Lapas attēli
PDF
ePub

Following some introductory remarks concerning the history of the manufacturing clause and the nature of the Register's proposal for further modification contained in H.R. 4347, I shall present the economic case, supported by statistical evidence, for the complete and final repeal of the clause.

ORIGIN OF THE MANUFACTURING CLAUSE

The manufacturing clause is a device, unique to this country, to require domestic printing of books as a condition of securing copyright. It emerged from our special historical situation in the 19th century. The principal European countries began to grant copyright protection to foreigners as well as to their own citizens well over 100 years ago. Denmark was the first in 1828, followed by Prussia in 1836, England in 1837, France in 1852, and Belgium in 1854. This practice was generalized in the Berne Convention, a multilateral treaty for reciprocal recognition of copyrights which came into effect on December 5, 1887. The United States did not join the Berne Convention. Nor did we grant foreign authors any copyright protection until 1891, and then only if their books (and photographs, lithographs, and chromos) were remanufactured in the United States the so-called manufacturing requirement or manufacturing clause. Why did this happen only in the United States? The reasons are to be found in two special circumstances. First there was our tradition of not granting property rights to foreigners in many States only American citizens could own real property. Second and more important, the American book publishing industry was developed in its formative years on the basis of piracy of British works.

In the absence of copyright protection the pirated works of world-famous British authors, starting in a major way with the novels of Sir Walter Scott in the 1820's, formed the basic raw material on which the American book publishing and printing industries were built up. This situation of a large and growing former colony being able to appropriate the literature of its previous homeland, without even the necessity of translation, did not exist elsewhere. The relationship between France and Belgium was the only one at all similar. In that case the Belgians were pirating French language works on a large scale, but after France took the lead in 1852 in granting copyright protection to the literary works of all foreigners, Belgium quickly conceded and adopted the same policy in 1854.

In the United States agitation for granting copyright protection to foreign authors began almost as early as it did in Europe. In 1837 Henry Clay submitted to the Senate a petition from 56 leading British authors. A special committee appointed to consider the petition reported a bill to give U.S. copyright protection to British citizens, provided that their works were reprinted and published in the United States. That was the earliest appearance of the manufacturing clause. The Clay bill was supported by a group of Americans including James Fenimore Cooper and William Cullen Bryant, organized by George Palmer Putnam, a publisher, into "The American International Copyright Association." This and subsequent Clay bills were not acted upon favorably, even though the subject was given nationwide publicity during the course of Charles Dickens' first American tour in the early months of 1842.

American authors were pressing for international copyright protection on two grounds. It would give them some revenue and control over their works, which were beginning to be pirated in England. More importantly it would help them make a living in the United States. As long as the works of famous British authors could be obtained without permission or payment of royalties by American publisher-printers such as the Harper Brothers in New York and Matthew Carey in Philadelphia, unknown American authors could not expect to get paid for their literary productions or even to get them published for nothing. The efforts of the authors were supported by some publishers such as Putnam, American playwrights and composers were in the same situation, or perhaps worse because British and European plays and music dominated the American scene even more than was true with fiction and poetry.

The opposition to these early Clay bills in the late 1830's and early 1840's was primarily from most of the printer-publisher-booksellers of New York, Philadelphia, and Boston, and the industries associated with them such as the papermakers. Even the requirement of American reprinting under the manufacturing clause of the Clay bills was not enough to gain the support of the pirate publishers and their allies. They were satisfied with business as it was; they saw no

reason to change because of arguments of morality or to encourage a native American literature. The fact that the subject was first brought up by British authors undoubtedly did not help the cause politically-the public and Members of Congress were not disposed to support a measure which seemed on the surface to be primarily of financial benefit to British authors.

A number of other petitions and bills were brought up in the Congress in subsequent years, both before and after the Civil War. However, it was not until the "cheap book" rage of the 1870's and 1880's that the American publisher-printerbooksellers began to change their minds about the merits of international copyright protection. There had grown up over the years a practice of "trade courtesy" among the established book publishers and printers such as the Harpers and Carey. The American publisher who first brought out a pirated work of a British author was considered by his competitors to have established a right to that work and they would not ordinarily "print it on" (pirate it from) him. This was a practice to which there were many exceptions, but it seemed to work out fairly well until the mid-1870's when newcomers entered the field who paid no attention to trade courtesy. The first of these was Donnelly Lloyd & Co., of Chicago, which started in 1875 the "Lakeside Library" of very cheap editions of unprotected British works. This was followed by other "libraries" or series such as the famous "Seaside Library" of Munro, in which the individual titles sold for 10 cents. In the year 1885 alone it was estimated that some 1,500 titles were published in these cheap editions. Not only did the cheap books destroy the market of the established book publishers and printers, but they also aroused the opposition of the growing printing trades unions, because non-union labor, including women, was being used in the production of these cheap books.

The tide really turned in 1878 when the Harper Brothers, perhaps the leading opponents of international copyright over several decades, on their own initiative proposed to Secretary of State Evarts a treaty between the United States and Great Britain for the reciprocal protection of copyrighted works, provided that the British works were remanufactured in this country. It should be noted that the manufacturing clause proposed by the Harper Brothers included only printing. The Harpers were experienced printers, and they did not propose complete "featherbedding"-they were perfectly willing to import the plates from the British edition and not require that the typesetting be done over again in this country.

From this point on the issue was essentially settled, although a great deal of hard work was still required before the Simmonds bill was finally passed, first by the House and then by the Senate in the last minutes of the 51st Congress, on March 4, 1891. It should be noted that this bill was in the end supported by almost all groups directly concerned: the authors, the publishers, the book manufacturers, the printing trades unions, and representatives of book users such as the National Education Association and the American Library Association. The support of the printing trades unions was not without its price. The manufacturing clause enacted in 1891 was not of the limited type that the Harpers had advocated, requiring only printing in this country from imported plates, but the resetting of the type in the United States as well. The law also contained a provision prohibiting the importation of foreign editions of works copyrighted in the United States, so that the original foreign editions would not come into the country over the then-existing 25 percent ad valorem tariff on books.

As originally enacted in the 1891 statute, the requirements of the manufacturing clause were so rigid that they did not provide much benefit to foreign authors, except for the best-known British writers. In order to secure U.S. copyright the work was required to be printed and published in the United States not later than the date of publication in any other country. It was possible for publishers of well-known British writers with an assured sale in the United States to make advance arrangements with U.S. publishers to meet these requirements and have the United States and British editions come out simultaneously. Such arrangements were not practical for the works of continental European writers, which required considerable time for translation into English, or for lesser known British authors whose works could not attract an American publisher prior to the testing of public reaction to the British edition. Thus the vast bulk of foreign literary works undoubtedly continued to fall into the public domain in the United States following the passage of the 1891 law.

Nevertheless the Simmonds bill was a success on several counts. The "cheap books" craze died down after the free supply of fiction by popular British au

thors was cut off. The book industry continued to expand at an even greater rate than before. The following statistics from the U.S. Census provide a rough measure of growth, the only one available:

[blocks in formation]

Finally and most importantly, with unpaid foreign competition greatly reduced, American professional writers, playwrights and composers of popular music began to blossom, and a trend was started which was ultimately to make American creative works the most vigorous and widely disseminated in the world.

MAJOR MODIFICATIONS IN THE MANUFACTURING CLAUSE

The subsequent history of the manufacturing clause is—with one exceptionone of a series of relaxations; so that the present provision is only a shadow of the original. The one exception which strengthened the clause was in 1909 when periodicals were made subject to the clause and the additional requirement of binding in the United States was added. The principal relaxations up to the present time have been:

1909: Elimination of the manufacturing requirement for books in languages other than English.

1919: Granting of 60 days after publication for copyright registration of books not first manufactured in the United States, and 4 months' temporary or ad interim copyright, in which manufacture in the United States could be completed.

1949: Granting of 6 months after publication for copyright registration of books not first manufactured in the United States and a 5-year ad interim copyright to permit remanufacture in the United States. In addition 1,500 copies of the foreign edition could be imported during the 5-year ad interim period.

1954: Elimination of the manufacturing requirement and import restrictions for books first published in a country adhering to the Universal Copyright Convention or for books written by a national of a country adhering to the UCC. However, because the elimination of the manufacturing requirement did not apply to U.S. citizens or domiciliaries, permission was granted to American authors to take out the 5-year ad interim copyright on their works first published abroad and to import up to 1,500 copies of those books. The elimination of the manufacturing clause for nationals of countries adhering to the UCC was a requirement for the acceptance of the United States into that multilateral convention. We had by then become the world's leading producer of all types of creative work-literature, plays, and music-with exports far exceeding our imports. It was obviously in our interest to protect our copyrights abroad; and Congress was convinced that the concession on the manufacturing clause would not be harmful to any American interest. As noted earlier, history has demonstrated the truth of this conviction.

PRESENT STATUS OF THE CLAUSE

At the present time the manufacturing clause applies only to works in English in whole or in part by American authors or by citizens of those few countries (like Australia) that have not joined the Universal Copyright Convention. Books by American authors must be wholly manufactured in the United States to get a full-term copyright. What this means depends on whether the work is produced by letterpress or by lithography.

A letterpress book is printed from raised type, either the original type or a plate made from it. An offset lithographed work or book is printed from a flat surface so treated that ink will not adhere to parts of the surface. Offset lithograph plates are almost always made from films, which in turn are made by photographing the material to be printed. The requirement of the manufacturing clause that the actual printing and binding be done in the United States applies to all books falling under the clause regardless of the method of printing. In the case of works printed by letterpress the law further specifically requires that the work be printed from type set in the United States or from plates made

52-380-66-pt. 3--14

in the United States from type set here. If the work is printed by lithography the specific requirement of typesetting in the United States is omitted, and the requirement instead is only that the copies must be produced "by a process wholly performed in the United States."

Since it is generally understood that the lithographic process begins with the act of photographing the material to be reproduced, whatever it may be, it has been considered that a work complies with the manufacturing clause if the lithographic process from first film to bound book is wholly performed in the United States, though the material lithographed may be a so-called reproduction proof made from type set abroad. That is, one clean set of proof sheets may be made abroad and sent to the United States. It may then be photographed, made into plates, printed and bound here.

This practice is usually advantageous only for scientific, technical, and scholarly books in small editions, for which the presence of foreign language phrases, mathematical equations, chemical formulas, etc., makes it impractical to set type by the familiar and relatively inexpensive linotype method, and requires typesetting by hand or by monotype machine. Though such books make up a trivial part of the dollar volume of American book production-and an invisibly small part of American printing generally-they are essential to American progress in science, technology, and scholarship.

A very few hundred books by American authors, certainly less than 3 percent of our annual production of new and revised book titles, are produced annually from reproduction proofs. This has in no way injured American book manufacturing or printing unions. On the contrary if the problem of composition could not have been met in this way, most of these books could not have been published. Not only would American science and technology have been held back if that were the case, but American book manufacturing companies and printing union members would have lost all the work of platemaking, printing and binding for these works, which is, of course, a large and more profitable part of the job than the typesetting.

All these books so produced have been registered for copyright on application to the Copyright Office. The validity of the copyrights so obtained has never been questioned in the courts and the Deputy Register of Copyrights, in his testimony before this committee, expressed the belief that the courts would be likely to hold such copyrights valid. We certainly hold that such a use of imported reproduction proofs wholly complies with the law. In his report on H.R. 4347 to this committee, however, the Register of Copyrights has stated that the language of the present statute is unclear and that registrations of works produced as described above had been made on the "basis of doubt." This ambiguity in the present law is extremely undesirable and its perpetuation would be intolerable.

It involves the rights of thousands of American authors and the investment by American publishers over the years of millions of dollars in scientific, technical, medical, and scholarly publications. Without the ability to have composition of these specialized books done where it can be most effectively done, the publication of hundreds of such works would have been impossible in the present state of technology. This would have been a loss to American printers and binders as well as doing grave damage to American scientific, technical and scholarly progress.

PROPOSAL OF THE REGISTER OF COPYRIGHTS

In his original 1961 report to the Congress the Register of Copyrights recommended (p. 124) the complete repeal of the manufacturing clause in the following language:

"(a) The requirement of manufacture in the United States as a condition of copyright (sec. 16) and the related provisions dealing with affidavits (secs. 17 and 18) and ad interim copyright (secs. 22 and 23) should be eliminated.

"(b) The prohibition against the importation of copyrighted English-language books manufactured abroad (sec. 107) and the provision for importing up to 1,500 copies under ad interim copyright (sec. 16) should be eliminated. If Congress finds that an import limitation on English-language books is necessary for the protection of the U.S. printing industry, the limitation need not be confined to copyrighted books, and it should be provided for in legislation other than the copyright statute."

Subsequently the Register in the actual bill introduced in 1964 (H.R. 11947 and S. 3008) proposed a further modification rather than a repeal of the manu

facturing clause. Again in H.R. 4347 and S. 1006, the current bills introduced on February 4, 1965, the Register has proposed still another modification rather than repeal. The Register makes it clear in his report on H.R. 4347 that he has not changed his mind about the desirability of his 1961 recommendation of complete repeal, but has been concerned about the opposition to repeal, on economic grounds, which may be expressed by certain groups.

The Register is now proposing to make the following further principal modifications in the manufacturing clause:

(1) Eliminate the requirement of U.S. manufacture for American authors (or anyone else) in order to obtain full term U.S. copyright.

(2) Substitute a requirement of U.S. manufacture (or importation of up to 3,500 copies) in order to bring suit for infringement of copyright where the infringing use of the material is in book form.

(3) Permit the importation or distribution in the United States of 3,500 copies of a work first manufactured abroad without limitation of time.

(4) Exempt from the manufacturing clause books of joint foreign and American authorship.

Though the various modifications proposed by the Register in H.R. 4347 are desirable as far as they go, they do not reach the heart of the issue. The basically indefensible principle remains: that an author's right to the creation of his own mind is made dependent on the circumstances of the manufacture of one physical form in which his work is embodied. And the central practical problem of the whole manufacturing clause remains. H.R. 4347 embodies the precise language of the present law in defining what constitutes "manufacture in the United States." The Register's report confesses that he is not certain what this language means in the present law and says of the language in H.R. 4347 only that "it is intended to mean here whatever it means there." I assume that this committee will not wish to recommend to the Congress that it enact language whose meaning cannot be determined, and that the committee will wish to resolve this issue. As I shall endeavor to point out, it can do so easily, clearly, and completely by simply eliminating the manufacturing clause and the related import restrictions contained in chapter 6 of H.R. 4347-and it can do so without injuring the economic interests of American book manufacturing and indeed without significant change in the present patterns of printing and publishing.

THE BENEFITS OF COMPLETE REPEAL

The benefits of repeal of the manufacturing clause and related import restrictions as compared with the further modifications which the Register of Copyrights has suggested in H.R. 4347 may be listed under the following eight major headings:

(1) The greatest single advantage would be the resolution of whatever doubt there may be about copyright registrations on books printed in this country by the lithographic process, using reproduction proofs of type set abroad. The importance of this practice for the publication of small-edition, specialized, technical, scientific, and scholarly books by American authors has already been discussed in some detail and will not be repeated here.

(2) It would permit manufacture abroad, without sacrifice of copyright, of co-editions with foreign publishers, using an American author for the English language text. When several European publishers and an American publisher join in the production of a book, frequently a heavily-illustrated art book, each national edition will have the same illustrations but the text will be in different languages. Production of these books is only economically feasible on a coedition basis, and the work is usually done in Europe because most of the participating publishers are located there. If the author of the English-language text of the American edition is an American citizen the U.S. copyright on the American edition must be sacrificed. This is one of the numerous situations in which the manufacturing clause cannot force the production of an edition in this country; it can only result in the loss of the author's copyright here.

(3) It will reduce friction with publishers and authors in other countries, which always carries with it the possibility of retaliation in other ways such as tariffs and exchange restrictions, or even other manufacturing clauses. No other country has yet adopted a manufacturing clause such as ours but it has been threatened, for example, in the Philippines during the postwar period. As we are the world's leading book exporting nation the incorporation of a manu

« iepriekšējāTurpināt »