(2) The convention protects explicitly works of architecture and choreographic works and pantomimes, the stage directions of which are fixed in writing or otherwise. Our law does not mention explicitly works of architecture but these are deemed included in the broad terms of "works of art" in section 5. On the other hand, choreographic works, and pantomimes, the stage directions of which are reduced to writing, are covered by the terms "dramatic or dramatico-musical compositions" in section 5, so that again I see no conflict here between the convention and our law.

(3) The convention protects unpublished works in the same way as published works. Under our law unpublished works are protected by the common law but we do provide for registration of certain classes of unpublished works under section 11 in which case the copyright statute applies. Here there is a conflict with the convention and we would have to extend the protection of the act to all unpublished works. I shall again, however, remark that when it comes to international protection, the kinds of unpublished works involved are mostly those that we already protect under section 11 of our act.

(4) The convention protects moral rights of authors, in section 6bis. I have already pointed out that the convention only establishes a principle and that the application is left to the law of each country. The whole theory of moral rights is still to be worked out in our country and we can accept the engagement of the convention.

(5) The real and probably single conflict of our present law with the convention is in the stipulation of the latter that copyright is obtained upon creation of the work and is not dependent upon compliances with any formalities and conditions. This means that on acceding to the convention we will be required to protect foreign works without requiring that there should be a copyright notice on such works or that the copyright be registered following a deposit of copies or that they be manufactured in the United States.

I trust that our law will be amended shortly so that we will extend protection to foreign authors on the basis provided by the convention. I could explain fully the lack of substance of these requirements and how we can get along perfectly well without them but there may not be time to do that. Suffice it to say that under the decision of the Supreme Court of 1939 in the Washingtonian case the only real requirement for the acquisition of copyright under our present law is the notice of copyright and that we have large classes of works under this law which are protected without any condition whatsoever. I refer particularly to dramatic works and musical compositions which so long as they are not issued in copies to the public are protected by the common law.

The next question is: Do we need a previous amendment of our copyright law in order to give effect to the stipulation of the convention for copyright protection of foreign works without compliance with any formalities and conditions? If we need such previous amendment, it would follow that our accession to the convention would be ineffectual and we should not undertake the engagement. My submission is that we do not need to wait for the amendment of the law. The courts will apply the convention and will protect foreign works entitled to the benefit of the convention, regardless of the requirements of our law. This is now certain under the decision rendered on December 9, 1940, by the unanimous Supreme Court in the case Bacardi Corporation of America v. Domenech, treasurer, which held that an international convention supersedes the domestic law to the contrary.

The convention provides that on acceding to it, a country may fix the date from which it desires such accession to become effective. I would submit that the President on acceding to the convention may notify that the accession shall become effective after a certain period, say, of 6 months, thus providing for a period within which Congress may adopt the new bill which will amend our present law.

This

In 1935 when accession to the convention was voted on unanimously by the Senate, the argument was made that in Germany and Italy certain discriminatory measures were taken against works of certain authors, particularly Jewish authors, and that in view of this we should not accede to the convention since under this we would protect the works of German and Italian authors. argument does not stand analysis. To begin with, German and Italian authors are now protected in the United States under the regime of Presidential proclamations and we cannot discriminate against them under our law. Secondly, by acceding to the convention we would strengthen our position in the two countries in question against the discriminatory measures in question since we would

then have the protection of the convention and not merely of the German law. Thirdly, the violation of the convention by a country should not lead us into abandoning the effort to uphold such convention. It is probably true that the Nazis have violated the Postal Union convention in more than one respect in the past but no one would maintain that we should drop out of the Postal Union for that reason. There is a creative element in every convention and we should not be deterred into seeking protection of private rights by international conventions regardless of temporary lawlessness and disregard of engagements.

I believe that accession to the International Copyright Convention should be consented to by the Senate at this time for several reasons:

(1) Because we would put an end to a situation that has not been flattering to the prestige and the dignity of the United States when more than 40 countries in the world, including the British Empire, Japan, France, Germany, Italy, have for many years given full protection to the works of authors and artists under the convention.

(2) Because the United States is now an exporting country for literary and artistic works and we must protect our interests which are interests of authors, producers, and labor, by taking advantage of the protection of the Convention and putting an end to the piracy of American works in foreign countries.

(3) Because by acceding to the convention we would be placed in a stronger position to establish more adequate inter-American copyright protection. Many of the Latin American countries have refused to protect adequately foreign works in view of the example which we have given. Already Brazil and Haiti are parties to the International Copyright Convention. Uruguay and Argentine are probably on the point of acceding since they have modernized their law in 1933 and 1937, respectively, by protecting foreign works without any condition or formality.

(4) Because accession particularly at this time would be an act of faith on our part in instrumentalities of law, order and cooperative action for the protection of private interests and this act would strengthen the moral force of the convention and prevent lawlessness in this field.

Senator THOMAS of Utah. The next witness is Dr. McClure, of the State Department.

STATEMENT OF DR. WALLACE MCCLURE, OF THE TREATY DIVISION OF THE DEPARTMENT OF STATE

Senator THOMAS of Utah. Dr. McClure, will you state your name and your position, please?

Mr. MCCLURE. My name is Wallace McClure. I am Assistant Chief of the Treaty Division of the Department of State.

Senator CAPPER. How long have you held that position?

Mr. McCLURE. I have been in the Department, sir, for about 20 years. I have been in the Treaty Division of the Department for about 12 years.

I should like, if I may, Mr. Chairman, in opening my remarks, to say for the benefit of my friends gathered around this table, particularly my friend Mr. Gilbert, here, that I am not a philosopher; and, for the benefit of all my friends, that I am in no realistic sense a lawyer; so I am simply going to approach this question as a member of the civil service of the United States, which I am. As such, I am

of course not unaware of the fact that I have taken the oath of office to support the people of the United States and to try whenever I should be testifying on an occasion of this or any other sort, as I interpret my oath of office, to favor the public interests involved in this thing.

Senator CAPPER. Are you speaking for the State Department, now? Mr. McCLURE. I am speaking for myself, sir, in regard to my own term and position in the State Department; but I am speaking for the Secretary of State, having been sent here for the purpose, insofar as the discussion of the copyright treaty which is before us

is concerned; and desiring, if I may, to try to present it from the point of view of the public, I should like to stress, even at the risk perhaps. of repeating some of the things that have already been said here this morning, the fact that there is a great public policy in this country, which has as its motive an effort to make the people of other countries understand the culture of the United States, if we can present it fairly to them, and equally an effort on the part of our own people to receive unprejudiced and undiluted, unperverted impressions of the culture and the thought of other countries.

Now, I maintain, gentlemen, that that is not going to be successfully done if we, in the one field of international law that definitely does have a bearing upon cultural relations, are going to permit perversions and distortions to take place, if there is any possible way to stop it. Of course, there is no way of getting 100 percent perfection in this matter. There is a way of getting a better instrument than we have had before to stop this thing, and it is that which the Department of State is asking you gentlemen to give us.

I have sat there at my desk day after day and year after year, and I have seen the cases come through the Department of State in regard to the piracy of American works. I am not interested at the moment in discussing those cases, though those cases are of great interest individually to the particular people that are being robbed. I am interested in discussing the cases as a whole, now, and immediately, because the whole of those cases shows that the cultural relations of the world are not being carried on in the best way, that they are being carried on in a way that permits of perversion and distortion, and consequently that if carried far enough they will ruin the whole objective of that large phase in the international policy of the people of the United States; and that phase is not unimportant, gentlemen. It may be general; it may not be legalistic; it may not even be philosophic, but it is important to the people of the United States, because you know and I know, every one of us knows, that "as we think in our hearts, so are we.' As our thoughts and our culture are presented to other peoples, so are their opinions of us; and as their thought and their works of art and literature, their music, are presented to us, so they are to us. Only as we can understand each other through cultural relations, that lay the basis, many people are beginning to believe these days, and I think not without a good deal of justification, is there a fundamental basis upon which to build the decent international relations that we want in the future, relations that somehow or other can stir the world out of the chaos in which it now is. We won't do that, unless we understand each other. Cultural relations is one means of helping us to understand each other.

A decent copyright law governing the dissemination of cultural works among countries is a means toward decent cultural relations and effective cultural relations, and that is the reason why we are asking for this additional copyright law at this time. We never needed it before as much as we need it at this time. We need it now in the world of chaos. We need it to build up a reconstructed world after the chaos is over, and I submit to you gentlemen that this question before you is not a question of some little legalism, some little reservation, some little special interest, if I may use the term. It is something that we have got to consider as one brick in the great wall we are trying to build, that will keep away from us in the future the waves of

chaos that in these days overrun the world and have to a large extent submerged it. Now, that is the setting in which I think we should consider this thing, and I trust that no interest of a special character will allow itself to intrude into the consideration of something that has this large importance.

This copyright convention can be a brick in the wall that we are trying to raise against the wrong kind of international relations that we have heretofore had. Now, I am going into some other phases of this thing. I want to show you some particular instances of what has occurred, to back up the general statements that I have made. Why does it pervert? Why can there be perversions? Why are there perversions?

Well, the very natural reason, the very apparent reason is that people can make money out of them if they are not restrained by law. Law does not always restrain the wrongdoer, but Mr. Kilroe, himself, is a good enough lawyer to know that if he goes into court he would rather have the law on his side.

Mr. KILROE. I would rather have the judge, as a practical matter. [Laughter.]

Mr. MCCLURE. Well, if you are going to have the judge, Mr. Kilroe, you would like to have the law, too, would you not?

Mr. KILROE. Yes; I would like to be protected on the two; yes.

Mr. MCCLURE. You would rather have the law than not have the law?

Mr. KILROE. That is what Mr. Choate said years ago.

Mr. McCLURE. I am asking for this. I am asking that the Department of State have the law on its side when, through its diplomatic officers, it makes representations to other countries, and I am asking that we have a real law with teeth in its provisions, rather than the inadequate law which we have usually had in the past, which has proved inadequate over and over again, because we have not been able to use it effectively. We believe we can use this very much more effectively, and because we want in our warfare against the piracy of this time weapons of the twentieth century, not of the nineteenth, we are asking for this modern, improved law governing copyright in the international field.

I said I would bring forth a few instances showing the actual way the thing has worked. Let us take the case of Japan, for instance. Now, Japan, as has been brought out here, made a reservation under the convention that it might limit the translation rights to 10 years. Ten years is now a long time and most of our needs would be taken care of in 10 years if we accept this convention. When the United States becomes a part of it, with the law on our side for 10 years as to translation rights in Japan, I trust that what this dainty little volume that I show you represents will [at this point witness exhibited a very small, almost a vest-pocket size book in Japanese, and also a copy of the large volume containing the English original; also certain other books] not occur again. This nice, dainty, little Japanese volume purports to be a translation of Margaret Mitchell's novel Gone With the Wind. Gentlemen, here is the English original of that novel. Do you suppose that an adequate idea of American culture as expressed in Gone With the Wind is contained in this very nice little volume that I have in my left hand? Possibly. I have not read it. I will be frank to say that. I dare say very few of you would try to read it, even though it seems so brief.

Now, this same case of Gone With the Wind, which we have had up in the State Department, brings me to another point I should like to illustrate. Here are two volumes that are pretty much the same thing. I think Mr. Randolph would be very much interested in this, as well as all of you. We have discussed these things before. This is an original. This is a photographic piracy, of the English of course, made in Shanghai. Now, if you will look through this, while it is not so nicely gotten up as the Macmillan Co. gets up its volumes, the Shanghai pirate did not do so badly. From page 1 to page 1037 it is exactly the same, photographed page by page, brought out in China and sent to various places, I know not where, for distribution. Is that the way we want American culture distributed? Well, there, perhaps, it does not amount so much to a matter of culture, because it is photographed, but it does amount to a matter of control, effective control by the author.

Now, let us follow such piracies into the South American countries. We know that these pirated editions go from the Far East to the South American markets. Do we want our culture distributed that way to the South American markets, or do we want to try to put a stop to the sale of these unauthorized editions there?

This treaty that we have, of course, is not going, ipso facto, to stop this sort of thing in China, and it is not going, ipso facto, to stop the sale of it in all of South America, but it is getting a start on a correct copyright policy, which, if we develop it as we naturally would propose to do, we can build into a system that will be effectual. We will never build up a copyright law that will be effectual for anything as long as we simply sit around and do nothing about it as we have for the last 10 years.

I submit that we have an opportunity here, and a golden opportunity, to do something about it, because this treaty insofar as it can come into effect among the countries of the world will give a legal basis upon which our Government will stand a very good chance of being able to get this thing stopped, because it will have the law on its side, and because it can, having the law on its side, at least stand up and strive to induce other countries, in many cases that do not admit of any sort of effective action now, to take action that will be favorable to American culture.

Incidentally but very really, the interests of the American authors. involved and the American publishers involved, and, most important of course of all, the people who in the United States do the work of manufacturing the books that come out, the books and the motion pictures and all other materials that are copyrighted and sent abroad, will be taken care of.

That brings me to the second point that I want to particularly stress before this committee, and that is the fact that on the basis of commercial relations the United States has much more to gain from this convention that it can possibly be asked to pay for this convention. I am not saying that we would get everything and pay nothing. I myself have no faith whatever in things that come without reciprocity, things that come without payment, and I do not believe anyone gathered around this table has. We expect to pay for it, but I am going to show you if I can that it is in our favor. It does not mean it is not in favor of the other parties. It is in their favor, too; in order to be