be the decision of the court, would it not prohibit the use of graphophone cylinders and records already made and in use, if they were records of music covered by a subsisting copyright, under that section 3?

Mr. PETTIT. If the decision of the court were such as to include talking-machine records or other sound records within the subsisting law, of course it would prohibit that.

Mr. CURRIER. Does any gentleman here think we ought to legislate along that line?

Mr. PETTIT. Not that I know of. I do not understand that they think so, unless Mr. Fuller was misunderstood.

Mr. CURRIER. That would prevent any boy or girl in the country who has bought records and who is using them to-day from using them. Immediately, I suppose, a warning circular would go out that they must not use those records and cylinders that they had bought in good