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If this protection is limited to this country, then this field, for some years to come, is going to be a very narrow one. We get no practical protection abroad now. You can not point out to me a single American art publishing house that has been able to maintain a large market abroad. Not one-and I am well acquainted with all of them and the reason why is that we need good protection abroad in the pictorial graphic arts.
Representative CURRIER. I do not quite follow you when you say you can not get protection over there.
Mr. LIVINGSTONE. I will explain that. At the present moment the American photographer can get no copyright protection for his photograph in England. The American illustrators, such as Gibson and Harrison Fisher, can get no protection for their drawings in England, unless those drawings are first published as illustrations in an English book.
Representative CURRIER. It appears, from your statement, that we are giving the citizens of certain foreign countries greater rights under our laws than they have given to us.
Mr. LIVINGSTONE. That is true in cases, and I would like to call your attention to it.
Representative CURRIER. I should be glad to have you elaborate on that point.
Mr. LIVINGSTONE. The point I intended next to speak of covers one. A similar condition of affairs exists in Canada. We are very close to Canada, and by reason of the similarity of taste, the American publications have a good chance of selling in Canada and England, and a somewhat less chance of selling on the Continent. In time the Continent will probably give us business as well.
If we go to England, at the present moment, and put anything on the market, the moment it is demonstrated that it is successful, the disreputable houses and there are houses which are not reputable, will kill the market for us.
I can speak from my own experience in one particular case where a series of plates were made several years ago for Canada, and about the time we had established some trade, piracy commenced; and finally we were obliged to give up the field altogether.
We want that field in Canada and in England, and we are shut out from it. We want a law here which will make it possible for the Canadian publishing houses which are reputable, and the English publishing houses which are reputable, to get protection here, because if we are not in a position to offer them that, we have no earthly show of getting them to change their laws, and permitting us to get such protection as will accomplish our purpose. have asked reputable foreign houses with regard to this matter, and they have said they would help us in their countries.
Representative CURRIER. Do such conditions prevail in any continental country?
Mr. LIVINGSTONE. The conditions are rather mixed on the Continent.
The CHAIRMAN. Do you know what it is in Germany?
Mr. LIVINGSTONE. I can not speak in regard to that offhand without referring to some memoranda I have.
Mr. PUTNAM. I think the designer is protected in Germany, irrespective of his nationality.
Mr. LIVINGSTONE. The designer is protected and the painter is protected, but I am not positive as to the American photographer, nor am I sure as to some special processes.
The CHAIRMAN. Can you include a statement with reference to that in your remarks?
Mr. LIVINGSTONE. A written statement.
The CHAIRMAN. Yes; we would like to have that included in your remarks.
Mr. LIVINGSTONE. I can show that they are protected there with reference to particular processes, as, for example, in photogravure. I can also show that, so far as other countries are concerned, which are subscribers to the Berne Convention, their photogravures and etchings enjoy protection.
You have given me a good deal of time, and I shall, in closing, merely call your attention to two other conditions. The purpose and the sole reason for including the manufacturing provisions in a copyright law is to protect American industries, and of course the value of that depends on the measure of protection you get. If you get protection by it which is effective, then you arrive at the result you are working for. If you do not get the protection you desire, then you put in very troublesome provisions which are now ineffective. I wish to cite a case to illustrate how the company with which I am connected suffers very severely from the importation of millions of lithographic cards which flood our market with the excess product of the German lithographic factories. Of course they are willing to dispose of them at very low rate after they have taken care of their home market.
Representative CURRIER. They sell abroad, then, for less than they do at home?
Mr. LIVINGSTONE. Yes. Now, they are debarred by the operation of the existing law from copyright protection, but it has not put a stop to their importation, and those who are manufacturing here are supposed to be protected.
Let me cite another case. At one time the continental companies used to produce all the playing cards for this country, or practically all. Do they do it now? No; the bulk of them are made in this country. What has made the difference? It is the effect of the protective tariff, under which a duty of 10 cents a pack and 20 per cent has been imposed, irrespective of the value of the pack. That duty has thrown the balance this way, and now that business is all practically done here, except for a few fancy sets.
If you will give us an adequate duty on the picture cards, we will take the business also; but we will never get it through a manufacturing clause in a copyright bill. If you enlarge that restriction in the graphic arts, I am very certain we will never get from Canada or England certain copyright provisions that we have been working for for some time.
My time is up, and, in closing, I want to say to the committee that this bill, as it is, is a very great advance over existing conditions, and we thank you for it.
The CHAIRMAN. I understand that Mr. Lucking wants to be allotted about five minutes in order to address the committee upon the penalty clause.
STATEMENT OF MR. ALFRED LUCKING, OF DETROIT, MICH.
Mr. Chairman, I represent the American Association of Directory Publishers of the United States. They desire, through me, to express their general satisfaction with the measure proposed.
We have attended the conferences, and while there are some portions of the bill to which we have expressed objections, we are prepared to yield all those objections for the general good, provided section 31 be so amended that a jail sentence may be imposed in proper cases on the willful pirate.
It would be a great protection for us if the prospect of a jail sentence was hanging over the head of every criminal infringer.
We do not object to the words "knowingly and willfully," which are found in the misdemeanor clause, as did one of the gentlemen who spoke to-day. The only thing we ask is that the sentence shall, in the discretion of the judge, include a jail sentence.
Representative CURRIER. I suppose an alternative sentence would be satisfactory.
Mr. LUCKING. I do not mean that a jail sentence must be imposed, but that there should be a provision for an alternative sentence.
Representative CURRIER. In the present copyright law there is no alternative sentence.
Mr. LUCKING. I do not understand that these words "knowingly and willfully" require anything more than any criminal law would require. In order to convict a person of a crime he must have a criminal intent. We are perfectly willing that those words should remain, because the ones we want to reach are the swindlers, who, knowingly, willfully and wickedly, with malice aforethought, appropriate the fruits of our labor and of our money.
After we have expended thousands of dollars, nearly all for wages, in the compilation of data and have produced it in the form of a book, is there any reason in the world why that investment should not be protected the same as any other kind of an investment in property, whether it be corn or wheat or oats or merchandise or any tangible thing?
We do not seek to reach any person who innocently appropriates our property or who mistakenly prints something which is copyright; but we do want to reach the willfully guilty person, against whom, under the law, the case must be made out beyond a reasonable doubt. The penalty is to be inflicted only in the discretion of the judge. An injunction is of very little value to us, owing to the peculiar reasons which pertain to our business. We can not prove our case until the piratical edition has been put on the market, for the reason that if two persons set out in good faith to produce a directory covering a given territory, if they do it well, will produce practically the same results. It is only by laying traps for the pirate that we succeed in catching him at all, and we can catch him only after he has reaped the fruits of his piracy.
We are assailed by organized gangs of swindlers and pirates, some of them with money, but most of them irresponsible. Some of them are backed by persons with money, who are not disclosed and whom we can not reach. Therefore damages can seldom be recovered to compensate us.
There has recently been a conviction at Akron, Ohio, of a person who had appropriated directory matter; but in that instance he was found guilty of forgery. That is, he took orders apparently for complimentary copies and then tore off a portion of the orders and printed in other matter over the signatures; so that was really forgery.
I have already pointed out that no harm can come to an innocent person by the insertion of this clause for which we ask, because it is only willful ones, who are proven guilty beyond a reasonable doubt, who are to receive such a sentence, and it is to be at all times in the discretion of the judge.
The benefit of this provision will be chiefly because it will serve to prevent infringement. Mr. Bronson Howard has stated that under the present statute protecting dramatists there has never been but one case in ten years where a person was prosecuted, because the very fact of the existence of a jail penalty has prevented piracy, whereas before that it was a daily occurrence.
I have been honored by a gentleman with a statement of the reasons which have been urged against the jail-sentence provision. It comes from a gentleman whom I know and whose name I can give to any member of this committee, but I do not wish to give it publicly. He gives the reasons which have been urged why a jail sentence should not be included, and I want to ask your attention while I read and briefly answer them. He says, first, that the bill as reported gives us many additional and effective remedies, so that there is no necessity for a strictly penal section to the law.
These new remedies are of little value to us for the reasons stated; nor is the delivery of the plates any benefit to us, because the plates of directories are never used a second time, or, if they are, they are not so used once in a hundred times. The mischief has all been done before the plates can be destroyed.
Another reason he gives is the existence of the remedy by injunction. I have shown that we can not recover damages to compensate us for our loss, and that we would be compelled to hold irresponsible
This fine of a thousand dollars is often ridiculously inadequate, in a case where a large directory is pirated.
The second reason the gentleman gives is that there is no adjudication in advance as to the right to a copyright, and for that reason there ought not, he says, to be a jail sentence inflicted. To my mind. that reason operates in the opposite direction, because it affords the' man charged with the offense another opportunity to escape. You must show that the copyright is valid or there can be no conviction. Hence the infringer may often escape by raising some doubts as to the validity of the infringement. Thus the reason invoked would operate to the advantage of the accused and not against him.
Representative SULZER. Suppose section 31 of Senator Smoot's bill was changed so as to read:
Shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not more than $1,000, or one year's imprisonment, or both, such fine and imprisonment to be in the discretion of the court, and shall stand committed to jail until such fine and costs are paid.
Mr. LUCKING. That would be eminently satisfactory with some slight modification of phraseology.
The CHAIRMAN. There is one further matter I would like to call your attention to in this bill. Would you think it proper to have a minimum fine and a maximum fine rather than to say fine of $1,000? Representative SULZER. I said, "Not more than $1,000." That would cover your suggestion, would it not, Mr. Lucking?
Mr. LUCKING. It would absolutely. I want to close this statement by citing the third and last reason he gives in opposition to this proposition. He is a gentleman for whom I have the highest respect. The third reason he gives is that patents and trade-marks are not so protected. To answer this in a word, because one species of property is not protected by jail sentence as all other investments and property are protected, is that any reason why a copyright should not be protected?
The reason why patents and trade-marks are not so protected is that there are many innocent infringements of them, and there is often very great difficulty in the case of an infringement of a patent to demonstrate that it is an infringement. The greatest experts differ on those questions.
Representative CURRIER. What you say about patents is undoubtedly true, but it does not apply with equal force to the willful counterfeiting of a trade-mark.
Mr. LUCKING. I thank the committee for granting me this opportunity to present this matter.
The CHAIRMAN. Mr. Malcomson, we are pressed for time; but we will hear you if you will not occupy more than ten minutes.
STATEMENT OF MR. A. BELL MALCOMSON, REPRESENTING MCLOUGHLIN BROTHERS, LITHOGRAPHERS, OF NEW YORK CITY, N. Y.
Mr. Chairman, I-represent one of the oldest and largest houses of manufacturing lithographers in the United States, the firm of McLoughlin Brothers, of New York. They are the manufacturers of the books which are known as children's and infants' books, with which you have all been familiar from childhood. For over forty years this house has been in this business in New York, and their goods are sold and have been sold for years from Maine to the Pacific coast. Of course this matter is one of importance to them.
If the chairman will turn to section 16 I will try to conclude, as soon as possible, what I have to say on this subject. I want to refer to the exception which was discussed yesterday by several of the gentlemen.
Representative CURRIER. You mean the provision, "where subjects are located in foreign countries?"
Mr. MALCOMSON. Yes; the argument was that the exception should remain in the law, on the ground that if the lithograph or pictorial illustration was an illustration of something in a foreign country it ought to come in without the process of lithographing being performed in this country.
I felt when they were speaking on the subject yesterday that this · was a very small portion of the goods or articles that this section referred to. Lithographs have always been in what is known as the manufacturer's clause from the time the provision was first inserted in a copyright law, and it was there because it is an industry-we may not say that it is an infant industry-but yet it certainly is an industry for infants, for this class of goods goes to the children.