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monopolist, so also are you ; so also is every man. If I have no right to those products of my brain, neither have you to those of your hands. No one can become the sole owner of any article whatever; and all property is 'robbery.' In the copyright debates of 1891 Senator 0. H. Platt rightly said : “ The very essence of copyright is the privilege of controlling the market. That is the only way in which a man's property in the work of his brain can be assured.” The proposed bill specifically provides that the author may sell his rights of reproduction severally, and if he chooses, Mr. Sousa could under the bill seil separately the right of printed publication and give notice that any manufacturer of sound records may utilize his compositions on payment of a royalty which he may fix; but the law should not compel or restrict him in the matter. In the case of books a publisher often suggests to the author the general idea of a book, so that it would be doubly unjust to permit any other publisher to issue that book on the compulsory royalty scheme; and this may be true, though to less extent, in music.
The measure, in accordance with the precedent of the act of 1831, provides in section 19 that subsisting copyright may be extended through the longer term of the new measure, and also provides in section 6 for new copyrights in the case of secondary work based upon present copyrighted works or works in the public domain. But there seems no ground whatever for the contention of the opponents of the measure that in these provisions the existing “sound-record' reproductions of a copyright musical composition would be included under the new bill, unless the decision of the Supreme Court should indeed include them under the present copyright law. With regard to existing material, it is only new arrangements that are made the subject of new copyright--e. g., in the case of the well-known Schubert-Gounod Ave Maria, if the fundamental work had not been copyrighted previously to the passage of the proposed bill; or the copyright had expired, no one could be prevented from using it or making an arrangement of it, and an interpreter like Gounod could copyright only his distinctive arrangement. This should dispose of the plaint of the soundrecord opponents that the status of their existing property would be destroyed by the passage of this bill.
Aside from the sound-record interests, the only serious opposition to this bill has come from certain library interests, represented in the Library Copyright League, in protest against the restriction of importations. But, as Sena-, tor 0. H. Platt in the copyright debate of 1891 also said : “ The fundamental idea of a copyright is the exclusive right to vend, and the prohibition against importation from a foreign nation is necessary to the enjoyment of that right. The privilege of controlling the market is indeed essential.” The copyright laws of foreign countries, and our own copyright legislation previous to 1891, carefully safeguard this right; a foreign copy of an English copyrighted book may not be imported into free-trade England without the author's written consent. Unless an author can assure to an American publisher the American market he can not get from that publisher the price he would otherwise secure. In the international copyright amendment of 1891 Congress accompanied the manufacturing clause which prohibited the importation of foreign copies, even with the consent of the author, by a proviso permitting certain importations even without the consent of the author, on the homeopathic principle of vifsetting one restriction upon authors' rights by another restriction upon authors' rights! In the proposed bill the American Copyright League, acting on behalf of authors and to some extent mediating between publishers and librarians, has accepted a compromise permitting single copies to be imported by libraries without consent of the copyright proprietor. This permission was not extended to books by American authors, unless they should be out of print, not with any desire to get better terms for American than for foreign authors, but because it would be a very serious matter to permit ad libitum the encroachment on the American market. Moreover, the American author does not get for foreign editions the same royalty which he gets for American editions. This compromise has been accepted by the representatives of the American Publishers’ Copyright League on the one side and by the executive board as well as the delegates of the American Library Association on the other. But certain libraries, apparently in the desire to have a weapon against publishers in a contention about prices and discounts, object even to this compromise, and desire to import freely without restriction and without authors' consent.. The question of prices has no place in a copyright bill, nor can I, from the point of view both of a trustee of one of the largest circulating library systems
in the country, the Brooklyn Public Library, and of president of a Massachusetts town library, that of Stockbridge, my country home, recognize that libraries, which depend for their very being on authors, should challenge the rights of authors over their own property. The incidental fact that libraries are permitted to import free of duty has no relation with copyright, and the confusion of protection to property with tariff protection is equally misleading. Herbert Spencer, free trader above all, emphasizes the right of property in ideas as essentially a right of private ownership, and Henry George, who copyrighted his own books, has not proposed even as to land that the usufruct of a man's labor should be taken from him. There can be no difference between free traders and tariff protectionists as to such property rights.
The Constitution imposes only one limitation on the comprehensive rights of authors, in the provision that protection shall be for limited times only. This provision has made the discussion of perpetual copyright purely academic in this country. The proposed bill adopts the suggestion of the American Copyright League for a term of life and fifty years for originative as distinguished from secondary works. A copyright term extending through and beyond the life of the author has been adopted by thirty-seven countries, or more than half of those which have copyright laws, while five others give perpetual copyright; the term of life and fifty years is adopted by France and fourteen other nations, and although life and thirty years is proposed in Lord Herschel's British draft, life and fifty- years has also been proposed as an alternative in England (Birrell on Copyright). The injustice of any other than a life term is exemplified by the facts that Emerson, Longfellow, Lowell, Whittier, and Holmes outlived their earlier copyrights; that Edward Everett Hale, whose “Man Without a Country ” did for this nation a patriotic service scarcely second to that of the great generals of the civil war, has no longer copyright in this work, although private soldiers, their relicts and descendants, are still paid pensions; and that many others of our foremost authors have been, or under the present system would be, deprived of their created property within their lifetime. The term proposed in the bill provides for the author and his children's children during the probable minority of the grandchildren, a period to which the entail of realty is limited by our laws. One of the opponents of this bill has taken the strange position that such a term is not a “limited time,” although, citing the case of the daughters of Harriet Beecher Stowe, who have been left without benefit from her greatest works, though publishers are still profiting from them, he favors a straightaway term of one hundred years, which would be on the average a longer term than that provided in the bill. A term of fifty years is proposed for secondary or encyclopedic works.
Two important improvements upon the present law should be emphasized : That copyright is secured by (and dates from) publication, with “notice affixed to each copy thereof published or offered for sale within the United States by authority of the copyright proprietor," and that informalities or incidental lapses are not to void copyright, the innocent infringer, pending the fulfillment of the statutory requirements or actual notice, being duly safeguarded. Hitherto an error of a publisher's clerk or in the copyright office might actually forfeit all rights of an author, and this is carefully provided against in the proposed code. The date of publication is logically and properly defined as " the earliest date when copies of the first authorized edition were sold or placed on sale.” Previous to that date the unpublished work protected by the common law or in equity as supplemented by the provisions of this act. It should be emphasized that the public performance of a dramatic or musical composition or the public exhibition of a work of art does not constitute publication, which is by the multiplication of copies; this distinction is made clear throughout the proposed bill and should be carefully preserved. The bill follows the settled practice in this country as regards stage right and the latest judicial decisions as regards art exhibition. In respect to formalities, Mr. Ogilvie's argument that notice should be required on foreign editions—that is, extraterritorially--and that the accidental omission of notice from a single copy should practically void the copyright, is not supported by the instance which he cited, which refers to one of the well-known series of Webster's Dictionaries, notoriously of American origin, in a specific case where the changed title on an English edition compelled the copyright office to answer technically that it had no record of a book of the stated title. Justice to the author requires that informalities should not void copyright; justice to the unwitting infringer requires that he should not be held responsible for innocent transgression and both are carefully safeguarded in this bill.
It may also be pointed out that the opening of rights of dramatization and translation after ten years is a restriction upon authors' rights not found in the present law. Such restriction of the right of dramatization seems to have no precedent in other copyright systems, and it is pointed out by the dramatists that the successful dramatization of “ Ben Hur," involving large outlay and large profits, was not practicable until much more than ten years after the copyrighting of General Wallace's great novel. Such restriction of translations is a feature of the Berne convention, but not of our existing copyright law; and it has been the understanding that the new measure would extend and in no wise restrict the rights of authors. Moreover, the British Royal Commission, after summarizing the arguments on both sides, reported its conclusion that there seemed no sufficient reason that the right of translation should not be coextensive with copyright. It is therefore suggested by the American Copyright League that reference to dramatization should certainly be omitted from section 20, if the committee should decide against the omission of section 20 altogether.
The American Copyright League would respectfully emphasize the fact that the Constitution and the proposed measure provide for securing to authors their exclusive rights, and that any limitations of such rights other than the single one required by the Constitution are exceptions which require in each instance specific and adequate justification. As Senator Evarts pointed out in the debates of 1891 : "The sole question is what we shall do concerning something which is the essential nature of copyright and patent protection, namely, monopoly.” Copyright, as has been pointed out, is a monopoly not in the offensive sense, but in the sense of private and personal ownership only; the public is not the loser but is the gainer by the protection and encouragement given to the author. The whole aim of copyright protection is to permit the author to sell as he pleases and to transfer his rights collectively or severally to such assigns as he may choose. In making exceptions to this fundamental rule, therefore, the burden of proof should be upon those proposing to limit the exclusive and comprehensive rights of authors. The league, as representing authors' rights, has accepted certain limitations only as concessions in recognition of temporary or local conditions. The copyright legislation of most countries, as especially Great Britain, prohibits importation éven of authorized foreign copies except by the wrtten consent of the author, and in the compromises which led to the international copyright amendment of 1891 the league assented to the manufacturing clause limiting copyright to editions lithographed or printed in this country, a limitation which it trusts will not be extended, as suggested by one critic of the bill, to "other processes” of reproduction; and it was to balance this limitation that certain permissions of importation to societies and individuals were also accepted. One point more the league would emphasize; the prime reason for a revision of our copyright legislation has been the contradictory and confusing state of the present law. The proposed measure is to give a unified and consistent code. A copyright law is necessarily complex, and its several parts interdependent; and it is hoped such modifications will be considered, both in principle and in phraseology, with reference to other parts of the bill, and that the experience and the excellent workmanship of the Librarian of Congress and the Copyright Office may be availed of in the final shaping of any changes upon which the committees or the Congress may decide.
[For amendments proposed, see Appendix, p. 402.]
STATEMENT OF MR. ROBERT UNDERWOOD JOHNSON.
Mr. JOHNSON. Mr. Chairman, if I had taken the precaution to copyright my own introductory remarks, I think, even under the present inconsequent and imperfect penalty clause of the copyright bill, I might have been able to obtain considerable redress from Mr. Bowker.
It has been said in this committee hearing this morning that certain persons were engaged in a conspiracy. I plead guilty to being one of the persons who for twenty-four years has been engaged in a conspiracy of justice. It was my lot to be the secretary of the American Copyright League and of the joint committee of the different organizations which urged the copyright bill passed on the 3d of March, 1891; and from that time to this, although there has been
very little effort to do anything in the way of amendment of that law, the American Copyright League has felt it to be its special duty to keep the run of copyright matters and to keep guard over what had already been obtained.
For we believe, as representing the producers in literature, who are the only persons recognized by the Constitution of the United States so far as copyright is concerned, that we have a special call to guard the principle of copyright. Others may look out for their conveniences, others may look out for their privileges, others may look out for trade relations; but it falls peculiarly upon the producers and the representatives of the producers of literary, artistic, musical, and other property to stand for the highest objects that can be brought before the joint committee of Congress.
We therefore come to you with the words of Webster, and we say to you as men who have taken your constitutional oaths to establish justice, that“ justice is the first concern of man on earth."
We follow that with a quotation from Longfellow, who says that a good principle works well in a particular direction.
You are going to be called upon you have already been called upon in this presence here, you have been appealed to in the matter of trade relations, in the name of invested capital, in the name of many other things of subsidiary importance to the principle of copyright. Says Shakespeare:
This above all: To thine own self be true,
Thou canst not then be false to any man. If the committee is true to the principle of copyright it can not be false to the interests, to the legitimate and proper interests, of any manufacturer and publisher, financier, or other person who may be deemed to be interested in this subject.
In 1891 we were met in our campaign with exactly the arguments that have been urged here in favor of the mechanical reproduction of music. At that time there was no mechanical reproduction of music, or there would have been no need at the present time to consider any suggestion to make any alteration in this bill. At that time it was said to us that the unauthorized reprinters, who at that time were known by the name of “pirates "—for convenience only—had a very large amount of invested capital, and that their business was going to be ruined by the fact that the Congress of the United States was going to give them the right to acquire ownership in the things which they distributed. I challenge anybody to point to any calamity of that sort that followed the passage of the copyright law.
We were then told that the prices of books were going to be raised beyond the dreams of avarice, and we were told of other calamities. None of them have come. There never was a time when there was more vitality in the production of literature than to-day, and it is due in large part to the international copyright law. There never was a time when authorship was so well compensated; there never was a time when literature was so accessible at cheap prices. There is hardly an author of note who does not contribute to the magazines, and their number has been the wonder and envy of every other country. In other words, we went to those gentlemen who were engaged in the unlawful use of other men's brains, and we said to them, Now we show you a more excellent way,” and we have shown them a more excellent way, so that they can now lie on their beds without any compunction of conscience for having taken the property of other men to sustain their own lives.
Therefore, I say to you, Mr. Chairman and gentlemen, that in this case it is important to be borne in mind that the fundamental question is the question of right, the question of exclusive right, the same right that a man may have in his horse or house. For when people come to you and say to you that there is such a thing as copyright which is not exclusive, they are guilty of a contradiction of terms.
We have sent you a copyright bill which is the result of the most careful consideration, of the most catholic conference, to which everybody in this country, every organization in the country which can be presumed by the largest liberty of interpretation to be interested in the subject of copyright, has been invited. The labor has been great. I have taken part in that labor, and I know. There were three conferences of three days each on the preliminary and special work, all under the guidance and competent advice of the Librarian of Congress and register of copyrights, whom everyone knows to have been devotedly and sincerely interested in this matter, and with no bias or prejudice whatever. We have evolved a bill, and the American Copyright League comes to you, as the representative of the chief parties in interest, and asks you to pass that bill in substantially the form in which it is now published.
We do, however, desire to make some suggestions--one important one, and with that exception we believe the bill admirably satisfactory.
The bill has many excellent points. It is the fruit of the mistakes of the last fifteen years. The bill of 1891 was passed in almost the last hours of the last day of the last week of the last month of the last session of that Congress on March 3, 1891. We have had fifteen years in which to discover the defects of that act, some large, some small, some of which have been remedied since by special acts, as in the case of dramatic copyrights by the extension of one year to foreign authors.
Now we come to you to ask you to place the United States in the front rank of civilized nations in this regard by granting to us the extension of copyright, the main part of which is provided for in this bill.
Mr. CURRIER. Would your league object seriously if the committee should strike out paragraph b of section 1, on the first page of the bill?
Mr. JOHNSON. That is: To sell, distribute, exhibit, or let for hire, or offer or keep for sale, distribution, exhibition, or hire, any copy of such work.
Mr. CURRIER. That is viewed with a great deal of suspicion by many people.
Mr. Johnson. I have not had any occasion to discover in that-
Mr. Johnson. I should have to consider before making any statement about that. I do not see on what ground it is objected to.
Mr. CURRIER. It is objected to on the ground that it controls the sale.