UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT.White-Smith Music Publishing Company, appellant, against Apollo Company, respondent.Judges Lacombe, Coxe, and Townsend.These causes come here upon appeal from a decree of the United States circuit court for the southern district of New York dismissing bill alleging infringement of copyright. The facts are stated in the opinion of the court below. (139 Fed. 427.)Per curiam: The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant.But in view of the fact that the law of copyright is a creature of statute and is not declaratory of the common law and that it confers distinctive and limited rights, which did not exist at the common law, we are constrained to hold that it must be strictly construed and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute.We are therefore of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainant's staff notation, for the following reasons:It is not a copy in fact; it is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true, would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that because the roll is a notation or record of the music, it is, therefore, a copy, would apply to the disk of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforation in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine, or musical playing device, is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's composition to the public.The decree is affirmed, with costs.
UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT.
White-Smith Music Publishing Company, appellant, against Apollo Company, respondent.
Judges Lacombe, Coxe, and Townsend.
These causes come here upon appeal from a decree of the United States circuit court for the southern district of New York dismissing bill alleging infringement of copyright. The facts are stated in the opinion of the court below. (139 Fed. 427.)
Per curiam: The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant.
But in view of the fact that the law of copyright is a creature of statute and is not declaratory of the common law and that it confers distinctive and limited rights, which did not exist at the common law, we are constrained to hold that it must be strictly construed and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute.
We are therefore of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainant's staff notation, for the following reasons:
It is not a copy in fact; it is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true, would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that because the roll is a notation or record of the music, it is, therefore, a copy, would apply to the disk of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforation in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine, or musical playing device, is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's composition to the public.
The decree is affirmed, with costs.
Mr.Olin. The second extension or modification of the present rights of the copyright proprietor as against the public are those instances mentioned yesterday by the chairman of the House committee in regard to the exceptions to the prohibition of importation. As the law stands to-day the importation into this country of a book which is copyrighted here is prohibited, and there are certain exceptions, in the first case, of certain libraries and colleges who may import not exceeding two copies in one invoice, and individuals who may import not exceeding two copies in one invoice. This bill makes a modification of the present rule.
I would like to call the attention of the committee to the reason why the present law is as it is, and the reason why this suggestion of amendment is made. Of course, prior to 1891 there was nothing like this in the law. The law was perfectly simple, and had been perfectly simple for a hundred years. There could be no importation of the copyrighted article from abroad without the consent of the copyright proprietor. With his consent it could be freely imported. So far as I know there had never been the slightest dissatisfaction on the part of copyright proprietors or of the public with the working of that rule. As a matter of fact, it was to the interest of the copyright proprietor to bring in, I will say, the English edition of the book which he was publishing here, and to sell it—and so far as the public wanted it they always got it—at his shop or at other shops, through the regular channels of trade, so that the public and he alike were perfectly satisfied.
Mr.Currier. Were there any importations before 1881?
Mr.Olin. Before 1891? I think there were.
Mr.Currier. With the consent of the copyright proprietor?
Mr.Olin. I think, as a matter of fact, if you went into a bookstore you always found and could buy, at a somewhat higher price——
Mr.Currier. That is not the question. Were there any importations of such books?
Mr.Olin. There were, by the copyright proprietors, who put them on sale and sold them through the trade.
Mr.Currier. Importations solely by the proprietor of the copyright—not by individuals?
Mr.Olin. Yes, sir; not by individuals. Congress undertook in 1891 to do two things: First, to admit to the privileges of copyright the foreigners resident in certain countries; and, second, to require that the manufacture of copyrighted books should be by American typesetters and plate makers here in this country. And they undertook to do these things with the minimum changes in the language of the statute. They inserted a few words in one section, and then a few words in another, and both of the desired results were brought about, just as they exist to-day. Then, in the last part of the discussion in Congress, as I remember it—and I am open to correction as to the historical account—it became apparent that the typesetter was not duly protected if only those changes were made, for the reason that the copyright proprietor, having the free right to import books from abroad, might perhaps comply with the typesetting clause colorably only, in an imperfect way, and might satisfy the public demand for his books by importation of those set up and printed abroad. Therefore, at the typesetters' request, there was imposed a prohibition of importation which affected the whole world, including the copyright proprietor. Nobody could import books.
Mr.Currier. That was a perfectly satisfactory provision.
Mr.Olin. That was a perfectly satisfactory provision, both to the copyright owner and to the typesetter; but then the general public were heard, and they said "no;" an English edition may be better than an American edition, for one reason or another, and you must not deprive us of the privilege of getting the best books. Libraries were heard, and individuals were heard. And Congress then hit upon this expedient, which was very simple and on the whole has been very effectual. Congress said:
But this prohibition shall not apply in the cases mentioned in certain specified sections referred to of the tariff act.
But this prohibition shall not apply in the cases mentioned in certain specified sections referred to of the tariff act.
The sections of the tariff act referred to enumerated a certain number of classes which Congress had thought were worthy of benefit from the Government to the extent of allowing them to import books in limited numbers free from duty. So there was ready-made for the hands of Congress a certain list of people who import books who might be allowed to benefit at the expense of the copyright proprietor, just as they had been theretofore benefited at the expense of the customs. That is the law as it stands to-day.
Then Congress added this further provision, that any individual also shall be allowed to import not exceeding two copies in one invoice on payment of the duty thereon, for use, and not for sale.
Like every other provision of a law after it has been duly tested by use, it is fair to bring it before the legislature again and to call attention to its results, and that is especially true where the provision of law was necessarily adopted with haste and was obviously a mere expedient for arriving at a wished-for result. And when this conference convened the publishers said: "To some extent this section has worked badly in certain ways," which I shall now point out. The librarians in libraries and the colleges have generally availed themselves of this privilege, being coupled with the privilege to import without the payment of duty, and have imported copyrighted books in those ways in large numbers. How far individuals have availed themselves of their privilege it is impossible, or at all events would be difficult, to tell; probably not to any great extent. The number of men who care so much for an English edition of a book that they are willing to write for it to a London bookseller and import it themselves is not very large.
So far as it goes, the privilege of importation is an inroad on the rights given to the copyright proprietor. It is an inconsiderable inroad so far as most popular books—novels and the like—which have circulation are concerned. The few hundred books that come to individuals here amount to not a very substantial burden upon the proprietor of such copyrights. But there are certain classes of books, expensive to produce, and with a very limited circulation—books of a scientific character, books illustrated with plates—and they circulate among the precise classes; that is, the libraries and the colleges and these individuals who are particular about their libraries, the precise individuals who import books under these exceptions; and there were instances brought before the conference where publishers here had declined to undertake a book which would have been valuable to the public, which would have been valuable to the typesetter to set up, and the American publisher to bring out, and to the American bookseller to sell, for the reason that the very limited public which these books addressed would all, in the natural course of events, have their demands filled through these exceptions to the prohibition of importations.
That did not hurt the libraries or the individuals who habitually get English editions. It did hurt, we maintain, the American public, the reading public, and a great many individuals among the American producing classes. So that there was a modification requested of the present rules, and the modification in regard to the libraries is this: There is to be not exceeding one copy to be introduced on an invoice, the privilege is not to relate to books which have their origin here in America. With your permission, I will briefly explain those two points. In the first place, ordinarily a library or a college needs only one book at a time. If it needs another copy of the same book it is not too much to ask that it make another importation to bring it in. Under the present rule, while delicate and careful men would not take advantage of it, it is constantly a temptation to a librarian who can import free of duty and free of the copyright proprietor's claims, two copies of a book from England, to import one for the legitimate use of the library and one for some other use. The effect of that influence can not be particularly measured.
The other point is one which can be clearly understood. It is now the right of colleges and libraries, an important right, that in case of an English book they should be able to get the English edition, which in some instances is more complete or for other reasons better than the American edition. But it can almost never be an important right to obtain the English edition of an American book since the American edition is almost always more complete, or equally complete. So that the right to import the foreign edition of an American book, a book of American origin, would ordinarily be confined to the Tauchnitz and the like editions with which the gentlemen of the committee are all familiar, where a continental publisher publishes English and American books for the benefit of travelers, and they are not allowed to be reimported into England or America. It seems to the publishers fair that the same rule which applies to every Englishman and every American as to such Tauchnitz editions should be applied to libraries; that is, that they should get the American edition, and not the other, of which the only advantage is cheapness, arising from its special purpose.
Whether or not these are reasonable changes has been very largely passed upon, it seems to me, in the controversy that has gone on with the American Library Association, which is a very powerful and very diligent and active association, and which has been very much interested in these matters; and in laying before you their approval of the bill in its present shape, it seems to me that as to this clause it must establish in the minds of the committee a clear prima facie case, at least, that this compromise that is agreed upon is a reasonable compromise. There are gentlemen here who represent certain libraries who, I understand, think that it is not a reasonable compromise.
Mr.Currier. That minority is a very strong one, is it not?
Mr.Olin. I think it is a strong one; and they undoubtedly will be heard. They object that this compromise goes too far; and all that we can reasonably ask the committee at this moment is that if it occurs—if it seems to the committee that what this minority of librarians have to say overcomes the presumption of fairness that arises from a compromise satisfactory to the majority—that then the publishers may have their opportunity of showing to the committee that it is a fair compromise and a reasonable disposition of the matter.
Now, we come to the next clause of these exceptions.
Mr.Currier. Just an instant. Would the people you represent object seriously to an amendment to subdivision 3, on page 16, which would strike out all after the words "United States" where they occur?
Mr.Olin. On page 16?
Mr.Currier. In the tenth line of subdivision 3.
Mr.Olin. Are you reading from the printed form of the bill?
Mr.Currier. The library print.
Mr.Chaney. Section 21?
Mr.Currier. I have not compared them. I have been using the library print all the time.
Mr.Chaney. Just take the other bill.
Mr.Putnam. Section 30 of the bill.
Mr.Chaney. Page 24 of the Senate bill.
Mr.Currier. Now, strike out all after the words "United States," in the twenty-fifth line, down to the fourth section.
Mr.Olin. I am now speaking merely for the publishers, whom I do represent generally, and not for these other associations.
Mr.Currier. I was simply asking if the people whom you represent would make serious objection to that amendment.
Mr.Olin. Speaking only for the publishers, I think they would. I think they would wish to be heard fully on that before any such change was made.
Mr.Currier. Right in that connection, let me call your attention to the first subdivision, beginning on line 13, which deals with the importation for an individual.
Mr.Olin. On what page?
Mr.Currier. Page 24, line 13.
Mr.Olin. Yes.
Mr.Currier. We would understand, would we not, that that was a practical prohibition of importations by individuals?
Mr.Olin. No, sir.
Mr.Currier. Do you imagine that a book would ever be imported by an individual under that provision?
Mr.Olin. I should think they would be habitually, and to a much larger extent than at present; and I will give you my reasons for it.
Mr.Currier. Would it not be a considerable inconvenience to secure the permission of the proprietor of the copyright?
Mr.Olin. I should think none at all.
Mr.Currier. We would be glad to hear you on that, because it occurred to me that that was an absolute prohibition, in effect.
Mr.Olin. I am glad to have my attention called to this, because this is a matter where we have not been able to make any compromise. There are no representatives of the public who could discuss such a compromise, and we come before the committee to submit it to their judgment as to its fairness in the first instance.
What I want to call the attention of the committee to is that the effect of this is simply to put the business back, as to importing one copy, to the condition that existed before 1891 as to importing all copies. We would be very glad, the copyright proprietors would be very glad, and the public would be very glad if it could altogether go back to that condition; that is, if you say books shall not be imported without the consent of the copyright proprietor. The copyright proprietor would then, as he did before, import books and put them into the trade and sell them freely.
Mr.Currier. Yes; the proprietor would import, but I think, in answer to an inquiry a few moments ago, you said that under the former law individuals did not import.
Mr.Olin. No; but they did not need to.
Mr.Currier. Under that provision beginning on line 18, while the proprietor might import, do you think an individual would ever import—go to the trouble of getting the consent of the proprietor?
Mr.Olin. I think the practical working of that would be just this——
Mr.Currier. I am only asking for information.
Mr.Olin. The practical working would be this: Scribner & Co. would publish here a book which was also published in England. An individual would wish to get a copy of it in the English edition, and he would either go to the Scribners' store, or write to him, or he would go to his bookseller, who would send word to the Scribners, asking that a copy should be imported for that individual through Mr. Scribner, and Scribner would import it for him. That is to say, the individual would have far less difficulty, wherever he was situated throughout the country, in getting the English edition of the book than he has at present, when he himself writes to an English bookseller in London and imports it himself.
Mr.Currier. I am not expressing any opinion at all as to the correctness of that proposition, whether the individual should not be prohibited from importing.
Mr.Olin. My point is that the facility with which the individual would obtain an English edition of an American copyrighted book would be greatly increased by the passage of this bill, because it would put it in the regular course of business, just as it used to be before 1891, for the owner of the American copyright to see to those importations. The law would not allow the proprietor himself to make the importations, but he would be exceedingly glad to import that book for A, B, C, D, and E, all over the country, and to make it just as easy as it was possible to do for them to get that English edition.
Mr.Currier. I am not at all sure that that is not so, but I think you agree with me that the individual himself, under that provision, would never directly import a book.
Mr.Olin. I think he would not.
Mr.Currier. The proprietor would always do it for him.
Mr.Olin. It would be so much easier for him to make the proprietor his agent, and the proprietor would be so glad to act as his agent, and it would be so much to the interest of both parties that that should be so that that would be naturally the course that it would take.
Mr.Hinshaw. Under existing law is the proprietor of the American copyright seriously injured by these importations?
Mr.Olin. In ordinary cases, as I said, he is not seriously injured—that is, in the case of popular books he is not substantially injured at all. He does not know how much he is injured, because there is no means of estimating the precise amount. It is an injury, but how great he does not know.
Mr.Hinshaw. It is a sufficient injury, so that you think it ought to be restricted?
Mr.Olin. It is a sufficient injury, especially in the cases that I have spoken of, where valuable books that cost very much to produce and that have a limited field of sale are in question, and there it does repeatedly prevent such books from being published in America.
Those are the only two limitations which affect the general public until we come to this provision of the bill which increases the term of the copyrights in different cases. As to them, of course the main argument is made by the producer, the author, or artist. He is the one who wants that addition to the term, and it is a matter of no great importance to these general organizations of reproducers whom I represent, one or two of them permanently and some only for the moment. But we may fairly make these observations: First, I repeat what was very clearly put by the Librarian yesterday, that the copyright is simply in the form of an idea, as the patent right is in the idea itself, and that consequently there is never like oppression to the public from the monopoly.
If I have a patent on a needle with the eye in the point, nobody in the country can use that until my patent is out, and that is a great oppression. If I write a book about a needle with the eye in the point, or about anything else under the sun, my idea, for what it is worth, is at everybody's disposal when my book is published. He can not copy my form, but whatever good the idea does him in his own thinking or his own work he has. That is the first consideration which has always actuated Congress and all governments, so far as I know, in making the copyright term much more extensive than that of the patent.
Then the next is a practical consideration which I think must be within the knowledge of every member of the committee, and that is that for practical purposes in most cases the public gives up nothing by extending the term, for the reason that at the end of forty-two years a very great majority of copyrights—I hesitate to say how large the majority would be—has become worthless. As a matter of fact, it is familiar to every member of the committee that people do not reproduce books that have fallen into the public domain by the expiry of the time of the copyright, except in very special cases of particularly popular works. So that in most instances the public would not be giving up anything really in adding to the end of this term a certain number of years.
Then, next, there is the consideration that in practice it is true that the public does now get the fullest opportunity to buy cheaply (which, I think, must be the only interest of the public as distinguished from the interest of the different producing classes) because books start at a certain price and at the end of a year they go down below that price. At the end of two years there are new editions at perhaps half the price, and in a very few years the publisher is making every effort to attract the public by every reduction that is possible.
There is one other consideration that I think may possibly be alluded to, and that is that since this term was fixed, partly by the improvements of science and partly by changes in legislation, the actual value of a given term of copyright has diminished. Part of the value of a term of copyright was always that at the expiration of the term the owner of the copyright had the plates and had the books and could compete to great advantage with other people. His right, his privilege in that respect, has been largely taken away by these photographic processes which have come into use. It is not necessary for the man who wishes to publish a book to go to work and have type set for it. He simply takes the existing edition and he photographs it, and he does that with great cheapness. Perhaps there would be an answer to this suggestion that the public should have the advantage that would come from all such cheapening processes; but it seems to me that it could reply that Congress has prohibited the copyright owner from taking advantage of these processes, by saying that he at first must make his book, as long as the copyright exists, in the most expensive way, from plates made by American mechanics and who receive American wages; and consequently that he is handicapped from the beginning.
I do not wish to press this argument unduly. It is something, it seems to me, that may be suggested to the committee, whether or not this committee is now to act with the same liberality which Congress showed when the existing term was fixed, if it would not necessarily in some degree extend the term by reason of the facts to which I have referred.
There is only one other, so far as I know, important extension of the right of copyright contained in this bill, and on its face it appears to be a matter of inadvertence. It is contained in section 8, where there are provisions A and B, on page 5. The present law of copyright allows a foreigner to take out a copyright if he is a resident in the United States, or if he is a citizen of one of those countries which allow similar privileges to citizens of the United States. Those are the two categories.
At first glance at A and B, in section 8, it would appear that those were intended to represent the same classes and to give precisely the same rights; but, apparently by inadvertence, in the second line of subdivision A the word which should, I think, be "and" has become "or," so that as it at present reads a foreigner, no matter where he lives, no matter whether the country of which he is a citizen gives similar rights to citizens of the United States or not, may, if he shall first or cotemporaneously publish his work within the limits of the United States, have a copyright. I am not here to say that that would not be a wise extension of the law. I am not here to say on behalf of any of the parties whom I represent that they would or would not oppose it. I do not know anything about their views. This extension of copyright is not an extension which has been discussed in the conference. I have no right to give any approval of it, even to the limited extent that I have a right to give an approval of this bill on behalf of any of these bodies whom I represent.
Mr.Bethune. Would not the interest of the publishers be safeguarded if the law provided that an individual may import one copy of the foreign edition, but only after he has asked the proprietor of the American copyright to buy one for him and his request has been refused?
Mr.Olin. If the committee chooses to put that in, I can see no harm in it at all. It seems to me that it will result in that, necessarily, if the American publisher is not actuated by his own interest, as he used to be prior to 1891, and as I think he would be again, and if he is not glad to import that copy from abroad. If he refused I think if anybody who is aggrieved should come to Congress, Congress would change the law instantly and compel the copyright proprietor to give consent; and if Congress thinks it right to put in that provision in the beginning nobody could complain. So that my answer is that I do not think anybody would object.
Mr.Johnson. I would like to ask if an American citizen traveling in Europe should at the time he was there purchase one of these editions, would it not be a hardship on him to compel him to forego the bringing of that copy into the United States without the consent of the American proprietor?
Mr.Olin. Is that question addressed to me?
Mr.Johnson. Yes.
Mr.Olin. If a hardship, it is inflicted by the English custom-house at present in regard to these very Tauchnitz editions. It is one of the few things they are rigorous about, and I think members of this committee may have had experience with the English customs and their rule about that. But in this bill it is provided that where there are parts of libraries or books in baggage brought back by traveling people they shall be admitted. I think it is a question of de minimis. I think in the case of a man bringing back such a book it would be no hardship worthy of the consideration of Congress.
Mr.Johnson. All personal baggage is included also?
Mr.Olin. Yes.
Mr.Putnam. For the information of Mr. Johnson, Mr. Chairman, I think that Mr. Olin was referring, in answer to that question, substantially to subsection 4, on page 25, which was supposed to take care of the person bringing in copies in his personal baggage.
Mr. Ogilvie is here from Chicago, but before his statement is made I wish to say that, as I understood, Colonel Olin spoke in two capacities; in the first place, giving some general expression in behalf of a certain group of organizations, and their substantial acquiescence in the bill; in the second place, as counsel specially for the book publishers, with reference to certain particular provisions, particularly this importation clause.
Mr.Olin. Yes; and, finally, I wished merely to modify the general approval of the bill which I had given on behalf of all these organizations, by expressing my understanding that they considered the bill, as I supposed was intended, with "and" instead of "or" in the second line of subdivision A, in section 8, on page 5.
Mr.Putnam. In that latter capacity, the provisions of the bill as to which Colonel Olin spoke were those as to importations particularly affecting the interests of the libraries; and, considering what will be most helpful to the committee, it would seem to me appropriate, and I submit it as a suggestion, that as soon as possible after the statement that you have had from Colonel Olin in explanation of those provisions you have the statement from representatives here of the group of libraries—librarians—that would dissent from the provision. Mr. Cutter is here, and, if I understand him rightly, his statement will be brief. Mr. Ogilvie, however, had been promised an opportunity to be heard early this morning. As I understood him, the oral statement that he proposes to make is an objection to certain provisions of the bill, and that he would be content with an opportunity for a ten-minute statement, to be supplemented, if he chose, in writing, to go into the record.
STATEMENT OF GEORGE W. OGILVIE, ESQ., OF CHICAGO.
Mr.Ogilvie. Mr. Chairman and gentlemen of the committee, as I understand that this bill is to take the place very largely of the copyright act of 1891, it may be proper to refer to some of the arguments that were advanced at that time as to why that particular bill should pass. In furtherance of that idea, I read from The Question of Copyright, by George Haven Putnam, on page 103, in which it is said:
It is admitted that the proposed act or any other of a similar nature will raise the price of the very cheap reprints of English stories yet to be written a few cents apiece. A pamphlet of that sort now costing 20 cents will then cost 25 cents. Of the additional price, 2 cents will go to the author and 3 cents will go into better paper, better print, and better binding. For the 5 cents of increased cost an American story will be furnished oftener than an English story, an American author will get pay for his labor, and the reader will get a book that is 100 per cent better than the old one in paper, print, and binding.
It is admitted that the proposed act or any other of a similar nature will raise the price of the very cheap reprints of English stories yet to be written a few cents apiece. A pamphlet of that sort now costing 20 cents will then cost 25 cents. Of the additional price, 2 cents will go to the author and 3 cents will go into better paper, better print, and better binding. For the 5 cents of increased cost an American story will be furnished oftener than an English story, an American author will get pay for his labor, and the reader will get a book that is 100 per cent better than the old one in paper, print, and binding.
I submit that if an additional cost of 3 cents is to go into paper, print, and binding, and will produce a book that is 100 per cent better than the 20-cent book, and 2 cents of the increased price is to go to the author, that the publisher would receive no benefit whatever; and it is well to bear in mind that the disinterested patriots who requested the passage of the international copyright law did so for the purpose of benefiting not themselves, but the author of a book 2 cents per copy, and the producer of paper, printing, and binding 3 cents per copy, out of which they got nothing. It is the same gentlemen, as I understood it, who were sponsors for that bill who are the sponsors for this. Twenty cents per copy for a book costing 3 cents to produce shows a profit somewhere of 666 per cent; and it is probable that they were satisfied with that percentage. As a basis for further remark along that line, I desire to draw your attention to section 13 on page 6 of the bill, as I have it here.
Mr.Putnam. That is the library copy.
Mr.Ogilvie. It is section 13 of the third paragraph [reading]:
Any person who, for the purpose of obtaining a copyright, shall knowingly be guilty of making a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited.
Any person who, for the purpose of obtaining a copyright, shall knowingly be guilty of making a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited.
TheChairman. For whom do you appear, Mr. Ogilvie?
Mr.Ogilvie. For myself as a publisher and for several other Chicago publishers, none of whom were represented at or invited to the conferences of which this hill is the result.
Mr.Chaney. Had you no notice that there was going to be a conference?
Mr.Ogilvie. The first information that I had that there was a conference was from a gentleman representing Lyon & Healy, of Chicago, in the Manhattan Hotel in New York, last November. That was the first intimation I had that there had been a conference. I knew that there were likely to be some, but I had no notice of their dates.
Mr.Chaney. We wanted you as well as everybody else.
Mr.Ogilvie. I knew nothing about it. I may say, also, that the first draft of this bill that I have seen was received in my office in Chicago Saturday morning last.
Again, on page 18 of the bill, section 25:
That any person who willfully and for profit shall infringe any copyright secured by this act, or who shall knowingly or willfully aid or abet such infringement or in any wise knowingly and willfully take part in any such infringement shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine, etc.
That any person who willfully and for profit shall infringe any copyright secured by this act, or who shall knowingly or willfully aid or abet such infringement or in any wise knowingly and willfully take part in any such infringement shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine, etc.
It seems to me a little out of order for the gentlemen who are sponsors for this bill to make it possible for them to get a copyright on a book, and if they are not caught in making a false affidavit in securing it, that a man shall go to the penitentiary for a year for pirating that particular book. It will be rather difficult for one to prove, after a number of years, that a publisher who has made an affidavit to secure a copyright to which he really was not entitled had committed perjury in connection with the securing of that copyright; but the question as to one's piracy of the book is open and "he that runs may read." It seems to me that there is a punishment there that they have applied to the wrong crime. If the man who makes a false affidavit were to go to the penitentiary for the year, I think it would protect the interests that desire protection in this country, in the form of labor, in the matter of setting up and manufacturing books wholly within the limits of the United States.
TheChairman. Do I understand you to contend that the Librarian should be charged with any special duty in that regard, for the registry of the copyright?
Mr.Ogilvie. No, sir; the Librarian can not determine whether a man is making a false or correct affidavit, but if one makes a false affidavit he is the man who should go to the penitentiary and not the individual who pirates his book.
Mr.Bonynge. Does not section 13 provide that the man who makes the affidavit shall be guilty of a misdemeanor?
Mr.Ogilvie. Yes; and the penalty therein provided is, "he shall be fined not exceeding one thousand dollars." That is all.
Mr.Currier. What is your suggestion?
Mr.Ogilvie. That you change the punishment.
Mr.Currier. And make it a penitentiary offense?
Mr.Ogilvie. Let them both go to the penitentiary, if either one goes.
Mr.Currier. In both cases?
Mr.Ogilvie. In both cases, if necessary. Do not eliminate the publisher. I am a publisher, but if I have made a false affidavit, there is no reason why the man who pirates my book should go to the penitentiary and I should only have to pay a fine, if I am caught. I see no reason why a man should go to the penitentiary in either case, really. He may unwittingly infringe the copyright of a book.
Mr.Currier. This says "willfully."
Mr.Ogilvie. That is subject to the construction of the courts. We all know what that means.
Mr.Currier. No; it puts the burden of proof on the Government to show it beyond a reasonable doubt.
Mr.Ogilvie. The proof of the perjury should also be beyond a reasonable doubt and the one guilty of it should be equally punished.
Mr.Chaney. If he did it unwittingly it would not be willful, you know.
Mr.Ogilvie. It is impossible for a publisher to make an "unwitting" affidavit of that sort. The publisher knows where the article that he is publishing is manufactured. I have been a publisher for a great many years, and I know where the articles that I am turning out are manufactured. It is possible for him to make an affidavit that is literally and absolutely true in regard to the place of manufacture of every article that he produces.
SenatorMallory. Where he willfully makes a false affidavit it is equivalent to perjury, and the penalty for that is generally imprisonment in the penitentiary.
Mr.Ogilvie. Then why change the penalty in this law? It certainly limits his liability under this act.
Mr.Currier. There is not any liability at all. No affidavit is required. There is no penalty for a false statement at all under the law now.
Mr.Ogilvie. Not as it is at present, but as this new law proposes it there is a liability.
Mr.Currier. This was a bill that passed the House last winter and was not reached in the Senate.
Mr.Ogilvie. Well, the facts are here.
TheChairman. It was reported favorably by the Senate committee.
Mr.Currier. Yes; and not reached.
Mr.Ogilvie. Section 19, the last portion of that section, reads:
And provided further, That should such subsisting copyright have been assigned, or a license granted therein for publication upon payment of royalty, the copyright shall be renewed and extended only in case the assignee or licensee shall join in the application for such renewal and extension.
And provided further, That should such subsisting copyright have been assigned, or a license granted therein for publication upon payment of royalty, the copyright shall be renewed and extended only in case the assignee or licensee shall join in the application for such renewal and extension.
Mr.Putnam. That provides for the extension of the existing copyright for an additional term.
Mr.Chaney. What is your suggestion on that?
Mr.Ogilvie. That the gentlemen who framed this bill, and who wished to let themselves out of the penitentiary for committing perjury, would be likely to make a very liberal arrangement with the author, or his widow or children, if it was within his power to refuse to consent to a renewal of a copyright. He may have been paying a royalty of 20 per cent, and when the time came for securing a renewal of the copyright he would be likely to say, "I will give you 1 per cent, and if you do not agree to that I will not join the request for an extension of the copyright." I think that is wholly beyond the province of this act.
Mr.Chaney. Whose consent should be required?
Mr.Ogilvie. Eliminate the publisher. He has no concern with it. The Constitution does not grant him any rights under the copyright law. He is not the "inventor" or the "author." Eliminate the publisher wholly, unless you desire, in case there may be an investment there that the publisher desires to protect, to let the author take care of that by contract, so that at the expiration of the copyright the publisher may have the right to continue the publication on the payment of the same royalty.
Mr.Currier. Can you suggest an amendment to carry out your idea in the matter?
Mr.Ogilvie. Yes, sir.
Unless the publisher shall agree to pay at least the same royalty for an extension of the copyright as has been paid during the previous years, the author shall have the sole right to apply for and secure an extension of copyright.
Unless the publisher shall agree to pay at least the same royalty for an extension of the copyright as has been paid during the previous years, the author shall have the sole right to apply for and secure an extension of copyright.
Mr.Chaney. You are really talking against your own interests as a publisher just now?
Mr.Ogilvie. I am, absolutely, talking against my interests as a publisher.
Mr.Sulzer. Do you contend that this provision would apply where the publisher had no interest in the publication beyond the ordinary time of copyright?
Mr.Ogilvie. That is all; it shall apply only to that case.
Mr.Sulzer. I construe this provision in here to be just what you say.
Mr.Ogilvie. No; I read it differently from the way you do, and place a different construction upon it. We will again refer to it and see if I am wrong. If I am wrong, I shall be glad to be put right, and if you are wrong, I know that you will be glad to be put right.
Mr.Sulzer. It says here unless the assignee or licensee shall join in the application. If a man is an assignee or licensee he has an interest in the copyright.
Mr.Ogilvie. He takes it for the time limit only.
Mr.Sulzer. If he is not he has no interest, and would not have to join with the widow or children in this application for an extension of the copyright.
Mr.Ogilvie. But if he is the assignee or licensee then he is interested in it only during the life of the copyright.
Mr.Sulzer. I do not understand it that way.
Mr.Hinshaw. How could the licensee have any interest in the copyright beyond the life of it?
Mr.Sulzer. He would have an interest in it so far as it could be extended.
Mr.Ogilvie. Why should he?
Mr.Bonynge. He has not. There is no provision now for the extension, and he would not have, except as he might get it under this bill.
Mr.Campbell. He would provide for that in his contract.
Mr.Ogilvie. Yes. Leave it out of the law.
Mr.Campbell. When the assignment was made, he would provide for all extensions.
Mr.Ogilvie. That is right.
Mr.Hinshaw. Are these contracts for royalty made to include a possible extension of the copyright?
Mr.Ogilvie. Not generally; because the author may be dead when the time for the renewal comes.
Mr.Currier. But it can be renewed then by his widow.
Mr.Ogilvie. But they do not do it generally.
Mr.Currier. I should suppose that in almost all cases under the existing law they would get a renewal.
Mr.Ogilvie. They do at times, but not often.
Mr.Sulzer. I think I understand what you mean, and that is this: That where there is no subsisting contract, then that the publisher shall not join——
Mr.Ogilvie. The publishers shall not be required to join.
Mr.Sulzer(continuing). In the application for the renewal of the copyright?
Mr.Ogilvie. Yes. As this is, it makes it impossible for the author or his widow or children to secure the extension of the copyright without the licensee joining. Then he has it in his power to diminish the royalty paid to suit his own purpose.
Mr.Campbell. If the contract for the copyright does not provide as between the author and the publisher for any renewal, what position would you be in then?
Mr.Ogilvie. According to this law it is impossible to get a renewal unless the licensee joins in the request.
Mr.Campbell. The license expires——
Mr.Ogilvie. But the license does not expire until after the copyright expires.
Mr.Campbell. What is the length of your contract that you usually make?
Mr.Ogilvie. This is a new provision entirely.
Mr.Campbell. Under the old law, I mean?
Mr.Ogilvie. Under the old law it usually lasts as long as the copyright lasts.
Mr.Chaney. You suggest that we leave out this last proviso absolutely?
Mr.Ogilvie. Yes, sir.
Mr.Bonynge. Not to leave it out absolutely——
Mr.Ogilvie. I think it should be left out altogether. It is wholly unfair to an author. I can see no reason why the publisher should have any right of that kind. The Constitution grants the right to an author, and if the publisher desires to secure those rights that is a matter of contract. Let him make a contract covering that point.
Mr.Hinshaw. If the copyright had been assigned, the original proprietor would have lost all interest in the copyright; would he not?
Mr.Ogilvie. The party who now takes a copyright takes it with the understanding that it shall expire at a certain time; and then he is in no better position and no worse than any other publisher who has not had a contract with the author.
Mr.Chaney. Suppose your contracts under this bill, should it become a law, should provide for the life of the copyright, together with any extensions thereof—then what would you say as to the proviso?
Mr.Ogilvie. Suppose the bill should provide for the life of the contract, together with any extension thereof?
Mr.Chaney. Suppose under this bill, should it become a law, your contracts with the author should provide for the license and assignment to extend the copyright during its life and all extensions thereof?
Mr.Ogilvie. If the author wishes to make a contract of that sort, that is the author's business; but let the author thoroughly understand what he is doing. As it is here, the author may think he is entitled to the license for a renewal term, whereas he finds the publisher has it wholly within his hands. The publisher is not entitled to it; it is not his.
Mr.Sulzer. After all, it resolves itself down to a mere question of contract?
Mr.Ogilvie. Yes; but this eliminates the necessity for making a contract, because this gives certain people rights.
Mr.Sulzer. Only where there is a subsisting contract, however.
Mr.Ogilvie. But the contract as at present expressed is for the life of that copyright.
Mr.McGavin. The life is fourteen years?
Mr.Ogilvie. Twenty-eight and fourteen. Now, then, let us assume, under this section, that a copyright expires next year. Let us assume that this bill passes, that a copyright expires next year, and that I am the author of a certain book. I go to my publisher and say: "Here under the law I am entitled to a renewal of the copyright for my book for a term of fifty years in all, or during my life, or whatever the term may be." The publisher replies: "Very well; you want me to join in the securing of that extension, do you?" "Yes." "Well, I have been paying you 20 per cent royalty; I will pay you 2 per cent hereafter, and if you do not take that I will pay you nothing." Is it impossible to suppose that some publishers would do that when they carefully provide against going to the penitentiary for committing perjury? I think not.
Another point: in section 15, in the last paragraph, this language appears: