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Senator MALLORY. I can readily see where the delay would arise. Mr. MONTGOMERY. Yes, sir. Senator MALLORY. But how do you obviate it! Mr. MONTGOMERY. If the owner of the copyright, as I state here, will notify the Treasury Department of any importation, actual or contemplated—if he suspects that some person is importing books in violation of his rights, and will notify the Treasury Department we will send out copies to each of the collectors, and they will take special care to watch out for that book or whatever the article may be, and will almost surely detect it.
Senator MALLORY. That will prevent the importation of a book that ought not to be brought in; but where a book is brought in with the consent of the copyright proprietor, but the customs officers do not know whether they have his consent or not, they will have to inquire. Why not throw the burden on the injured party to notify the Treasury Department?
Mr. MONTGOMERY. That is what I have suggested here, sir. I have suggested that—that the injured party notify the Treasury Department of his injury. And if he does we will take steps to prevent it. We can do it. But we can not do it by searching a million and a half title entries.
Mr. CHANEY. Then, in all respects the bill suits your ideas save on the question of the notice!
Mr. MONTGOMERY. Yes, sir; I should say so. We can work under the bill if we get a notice or something of that sort to keep the customs officers from searching these title entries.
Mr. CHANEY. Anything that would resolve itself into shape to require notice to be given to you would be all right?
Mr. MONTGOMERY. Yes, sir; to the Treasury.
You are giving him this benefit, and he ought to be required to help the Treasury Department help him.
STATEMENT OF CHARLES PORTERFIELD, ESQ., OF NORTHPORT,
The LIBRARIAN. Mr. Porterfield, you are connected with the Edward Thompson Company?
Mr. PORTERFIELD. The Edward Thompson Company, of Northport, Long Island, law publishers.
The LIBRARIAN. You are book publishers?
The LIBRARIAN. Before you start, Mr. Porterfield, may I ask this: You have made somewhat extensive criticism of the bill in two articles in the Law Notes," have you not?
Mr. PORTERFIELD. Yes.
The LIBRARIAN. And those criticisms were tabulated, abstracted, in the amendments?
Mr. PORTERFIELD. Yes; in the amendments.
We understood from you that that statement was satisfactory to you; it was accurate so far as it went?
Mr. PORTERFIELD. Yes.
The LIBRARIAN. I ask this because if you should find that within the thirty minutes which you have asked for you are not able to cover all the criticisms you have covered here, the committee may depend upon this as an accurate statement?
Mr. PORTERFIELD. I think so; yes; and I can also give my criticisms in full in printed form if the committee desire it.
The LIBRARIAN. Yes.
The CHAIRMAN. Mr. Porterfield, I understand that you desire thirty minutes ?
Mr. PORTERFIELD. Yes, Mr. Chairman; I should like to have at least thirty minutes. The CHAIRMAN. Does Mr. Walker appear with you?
. Mr. PORTERFIELD. Mr. McKinney is here, appearing with me. This is Mr. McKinney, now present.
The CHAIRMAN. Does he desire to address the committee?
Mr. McKINNEY. I understood that a small bit of time has been allotted to me, Mr. Chairman.
The CHAIRMAN. How much time?
Mr. McKINNEY. But I only arrived yesterday from abroad, and I have not had a chance to learn the state
The LIBRARIAN. We had already heard, Mr. Chairman, that Mr. McKinney would like an opportunity to say something. He is connected with the same company. I do not know whether he would speak from the standpoint of general legal criticism or from the practical standpoint of a particular firm of publishers. In what way, in other words, would you cover ground not covered by Mr. Porterfield? I think the committee might like to know that.
Mr. MCKINNEY. My remarks would be general, as to the general aspect of the bill, and not directed to any special feature of it.
The CHAIRMAN. We will determine that question after we have heard Mr. Porterfield.
Mr. McKINNEY. It may be, Mr. Chairman, that you will not care to hear me after Mr. Porterfield has addressed you.
The CHAIRMAN. Your time expires at 5 minutes to 11, Mr. Porterfield.
Mr. PORTERFIELD. Mr. Chairman and gentlemen, in appearing before you this morning. I represent very largely myself as a legal author, as a writer of law treatises; and I also represent to a very large extent the public in the desire to have a copyright law that will be permanent and clear and certain all the way through. I also speak as one who has had quite extensive experience in copyright litigation. I have studied this bill carefully, and I have studied the present copyright law, and it is my opinion that this bill is not satisfactory in a great many respects. It is very incomplete; it is inapt in expression, and many of its provisions are conflicting and contradictory. It seems to have been framed by the formulation of various provisions designed for the benefit of some particular interest; and all of these have been assembled together and constitute the present bill.
A very serious objection to the bill as it now stands is its novelty. It is all new in its terms. It does not include any of the existing law. The consequence of that, of course, would be that every question which would arise hereafter in copyright law would be one of first impression and embarrassment, of course, and would make it impossible for counsel to advise with any degree of certainty.
À further confusing circumstance is in the repealing clause, section 64 [examining bill].
The CHAIRMAN. We are familiar with the terms of it.
Mr. PORTERFIELD. Yes. In other words, that section 64 leaves the present law in force throughout, except so far as it is inconsistent with the provisions of this bill.
Mr. CURRIER. I do not think you need take much time with that. I do not think the committee will enact that kind of a repealing clause. Mr. PORTERFIELD. Very well, sir; I will pass that by, then.
As to the need for so radical a measure as this, putting it all in new terms, it really is inconceivable that the present law has entirely failed of its purpose. It has been in effect without substantial change for more than a hundred years. During that time, of course, a very large number of copyrights have been obtained, and there never has been a time when authors derived the large profits from their writings that they do at this time. And it does not really seem that there is any need for any great extension of the protection they receive. It may be, and probably is, that there are some things that might be added to the copyright protection; but I doubt that it will need such extensive changes as that.
I will now take up some of the particular provisions of this bill and begin with section 1. Section 1 seems to be designed both to define copyright and to state what things shall be subject to copyright protection. Clause A of section 1 provides— That the copyright secured by this act shall include the sole and exclusive right, for the purposes set forth in subsection B hereof, to make any copy of any work or part thereof the subject of copyright under the provisions of this act; and that in connection with section 23, which provides
, That if any person shall infringe the copyright in any work protected under the copyright laws of the United States by doing or causing to be done, without the consent of the copyright proprietor,
any act the exclusive right to do or authorize which is by such laws reserved to such proprietor, such person shall be liable, etc.
In other words, that clause A of section 1 and section 23 seem to be designed to define definitely what an infringement shall consist of. As the law now stands, a copyright gives the right to multiply copies for the benefit of the author or his assigns and heirs, and an infringement is doing or causing to be done anything by which that right is invaded. In other words, the idea is to protect the author against any diversion of the profits which ought to come to him, and anything by which one person will abstract from the author's profits is an infringement of copyright.
The courts, in construing the present copyright law, have defined infringement as reproducing a protected work or any substantial or material part of it, and this clause A of section 1 seems to make a flat definition of infringement as making any copy or any part. The
distinction is between the present law, which says “any material part," and the bill, which says “ any part.” It must be that this section has that meaning; otherwise it is useless and means nothing.
Now, it is just as impossible to make a definition of infringement of copyright which will fit all cases as it is to define exactly reasonable doubt or negligence or any other of those general matters. Each case depends on its own circumstances, and it should be left to the court to decide in every case whether one work is an infringement of the copyright of another work, and you can not define it exactly.
Mr. CHANEY. I take it, Mr. Porterfield, that the idea now was to eliminate the necessity of determining what a material part is.
Mr. PORTERFIELD. Yes, sir; that is exactly the point I am making. Mr. CHANEY. Is not that all right, to do that!
Mr. PORTERFIELD. I think not; I think it is impossible to do that, because if that is eliminated, then all that it would be necessary to show to prove an infringement would be that there was some sentence or paragraph of one work found in another. It does not take into consideration the purpose of the use or the extent of it. There are a great many works which one author may very properly, both in law and morals, use in doing his own work, and if you cut off that right you simply suppress a great deal of the literature of the country.
Mr. CURRIER. Mr. Porterfield, could you give the time to formulating amendments to carry out the ideas you suggest ?
Mr. PORTERFIELD. Amendments to this bill?
Mr. PORTERFIELD. Mr. Chairman, I do not believe that this bill in its present form can even be made the basis for a copyright bill. That is my idea.
Mr. CURRIER. Then, from your point of view it would be useless?
Mr. PORTERFIELD. Yes. I think this bill has some very excellent provisions in it, but they should be put in better and more certain and permanent form than they are now. The whole thing seems to me to be confused and obscure, and it is really impossible to tell what the law would be under this bill if it were enacted. I will give you an illustration of that now.
There was a great deal said here yesterday about this domesticmanufacture clause-the setting of type in this country and printing in foreign countries from that type or from plates made from that type. That, I understand, is very much insisted on; and there is a representative of that interest here present who made some remarks yesterday. He seems to be perfectly satisfied with this bill. Am I right, Mr. Sullivan! You are satisfied with the provisions of this bill in regard to the domestic manufacture, are you?
Mr. SULLIVAN. I did not hear the question.
Mr. PORTERFIELD. I understand that you said yesterday that you were satisfied with the provisions of this bill in regard to domestic manufacture?
Mr. SULLIVAN. I am with the amendment which we have proposed, generally.
Mr. PORTERFIELD. Yes.
Mr. SULLIVAN. There are some objections which we waived in order to bring the bill up for consideration.
Mr. CURRIER. I suppose they will offer an amendment making it necessary to manufacture here.
Mr. PORTERFIELD. Yes; but the amendments will not affect what I am going to call attention to at all.
The provision in this bill is that copyright shall be obtained by publication of the work with the notice of copyright. It is the publication with the notice of copyright that gives the copyright under this bill; and there is no other condition precedent to obtaining a copyright. There are various subsequent provisions as to things that must be done. For instance, there must be an affidavit made, I believe, that the book was printed from type set in the United States; but there is no serious consequence that follows from not doing that thing. After the publisher or copyright proprietor has obtained his copyright by publishing with the notice of copyright, he has his copyright.
Mr. CURRIER. That can be invalidated, can it not?
Mr. PORTERFIELD. No, sir; under this bill it can not be. He has his copyright then, and the domestic-manufacture clause is all gone.
A GENTLEMAN. The importation is prohibited.
Mr. PORTERFIELD. The importation might be prohibited, but it is not a question of importation. You have your type set in Canada, and your plates made there and brought to this country—that can be done; that could be done under this bill.
The GENTLEMAN. No; it could not.
Mr. PORTERFIELD. Yes, sir. There is nothing in the bill that would vitiate the copyright on that ground. The copyright would be given by publication with the notice of copyright.
Mr. CURRIER. I am not able just now to turn to the particular section, but I had an impression that that section provided that upon proof that it was not so printed the copyright would be invalidated.
Mr. PORTERFIELD. I do not so understand it, sir.
Mr. CURRIER (reading). "And all of his rights and privileges under said copyright shall thereafter be forfeited.” That was put in for the purpose of invalidating that copyright.
A GENTLEMAN. If you will permit me, Mr. Chairman, that is the penalty for making a false affidavit. If a man makes no affidavit at all, the bill does not apply to him so as to invalidate the copyright.
Mr. CURRIER. Must he not make this affidavit?
The GENTLEMAN. No; there is no compulsion put upon him by the bill to make the affidavit. All he has to do is to forget it, and then his copyright is perfectly valid.
Mr. PORTERFIELD. All he has to do is to just forget it, right away.
Mr. CURRIER. I think it may be understood generally here that there will be such a provision in any bill that passes. I had an impression that that was already taken care of. This reads, “In the case of the book the copies so deposited shall be accompanied by an affidavit.”
Mr. PORTERFIELD. There is not any obligation on him to deposit those copies even. He can forget that.