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newly published works, in which case the treaty would protect them as a matter of course. Reciprocally, this "retroactive" protection will accrue, in other countries parties to the treaty, to the benefit of the works of American authors. In this connection it should be remembered that in Anglo-American law a strong presumption exists against any retroactive application. It is to be presumed that American courts, in applying the treaty, will not be disposed to expand such "retroactivity" as it seems to contemplate.
The fact, however, that some such works from other countries are doubtless in use by American motion-picture or other industries is the only genuine justification for the recommendation-in which I concur-that the treaty shall not come into force as an obligation of the United States until the expiration of a year following favorable action by the Senate.
During the year industrialists ought to be able to make appropriate adjustments so as to avoid infringement under the treaty. But it must be confessed that from the point of view of American authors, who need the protection of the treaty now, the proposed delay constitutes a considerable concession to the users of literary and artistic works incidentally a somewhat costly concession, since it may enable the unscrupulous to continue to get free of cost from the foreign author what they would have to pay for if they used the creations of native talent. Such "competition" of the unprotected foreigner has at times been severe.
It must be recognized, however, that the number of works already in existence that would become copyrighted in the United States as a result of the treaty is probably small. Most such works likely to have any commercial value are already copyrighted here in accordance with existing statutory regulations. In all probability more American works that are likely to be profitable would thus become protected in other countries than would works of other countries' authors here.
Certainly no reason is made apparent why the treaty should be delayed until after the national law has been changed. The treaty would mean exactly the same after as before such amendment of the statute.
(4) The manufacturing clause. If evidence set forth at congressional hearings correctly sums up the attitude of authors in the United States, the greatest reform needed in copyright law is the legalization of copyright without formality. Internationally speaking, this is what the pending treaty gives them. And the Supreme Court, in the recent case of Washington Publishing Co. v. Pearson and Allen, et al. (decided January 30, 1939), has made clear the fact that under the act of 1909 they are entitled to copyright in this country on the observance of the one formality of publication with notice. "If all formalities were omitted," says a recent issue of the Publishers' Weekly, discussing this case, "our copyright law would be in general accord with the customs of other countries."
The formalities of registration and of deposit of copies may affect the right of enforcement, but not the copyright itself. A fourth formality in the statute, which affects primarily authors in other English-speaking countries, is the requirement that works in English, to be copyrightable, must be manufactured in the United States. Such a provision, insofar as it affects authors domiciled in countries that are parties to the treaty, is contrary to the treaty.
Arguments have been put forward to the effect that, if English and Canadian authors are permitted to copyright their works here without the observance of this formality, there might be less typesetting, printing, binding, et cetera, to be done in American publishing houses. This objection to American adherence to the treaty has at times been put forward with considerable vehemence and ought to be answered with due care in connection with the recommendation that, nevertheless, the Senate accord its advice and consent.
The essential fallacy of those who put their faith in the manufacturing clause grows out of their failure to face realities. They see only one side of the question and that through a magnifying glass.
I have already pointed out the danger to American export interests of lack of adequate copyright protection in other countries. Such protection is likewise a safeguard against invasion of the home market with cheap pirated editions. The treaty contemplates the seizure by the customs authorities of the countries parties to it of all infringing works. The actual fact, according to competent observers, is that any advantages to American industry, whether from the point of view of employers or labor, that may accrue from denying copyright to works in English manufactured outside the United States is wiped out by the accompanying loss of export trade. Correspondingly, the impetus to export trade which the treaty would furnish may be counted upon assuredly to compensate industry for such possible reduction of volume as may result from extending copyright to British and Canadian books and other publications. It is believed that approval of the
copyright treaty will result in a genuine stimulation of employment in the industries engaged in the manufacture of copyrightable works. Even under present conditions exports of these works are increasing all along the line, which fact indicates a real demand for them. Such demand, if necessarily asserting itself so far as American copyrighted works are concerned only in respect of the products of American industry, would still further increase exports and, ipso facto, employment.
On the other hand, with the development of American creative ability, imports of the works of authors and artists in other countries do not keep pace with exports. Literature and art, formerly on an import basis here, are now definitely on an export basis. Hence the question whether other countries have copyright here is of dwindling importance compared with the question whether American producers have sufficient copyright protection in other countries. The manufacturing clause, if it was ever of consequence vis-à-vis employment, has in all probability ceased to possess such a role and at the same time, insofar as it operates to delay adherence to the copyright treaty, become a detriment to the cause of its advocates.
The introduction of cheap methods of reproducing printed matter probably means that, even more than has been the case in the past, American editions of English books for which there is any considerable demand will be brought out regardless of the manufacturing clause. This result is the more likely because of the type of contracts which authors often make with publishers, granting one publisher the copyright for the home territory, another the American rights, a third the rights for some other part of the world.
All things considered, I am of opinion that the manufacturing clause has become outmoded, that it does not fulfill its objective of making work for American labor and that, being essentially unfair, it constantly invites other countries to make use of unfair practices of one kind or another to the injury of American labor and American authors, publishers, and producers generally. The opportunity to get rid of it which the pending treaty offers is an opportunity which the Senate should welcome. Conclusion. It follows from the foregoing that I concur in the recommendations made in 1937 by the then existing subcommittee and by the committee as a whole. The time to be set for making the convention operative in the United States is, of course, within the discretion of this Government, as the convention specifically recognizes. I concur in the report of 1937 and recommend that a year elapse between the day of the Senate's action and the day of the treaty's becoming law in the United States, in order that the industries affected may make appropriate adjustments and Congress may have abundant opportunity to enact convenient accompanying legislation if it seems to be called for. Respectfully submitted.
ELBERT D. THOMAS.
In connection with the foregoing report of the subcommittee, there are appended hereto, and made a part of this report, two letters from American authors which show plainly the losses which accrue to these persons because the United States is not a party to the Copyright Convention:
Hon. ELBERT D. THOMAS,
United States Senate, Washington, D. C.
ATLANTA, GA., March 15, 1939.
MY DEAR SENATOR THOMAS: A little over a year ago you were kind enough to grant me an interview so I could tell you of the difficulties I was having in Holland about the piracy of my novel, Gone With the Wind. I appreciated the time you gave me and the interest you took in the matter of the unprotected state of United States authors in foreign countries. I have just learned that the Committee on Foreign Relations is again turning its attention toward the ratification of the treaty which would give our authors proper protection. I have learned, too, that you have been appointed a subcommittee of one to investigate the treaty and handle it on the floor of the Senate if the committee's action is favorable. Remembering your sympathetic interest, I felt great pleasure at this news and a renewed hope that something would be done soon to give our writers the protection enjoyed by most European writers.
It is a strange situation that United States authors, citizens of one of the largest and most powerful nations in the world, are forced to submit to piracy of their works by citizens of one of the smallest nations. I have no personal ax
to grind, for, even if the treaty were ratified tomorrow, I do not believe it would help Gone With the Wind, in Holland. It would not return to me the many thousands of dollars I have spent in attorneys' fees and other expenses in Holland; nor would I get back the many hours of hard work I have put in during the last 2 years, fighting my case at long distance. But I feel very strongly about the matter. Even if the passage of the treaty will not help my case, it will be a protection to all American authors in the future and to all American publishers. I realize that you are a very busy man and I do not expect that you will recall the details of the sad history of Gone With the Wind, in Holland. Briefly, I first learned of the piracy about 18 months ago and I have not yet been able to obtain justice. I have fought the case through one court after another with very discouraging results, but I am still fighting. Now they are attacking me in the Dutch newspapers for trying to protect my rights and calling me a "money grabber." If you can succeed in getting the treaty ratified, you will win not only my everlasting gratitude, but that of every other United States author. Cordially,
Hon. ELBERT D. THOMAS,
MARGARET MITCHELL MARSH. (Mrs. John R. Marsh).
HAWTHORN, FLA., March 26, 1939.
United States Senate, Washington, D. C. DEAR SENATOR THOMAS: I am a recent victim of the inexplicable failure of the United States to join the Berne Conference.
My novel, The Yearling, which had the good fortune to head the best-seller list in this country for some months, has been pirated by a Dutch publishing firm, Zuid-Hollandsche Uitgevers Maatschappij, at The Hague. All efforts of my literary agents failed in an attempt to force them to give me a contract or to pay me royalties. In desperation, I made an appeal direct to this firm, pointing out the human aspect of such an injustice, whereby an author works all his life toward his goal, to succeed at last in producing something with a financial value, only to have others profit by it, with no return to him. The director answered that I was perfectly correct in protesting the injustice, but that the blame lay only in "the deplorable aloofness of the United States in relation to the Berne Conference." Holding a high opinion of my book, he said, he was sending me a check for $100 solely as a mark of appreciation, emphasizing that "this in no way establishes a precedent for you or any other American author, or for future marks of appreciation." His action, of course, indicates a consciousness of moral responsibility, which can only be made tangible and useful by American membership in the conference.
When almost all commercial activities of Americans abroad are given protection by our Government, I am at a loss to understand why no protection whatsoever is given to American authors. Why should oil-which is quickly consumed-be given Government backing, and not literature, which may be assumed to have permanent aspects?
. What agencies can possibly have an ax to grind in preventing American membership in a reasonable association for the international publishing of written works? There must certainly be a small and selfish minority at work, for the good of all American writers demands an assurance that a lifetime's labor should not be stolen in foreign countries.
I understand that a treaty is now under consideration to prevent this injustice, and to guarantee the rights of American writers abroad. May I urge that our Senators give us this protection, which will do so much good and can certainly do no harm?
Thanking you for your consideration of my case.
MAJORIE KINNAN RAWLINGS.
There is also appended hereto and made a part of the report of the subcommittee the following letter from the Honorable Cordell Hull, Secretary of State, of April 4, 1939:
Hon. ELBERT D. THOMAS,
United States Senate.
DEPARTMENT OF STATE,
MY DEAR SENATOR THOMAS: There are three points in connection with the Convention for the Protection of Literary and Artistic Works, now before the Committee on Foreign Relations, which I desire particularly to call to your attention.
The first is the importance of the convention in the technical field to which it relates. Long consideration of it has convinced me that its acceptance by this Government is necessary in order to enable the Department of State properly to protect the rights and interests of the large and increasing number of American authors and artists whose works circulate in other countries. There has been a marked upswing in complaints received by this Department of unauthorized use in other countries of the admirable creative work of Americans. Usually this Government can do nothing for want of the treaty. Were the treaty in operation, a remedy would often be available.
Adequate protection of copyright is of special importance in the orderly spread of American culture. It is manifestly desirable to encourage whatever is well calculated to be of help in this respect.
Of even greater moment is the fact that this treaty fits definitely into the program of endeavoring to build up, step by step, better international relations in general. I am convinced that thus to take advantage of opportunities for the betterment of details is a particularly appropriate way for democratic peoples to make their influence effective, and that, in a world torn by destructive efforts, we should let pass no occasion which offers a chance to achieve constructive results. Failure of the United States to become a party to this convention has not only left the door open for injustices to its citizens and for obstacles to the right kind of cultural progress, but for ill feeling on the part of literary and artistic workers in other countries, notably the English-speaking countries.
I heartily recommend that the Senate take favorable action on the pending copyright treaty at the present session.
Appreciating the fine work you are doing in its behalf, I remain,
For the further information of the Senate, there are also included communications from President Hoover to the Senate, of January 21. 1931; also from Hon. Henry L. Stimson, Secretary of State, to President Hoover, of January 20, 1931; also from President Franklin D. Roosevelt to the Senate, of February 19, 1934; also from Hon. Cordell Hull, Secretary of State, to the President, of February 16, 1934, respectively, as follows:
To the Senate:
THE WHITE HOUSE,
To the end that I may receive the advice and consent of the Senate to adherence thereto on behalf of the United States, I transmit herewith the international convention signed at Berlin on November 13, 1908, relative to the protection of literary and artistic works, which convention is a revision of a convention signed at Berne, September 9, 1886, and also the additional protocol signed at Berne, March 20, 1914, to the convention signed at Berlin on November 13, 1908. I also transmit, for the information of the Senate, a report from the Secretary of State, dealing briefly with the question under consideration.
DEPARTMENT OF STATE, Washington, January 20, 1931.
The undersigned, the Secretary of State, has the honor to lay before the President, with a view to their transmission to the Senate to receive the advice and consent of that body to adherence thereto on behalf of the United States, if
his judgment approve thereof, the international convention signed at Berlin, November 13, 1908, relative to the protection of literary and artistic works, which convention is a revision of that signed at Berne, September 9, 1886, and also the additional protocol signed at Berne, March 20, 1914, to the international convention signed at Berlin, November 13, 1908.
The primary purpose of adhering to the international convention relative to the protection of literary and artistic works, commonly referred to as the International Copyright Convention, is to provide for American authors of literary and artistic works the right to enjoy, in countries parties to the convention, the rights enjoyed by authors of such works who are nationals of such countries respectively. Reciprocally, the nationals of these countries would enjoy in the United States the rights enjoyed by nationals of this country.
The convention provides that the enjoyment of these rights is not to be subject to any formality. Copyright results automatically from the fact of the production of a literary or artistic work. Most of the leading countries of the world are parties to the convention, and have long maintained the exclusive right of authors to copy their own works as a right automatically and without formality resulting from the act of authorship.
According to information in the possession of the Department of State, the following countries are now members of the International Copyright Union: Australia; Austria; Belgium; Brazil; Bulgaria; Canada; Czechoslovakia; Free City of Danzig; Denmark, with Faroe Islands; Estonia; Finland; France, with colonies and protectorates; Germany; Great Britain, with colonies, possessions, and certain protectorates; Greece; Haiti; Hungary; India; Italy; Irish Free State; Japan; Luxemburg; Monaco; Morocco, except Spanish zone; the Netherlands, with Dutch East Indies, Curaçao, and Surinam; New Zealand; Norway; Palestine; Poland; Portugal, with colonies; Rumania; Spain, with colonies; Sweden, Switzerland, Syria and Lebanon; Tunis; Union of South Africa; and Yugoslavia.
On January 13, 1931, the House of Representatives passed a bill (H. R. 12549, 71st Cong., 2d sess.) designed to revise the statute law of the United States in such a way as to eliminate any conflict that may exist between American law and the provisions of the International Copyright Convention, and this bill was sent to the Senate on January 14, 1931. It is suggested that adherence on the part of the United States to the convention may appropriately take place concurrently with the enactment of this bill.
To the Senate of the United States:
HENRY L. STIMSON.
With a view to receiving the advice and consent of the Senate to adherence thereto on the part of the United States, I transmit herewith the International Convention of the Copyright Union as revised and signed at Rome on June 2, 1928. I invite the consideration of the Senate to this convention instead of the Convention of the International Copyright Union signed at Berlin on November 13, 1908, and the additional protocol thereto signed at Bern on March 20, 1914, which were transmitted to the Senate by my predecessor in office on January 21, 1931.
According to the provisions of the convention as revised and signed at Rome in 1928, which I am now transmitting to the Senate, adherence to the convention as signed at Berlin in 1908 is no longer permissible. I call attention to this provision and likewise to the other reasons given in the accompanying report of the Secretary of State for asking the Senate to consider the convention as revised on the later date in lieu of the one previously submitted to it.
THE WHITE HOUSE, February 19, 1934.
FRANKLIN D. ROOSEVELT.
DEPARTMENT OF STATE, Washington, February 16, 1934.
On January 21, 1931, President Hoover transmitted to the Senate, with a view to receiving the advice and consent of the Senate to adherence thereto by the United States, the International Convention of the Copyright Union as revised and signed at Berlin on November 13, 1908, and an additional_protocol thereto signed at Bern, March 20, 1914 (Senate Executive H, 71st Cong., 3d sess.). Since such transmission, the Convention of the International Copyright