Where the copyright proprietor has sought to comply with the requirements of this act as to notice, and the notice has been duly affixed to the bulk of the edition published, its omission by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice, shall not invalidate the copyright.
Where the copyright proprietor has sought to comply with the requirements of this act as to notice, and the notice has been duly affixed to the bulk of the edition published, its omission by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice, shall not invalidate the copyright.
Now, let us see where that lands us. How have the public any means of determining whether "the bulk" of the books has contained a notice of copyright? Assume that I get hold of a book that contains no notice of copyright, and as a publisher I reprint it. It may have been an expensive book to reprint. It may have cost me several thousand dollars. What provision is there in this law to reimburse me for having innocently done that which, under the law, apparently I had a perfect right to do? Not any. I think there should be some provision to reimburse a man who does a thing of that kind under an apparent right.
Mr.Chaney. This is not a case of ignorance of the law; you think it is a case of ignorance of fact?
Mr.Ogilvie. Ignorance of fact. You are not obligated at present to go to the Copyright Office to ask any questions. The book itself is supposed to present all evidence of existing copyright.
Mr.Chaney. Could you not obtain that information at the office of the Librarian?
Mr.Ogilvie. In regard to that as arranged at present, just to illustrate the point, I will state that I printed a book in Chicago, an English book, apparently published in England, containing no notice of American copyright. I spent several thousand dollars in getting the book out, and have spent several thousand dollars since then in lawyers' fees. The point was this: The book was published under one title in the United States and under another title in Great Britain. It contained no notice of American copyright.
In an excess of caution I communicated with the Librarian of Congress asking whether a copyright existed on that particular book, by title, in either the name of the English publisher or the name of an American publisher, whose name also happened to be on the title-page of the book; and I was informed that no copyright existed. I reproduced the book. Judge Kohlsaat, in the Federal circuit court of Chicago, decided that I was strictly within my rights. The circuit court of appeals reversed his decision and has refused a rehearing, and we must, consequently, take the matter to the Supreme Court. Now, I claim that under the law a man who does that is entitled to compensation.
Mr.Putnam. Excuse me just a minute, Mr. Ogilvie; will you permit, Mr. Chairman, the register to say a word?
TheChairman. Certainly.
Mr.Putnam. It is simply in answer to Mr. Ogilvie's intimation that he answered his inquiry, and that his inquiry was whether a copyright existed upon that book. What was the answer that he got from the office of copyright?
Mr.Solberg. The only purpose in making any remark on that point is that there shall not be a misunderstanding as to the nature of the replies to such inquiries. Any matter of fact on record in the copyright office is always at the disposal of any inquirer, but the copyright office is very careful not to undertake to state the termination of any copyright. It simply gives facts as to the registration of title or whether it has discovered any. In fact, it is very careful not to say even that there is no registration, but that the indices of the office and the records of the office after careful search do not disclose any.
Mr.Chaney. Mr. Ogilvie is substantially right in his statement, then.
Mr.Ogilvie. And at this time I wish to publicly thank Mr. Solberg and Mr. Putnam for the uniform courtesy with which they reply to all inquiries that are addressed to their office. The gentleman is quite right. That was exactly the phraseology used in his reply. But that, I beg to submit, is the only source of information that publishers have; and when they get that sort of information they are justified in proceeding along lines indicated thereby.
I say that every edition of a book that is copyrighted under the United States law should contain notice of copyright, irrespective of where it may be printed, and thus give the public due notice.
SenatorMallory. Let me ask you in regard to that instance that you speak of in your experience. That book had two different titles, you say?
Mr.Ogilvie. Yes, sir.
SenatorMallory. That is, there was an English publication under one title and an American publication under a different title?
Mr.Ogilvie. Yes.
SenatorMallory. Were they identically the same book?
Mr.Ogilvie. No; not identically the same book, even.
SenatorMallory. Which title did you publish under?
Mr.Ogilvie. Under the English title.
Mr.Sulzer. Was the subject-matter different?
Mr.Ogilvie. The subject-matter was different. A portion of it, consisting of some 500 pages, was alike, but a considerable portion of it was different.
Mr.Hinshaw. The English book was copyrighted in the United States?
Mr.Ogilvie. The American book was copyrighted in the United States. The English book contained no notice of copyright, and I may go further and say——
Mr.Sulzer. Did you publish the English book?
Mr.Ogilvie. We published the English book. I may go further and say that the American publisher, by contract, agreed to the elimination of the American copyright mark; and he did that for this reason: The people who live in Great Britain refuse to buy, if they can avoid it, American books. I have had opportunities to sell several thousand copies of my copyright books, provided I would leave out of them the American copyright notice. I have in my office in Chicago at the present time a great number of American copyright books that have been printed in the United States and sold to publishers in Great Britain, who required the elimination of the American copyright notice; and the American publishers were foolish enough to comply with that request, thereby, in my humble judgment, vitiating their copyright. I say that in the case of an American copyright book the public are entitled to be informed, not merely by the insertion of the word "copyright," but by the insertion of the word "copyright," together with the date on which the copyright was taken out and the name of the person who took it out, exactly as the law is at present. It is not enough to simply substitute the word "copyright;" it means nothing.
Mr.Currier. Suppose in the case you have referred to you began to publish this book without any knowledge that it was protected by copyright? Could you not go right on and publish and sell that book?
Mr.Ogilvie. The courts have enjoined me.
Mr.Currier. If this law is passed, could you not do that? Let me read it. (Reading:)
"It's omission"—that is, notice of copyright—"by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice."
You are an innocent infringer; you can go right along and dispose of the books. That is your case; that is your defense in any proceeding against you for selling these books.
Mr.Ogilvie. Yes.
Mr.Currier. But it does not invalidate the copyright as against all others, nor prevent recovery for an infringement against any person who, after actual notification of the copyright, begins an undertaking to infringe it.
Mr.Ogilvie. Well, will you tell me what this means—"shall not invalidate the copyright?"
Mr.Currier. Why, the copyright exists as against everybody but you in that edition of the book.
Mr.Ogilvie. Very well, if that is the case.
Mr.Currier. But if this bill passes, you would have a right to go on and complete the edition of the book and sell it.
Mr.Ogilvie. If that is the construction that the courts give it, very well.
Mr.Currier. There can not be any doubt about the construction. It is only the man who, after actual notice that the copyright exists, begins an undertaking to infringe it who is affected.
Mr.Ogilvie. I read that section very carefully, and I see the point that you raise; but I could not——
Mr.Currier. I think this gives you full protection.
Mr.Ogilvie. I could not get over the statement, however, that it did not invalidate the copyright.
Mr.Currier. But it does not invalidate the copyright.
Mr.Ogilvie. As applied to everybody else?
Mr.Currier. To anybody who has notice before he begins.
Mr.Ogilvie. Very well. Now, then, with regard to the insertion of notice, to get back to the subject, I consider that the insertion of the notice is essential. If we are ashamed of the United States, if we must cater to England, and France, and Germany, and other nations by the elimination of a notice that indicates the origin of our books, why do we desire to protect their authors?
Mr.Currier. Oh, this omission that is referred to is a mere inadvertence in a particular copy.
Mr.Putnam. I understand now, Mr. Chairman, if you will permit me, Mr. Ogilvie, it is in aid of your statement——
Mr.Ogilvie. Yes.
Mr.Putnam. I understand now that Mr. Ogilvie is referring to the requirement as to the notice being in terms limited to the edition sold in the United States.
Mr.Ogilvie. Yes.
Mr.Putnam. And it does not extend to any edition that may be produced and sold abroad?
Mr.Ogilvie. Yes.
Mr.Putnam. I understand that you think that it ought to be on all authorized editions of books?
Mr.Ogilvie. All authorized editions. The copyright law says that the notice shall go on the title-page or the page immediately following. You turn to any book, and what do you find on the page immediately following? Practically nothing, unless the copyright notice is there. There is plenty of room for it. If they can engrave the Lord's prayer on a three-cent silver piece, there is certainly room enough to put those half dozen words on the back of their title-page.
In regard to the publication of books under two titles, it seems to me that some provision should be made in the law to protect a man who publishes a book that is printed abroad under one title and is printed in this country under another, provided the foreign edition does not contain notice of copyright. As it is to-day, and as it will be under this law, one can import a book printed in England; it may have been written on the same subject as that which you intended to produce a book on; you have carefully warned your editors to abstain from making extracts from a book that is printed in this country or that contains a notice of copyright. You proceed. Your editor finds a book in a library that does not contain notice of United States copyright. It is published abroad by a publisher different from the one who issues it here. There is nothing to warn him. He makes copious extracts, and the owner of the copyright may be perfectly well aware of the fact that he has made those extracts. Under this law as it is proposed, he may permit that infringement to continue for three years and then claim damages, not less than one dollar a copy, although the book may have been sold for 10 cents per copy, and practically put the apparently infringing publisher, who acted in perfect good faith, out of business. It is unjust; and I submit, gentlemen, that those matters are proper subjects for consideration, and that they should not be enacted into a law in their present form.
Now, to refer to some of the remarks made by my predecessor, Mr. Olin. He said that the American Publishers' Copyright League and the American Publishers' Association represented practically all of the publishers of the United States. I differ distinctly and materially with him. They do not. They represent a few and only a few of the publishers of the United States. I doubt very much if a single publisher west of the Alleghenies (with very few exceptions) is a member of either of those associations. There may be a few exceptions—I know now that there are—but very few, and he is not qualified to speak for the others who are not members of those associations, and they do not represent a majority.
In regard to importation, he said that Scribner would be very glad to import a book if he were requested to do so. Now, I am a publisher, and if it were my book I do not think I should be very glad. I think I should tell the intending purchaser that I had a copy of the book that was at his disposal for the fixed price that I had placed upon it, and I think Scribner would do likewise.
In regard to cheap editions, which he spoke of and said that at the end of the copyright a publisher was desirous of securing as large a circulation as possible for his books—that is true within a year or two of the end of the term of copyright. But I can not recall at this moment a single book the price of which has been reduced materially until so close to the end of the term of copyright as to make it practically valueless to the original publisher unless he did reduce the price; and he does it, not for love of the public, not because he is considering the public, but simply to get ahead of his fellow-publisher. He is the man who then has a couple of years in which to exploit a cheap edition; and it seems to me that under the law as it is suggested, a term of fifty years from the date of the death of the youngest of the authors is going beyond what the framers of the Constitution decided was a limited time. Let us assume that Mark Twain, if he were 80 years of age, were to write a book. He has his daughter, who may be 20, write a few lines in that same book. Mark Twain dies in a few years; she lives to be 90. There is seventy years of copyright, and fifty years after her death, making one hundred and twenty years. I do not believe that that is a "limited time" within the meaning of the phraseology of the Constitution. [Laughter.]
Mr.Chaney. That is the joint-author clause.
Mr.Ogilvie. There is just one point that I had overlooked. I was not at any of the conferences, but I have been informed that an attorney representing certain of the special interests at those conferences suggested that the public should be considered; and to quote literally what I was told as to what happened, "he was hooted at and laughed down." And I think that very fully expresses the sentiment contained in this proposed copyright act, so far as the public are concerned.
I thank you, gentlemen.
STATEMENT OF FRANK H. SCOTT, ESQ., PRESIDENT OF THE CENTURY COMPANY, NEW YORK, AND PRESIDENT OF THE AMERICAN PUBLISHERS' ASSOCIATION.
Mr.Scott. Mr. Chairman, I only wish to clear up two points that have been raised by my predecessor. I am not responsible for the exact wording of the clauses covering these two points, but I do wish to emphasize their importance.
The first is as to the question of the original publisher's rights at the termination of the present contract or the present copyright. Under the law as it now stands, at the termination of the copyright the publisher would have a set of plates and possibly a large number of books on hand. He can enter the market, no matter who comes into the field, and compete on at least equal conditions.
Under the bill as it is proposed now, if the author secures a continuation or a renewal of his copyright, and the publisher is not consulted the publisher would be left with his set of plates and his investment in the sheets and stock; and it would be absolutely impossible for him to sell them to anybody, because his contract having expired, and the author may have gone and made a new contract with a new publisher, leaving him entirely out of it. If there is no copyright whatever he can compete on equal terms.
I am only explaining why I think the publisher ought to have some consideration under those circumstances.
Mr.Currier. What do you say to the amendment suggested by the gentleman who last spoke?
Mr.Scott. Just what was that amendment?
Mr.Currier. That the publisher might have the right to control the extended term, provided he would pay the same royalty that he had paid.
Mr.Scott. I think the publisher ought to be obliged to pay the same royalty that anyone else should pay at that time. It might be a very old work. It might be that the time during which he could continue to pay that royalty had expired.
Mr.Currier. You could hardly set the right up at auction, could you?
Mr.Scott. I am sorry to say it is very often done.
Mr.Chaney. Would you not think that would give the publisher an undue advantage over the author?
Mr.Scott. I think the law as it is at present framed is very broad. I only wish to say now that I think the publisher ought to be consulted. I suppose this will come up later, and I have not prepared any argument on the subject. I am only pleading that the publisher ought to have some consideration under those circumstances.
Mr.Chaney. Can not the publisher provide against all that by the contract he makes?
Mr.Scott. There will be no trouble about the copyrights taken out after the passage of this bill. It is only with reference to copyrights that are now in existence.
Mr.Chaney. Yes.
Mr.Bonynge. You think the language of the bill as it is is too broad?
Mr.Scott. I think so. I think I should not have made it, myself, quite so broad.
The other point I wish to make is with reference to the publication of the American copyright notice in editions of an American copyright work which are published abroad. What the gentleman has said might be very true if the matter were always within the control of the publisher of the American edition, but, as you will readily see, it is not always within his control. These books are very often written by a foreign author. The contracts of the foreign author, for instance, in the case of English novels, are made with his own publisher in London. They have their own arrangement between themselves as to what notice shall be put in the book. The American publisher is forced to place in his own books published in this country the American copyright notice, but he has no control as to what notice shall be placed upon books published in Germany, or in France, or in Spain, or in Russia, or in England. It is entirely beyond his control.
Mr.Chaney. Would you think the terms of this bill, then, are right?
Mr.Scott. I should say the terms of this bill are right. It seems to me it is perfectly possible for anyone desiring to reprint a book in the United States to ascertain whether or not it is copyrighted. Indeed, the general facts about any book which is so important that anyone wishes to reprint it are notorious. It is known or it can be easily ascertained whether the book is published in the United States and whether it is copyrighted in the United States or not. And I do not think that anyone should be able to get hold of a single copy, whether printed abroad or printed in the United States, that does not happen to have the copyright notice, and be permitted to go ahead and reprint the bookad libitum. I think the rights of the owner would not be sufficiently protected if that were permitted.
Mr.McGavin. What do you say about the case of the gentleman who just preceded you—the lawsuit into which he got himself?
Mr.Scott. That has been determined in the courts; it is not for me to say. One judge decided that he was right, and the judge to whom the case was appealed decided that he was wrong.
Mr.McGavin. He seems to have made all the necessary effort to find out whether there was a copyright or not.
Mr.Scott. That book, as I happen to know, was an edition of one of the dictionaries, otherwise known as Webster's Dictionary. I think it was perfectly easy for him to find out whether that book was copyrighted in the United States or not. It is not for me to say whether there was any technical omission which endangered the copyright under the language of the present statute; but it does seem to me that in books generally published outside of the realm of the United States, and beyond the jurisdiction of the United States, it should not be necessary for the American publisher, who owns the copyright or who represents the owner of the copyright, to go abroad and undertake to make arrangements of this kind. It might be very difficult for him to make arrangements for the publication of the American copyright notice on foreign editions which he does not print himself and which he does not arrange to control.
Mr.Chaney. Mr. Chairman, I want to make a suggestion about the form of expression of that clause on page 12. You will notice that in the last line of that second paragraph of section 15 the word "undertaking" is used. I do not know whether people generally understand the use of that word "undertaking" as lawyers in my part of the country do, but I would prefer the word "action" rather than "undertaking," because "undertaking" usually refers to a bond of some kind. "Action," it seems to me, is the proper word.
Mr.Putnam. That is page 12, line 18, is it not, Mr. Chaney?
Mr.Chaney. Yes. The word "undertaking," you know, is used by lawyers generally in the sense of a bond or some agreement to stand good for the default of another, whereas "action" is the name of the suit.
Mr.Putnam. This was not intended to apply to a legal action.
Mr.Chaney. But is it not in the same nature?
Mr.Putnam. No; it was simply meant to apply to the beginning of some enterprise, the beginning to prepare to manufacture. It is a business undertaking, not a legal one.
Mr.Chaney. I misunderstood it, then.
Mr.Bonynge. That is what I understood it to be—an enterprise.
Mr.Currier. You might let the two words go out, so it would read, "who, after notification of the copyright, begins to infringe it." Then it would be a question of fact.
Mr.Putnam. Mr. Chairman, you have asked me to announce that it will be the desire of the committee to have the names and addresses of all those present at these hearings, and the relations in which, if they desire to express it, they are here, whether in favor of or in opposition to the bill. We have provided a register at the door in which those names can be noted. I understand that it is desired that that shall extend to all those present.
TheChairman. All present, and in such form that it may be placed in the record that we are making.
Mr.Chaney. You mean also to include, I suppose, a brief expression from these people as to their objections, and to what their objections related?
Mr.Putnam. Yes. The register will be supplemented by their communications, I suppose—the register itself, including their names.
Mr. Horace Pettit, Mr. Chairman, who spoke yesterday, desires to supplement his remarks with an additional suggestion or two, which he has put in writing, and asks simply to have entered in the record, with your permission.
Doctor Lewandowski, present here, asks me to submit a request in writing from a firm of music publishers in New York, that he submit to you a communication in aid of the provisions for the protection of music publishers against reproduction by mechanical devices. He submits that in writing, with the request that it may be entered on the record.
(The various papers above mentioned will be found at the end of this statement of Mr. Putnam.)
Mr.Putnam. The copyright office, Mr. Chairman, is now in receipt, naturally, since the bill has been introduced, of some suggestions from those who have participated in the conferences, and since the bill has been introduced and is in the custody of your committee it would seem that those belong to the files of your committee. If you will permit me, I will submit these, without reading them, to be entered in the record.
TheChairman. Do you think they ought to be printed in the record of the meeting?
Mr.Putnam. I do, Mr. Chairman. I do not refer to mere formal communications, or those that may be disposed of absolutely by the copyright office. I do not mean all communications that come to us with reference to the bill. These are simply four communications, from four participants in the conference. One of them, Mr. A. W. Elson, makes certain definite proposals for amendments, including one to section 13 which would extend the manufacturing clause. He has sent a copy of this to you, Mr. Chairman, and I assume that it will go in the record, with the request for a hearing.
The second is from Mr. Edmund C. Stedman, who was a participant, but is in ill-health, and can not be here; but it contains an expression upon the bill that I think should go in the record.
Another is from Mr. Leo Feist, also a participant, and contains an expression about the bill that he would have made here orally if present. I think that should go in.
Another is from Mr. Ansley Wilcox, who represented certain lithographic interests very much concerned with the protection of such prints as posters, and very much concerned, therefore, in the specifications of subject-matter. He writes a communication which I think should go into the record, expressing his content with the specifications of sections 4 and 5.
TheChairman. Those will be printed in the record.
(The above-mentioned papers will also be found at the end of this statement of Mr. Putnam.)
Mr.Putnam. I have information, Mr. Chairman, that when the matter of the reproduction of music by mechanical devices comes up for discussion, Mr. John J. O'Connell, an attorney of New York, would like to be heard, representing ten manufacturers of automatic piano players in New York City, and desiring to be heard only in opposition to those portions of the bill respecting musical copyrights, and that in connection with the same general subject-matter Mr. Howlett Davis, an inventor of material that enters into these devices, desires an opportunity to make some opening remarks, pointing out how the proposed bill will, if enacted, act in restraint of invention, and show how it encroaches upon the existing patent laws.
If it is your pleasure, now, Mr. Chairman, I would suggest that it would be helpful to have an expression from the librarians dissenting from the assent of the American Library Association with regard to the importation clause, while Colonel Olin's remarks are fresh in mind, and if that is your pleasure, I think it is only fair that I should make clear the status of that provision.
The list of participants in the conference included two associations that might be interested or were certain to be interested in these importation provisions. One was the National Educational Association and the other the American Library Association. These importation clauses concededly contain a restriction, a limitation, a diminution of existing privileges of importations enjoyed by individuals and enjoyed by certain institutions.
The National Educational Association might well have spoken for both individuals and institutions and generally. As a matter of fact, it should be clear that the participation of the National Educational Association in the conferences was of the slightest. They were invited, we urged them to be represented, and they were present by delegate at the first and the second conferences; but their participation was of the slightest. There was no expression from them upon the diminution in the case of individuals, and they contented themselves at the outset with an expression of dissent from any provisions which tended to diminish in any way the present privileges of libraries.
The American Library Association was present by two accredited delegates, who considered, by later action of the representative board of the association, that they had authority to represent the association in assenting to final provisions. Those two delegates were the present president of the American Library Association, Mr. Frank P. Hill, of the Brooklyn Public Library, and Mr. Frank C. Bostwick, of the New York Public Library. Mr. Bostwick was here yesterday, but has had to leave to-day. Colonel Olin's remarks included the American Library Association as one of those associations for whom he could give a general assent to the bill substantially as it stood. Coupled with that, however, should, I think, be before you this entry in the record of our conference in March last. At that conference these provisions were, I believe, substantially (as far as they regarded libraries) as they stand in the bill, except that one proviso has been added, which is rather in favor of libraries, as we understand it, than otherwise. They expressed themselves then thus:
Mr.Hill. There is very little that I need to say. The paragraph relating to the copyright respecting the libraries has been taken up very carefully by the executive board and the council and by the delegates, and we are satisfied as an association with the draft as submitted, and, personally, I approve of the change which has been agreed to this morning between the publishers and the delegates. That related to the additional proviso that they should not be prohibited from importing foreign editions in these exceptional cases, where they could not get the American edition.I think it is only fair to state, Mr. Librarian, that while the executive board and the council of the American Library Association have both voted for the adoption of this draft there will be individual opposition. There are some librarians and some libraries that are opposed to any change in any part of the law which affects importation, and so have reserved the right to oppose that part of the bill. I think it is due to you that such statement may be made, so that you may know the individual opinion as well as the general one.
Mr.Hill. There is very little that I need to say. The paragraph relating to the copyright respecting the libraries has been taken up very carefully by the executive board and the council and by the delegates, and we are satisfied as an association with the draft as submitted, and, personally, I approve of the change which has been agreed to this morning between the publishers and the delegates. That related to the additional proviso that they should not be prohibited from importing foreign editions in these exceptional cases, where they could not get the American edition.
I think it is only fair to state, Mr. Librarian, that while the executive board and the council of the American Library Association have both voted for the adoption of this draft there will be individual opposition. There are some librarians and some libraries that are opposed to any change in any part of the law which affects importation, and so have reserved the right to oppose that part of the bill. I think it is due to you that such statement may be made, so that you may know the individual opinion as well as the general one.
If Mr. Bostwick had been here, he would to-day have called attention to that. I do it simply because those delegates are not here to say that; and I do it in order to give Mr. Cutter's remarks a proper standing before you. Mr. Cutter, as I understand it, represents librarians and libraries who object to any diminution of the present privileges.
(The papers referred to during the foregoing statement by Mr. Putnam are as follows:)
The New Willard,Washington, D.C., June 7, 1906.To the honorable Joint Committee of the Senate and House of Representatives.Gentlemen: Referring to the proposed bill to amend and consolidate the acts respecting copyright, now before the committee, I would propose the following amendments:Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following:"And provided, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (g), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright."Amend section 5 (p. 4, lines 2 to 3) by adding, between lines 2 and 3, before the word "photographs," the following: "(j) talking-machine records."Amend section 18, clause (b) (p. 14, line 14), by adding, between the word "composition" and the word "any," the words "any talking-machine record;"Amend section 23 by striking out from the clause marked "First" (p. 17, lines 18 to 20) the following: "or any device especially adapted to reproduce to the ear any copyrighted work."Amend section 23 by inserting in the clause marked "Fourth" (p. 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (g) and".Hoping that these proposed amendments will meet with the approval of the committee, I remain,Yours, very respectfully,Horace Pettit,For Victor Talking Machine Company.Jos. W. Stern & Co., Music Publishers,New York, June 5, 1906.Dr. D. P.Lewandowski,Care of Raleigh Hotel, Washington, D.C.My Dear Doctor: We herewith authorize you to represent us and speak in favor of the copyright bill at the meeting of the committee. Honorable Senator Kittredge, or any other honorable gentleman who will do anything to further the passage of this bill, will earn our everlasting gratitude and will be working for the advancement of an industry which has been sorely oppressed by piracy and injustice.There is an excellent opportunity now to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government.With best wishes, we remain,Yours, very sincerely,Jos. W. Stern & Co.To the Committee of the Senate on Patents, Senator Alfred B. Kittredge, of South Dakota, Chairman.Gentlemen: I appear before you this morning in the name and as the representative of the firm of Jos. W. Stern & Co., music publishers, of New York, and in their behalf I wish to state that the bill on copyrights S. 6330, to amend and consolidate the acts representing copyrights, which is before you this morning, is of the highest importance, for the protection of the authors and composers and music publishers, to protect their copyrights.The old law is very vague and unsatisfactory. The proposed new law would help music publishers and composers very much.There has been a great deal of piracy going on and their best "hits" have been copied and pirated.The new law makes such piracy a criminal offense, punishable by fine or a year imprisonment. If passed, as we hereby most humbly pray that it should be so, it will punish the pirates, because the fine alone can not stop their unjust deeds, and they laugh and pay their fine, but a year of imprisonment will certainly change all for the best. The said pirate would not risk a year of prison at all times.Then again, the new law provides that no phonograph company or any makers of musical instruments, as well as makers of self-playing pianos, can deliberately use the work of the brain of the composer as well as the property of the publisher without permission to do so or paying some remuneration for the same.Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it.Along comes the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for the said publisher's or composer's rights.They sell thousands and thousands of the "hits" of the publisher, which he has worked hard to make, without paying, as stated before, a cent of royalty for them.The new law proposed remedies this, but of course the phonographic companies are fighting the new bill tooth and nail.In this brief outline I shall include another important statement to show how much work, and anxiety of the brain a composer must use to write something in poetry or music, and what anxiety and worry he endures until the said "hit" is an accomplished fact. Sometimes his entire family depends upon the publishing of this brain work, and when it is accepted and the publisher issues the same for the public's appreciation, behold, in the next few days every sort of instrument is playing this man's composition.I for one have suffered this injustice and piracy. Therefore I feel how dreadful it is in general to suffer and to be deprived of remuneration for the just and intelligent inventive brain work which a man produces by his genius.This is, gentlemen, an excellent opportunity to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government. I conclude by appealing most earnestly and respectfully to the honorable gentlemen of the committee to do their utmost to forward the passage of this bill, and I am convinced that they will earn everlasting thanks and gratitude for creating a law which will earn for them recognition and will carry their name to history for having worked for the advancement of an industry which has been sorely oppressed by piracy and injustice.Believing that my most humble indorsement of this new law and the desire of the firm of Jos. W. Stern & Co., who have authorized me to address this body in their behalf, will soon be upon the statute books protecting copyright, I have the honor to remain,Very respectfully, yours,D. P. Lewandowski, M.D.34 East Twenty-first Street,New York City.A. W. Elson & Co., Educational Art Publishers,Boston, June 5, 1906.Herbert Putnam, Esq.,Librarian of Congress, Washington, D.C.Dear Sir: As I do not expect to be able to be present at the first hearing of the copyright bill which is now introduced in Congress, I write to ask whether the suggestions that are made on the accompanying sheet can be placed in the hands of the committee.I should like to appear in favor of these suggestions at any subsequent hearing that may be given by the committee on the bill.I have arranged the suggestions in the order of importance from my own particular standpoint.As this may reach you during or after the hearing before the joint committee of the Senate and the House, I have mailed a duplicate of this to the chairman of the committee.Very truly, yours,A. W. Elson.Suggestions of additions and amendments to the copyright bill introduced before Congress May 31, 1906, entitled "A bill to amend and consolidate the acts respecting copyright."Section 5 (subsection J).—That the words "and negatives" be added after the word "photographs," so that subsection J shall read: "Photographs and negatives."Negatives are made the subject of copyright under the present copyright law, and there seems to be no valid reason why they should be omitted in the new copyright statute. It would very much simplify the copyrighting of all photographic reproductions if negatives were made the subject of copyright, and for the purpose of registration two prints of the negative copyrighted should be filed in the copyright office. I would therefore suggest that the following words be added to section 11, seventh line, after the word "edition," "or if the work be a negative, two prints made directly from it."Section 13.—In this section typesetting and the lithographic process are singled out from all other processes connected with the manufacture of printed books, and given distinct protection from foreign competition over all other processes in making books that are copyrightable in the United States. Any such discrimination is unjust, and if this section is retained, the protection should be broadened to include any other processes besides lithography.I would therefore suggest that section 13 be amended as follows: After the words "lithographic process," in the seventh line, and after the same words on page 6, first line, nineteenth line, and thirtieth line, there be inserted the words "or any other process or method," and after the words "a process," in the same line, the words "or method."That the word "lithographs" in the second and third lines of the same page be erased, and the word "illustrations" be inserted in place of it; and on the same page, in the third line of that portion of section 13 on that page that the words "where" and "either" be erased. My preference would be to see the whole section dropped out, but failing in this no undue preference should be shown any one or two methods connected with the manufacture of books.Section 39.—In its present form could be made clearer if it is intended to secure to an author of an original work of the fine arts any copyright which he may have obtained under the statutes on his work. On the other hand, if the section is intended to secure to an author or artist any potential copyright in a work on which he had not duly secured statutory copyright, then such provision, it would seem, would be unreasonable and unjust to the purchaser of the work; and I would therefore suggest the following wording for this section: "The author of any original work of the fine arts being the owner of such a work and having copyrighted it according to the provisions of this act or any previous United States copyright act, and who has marked upon such original work such notice of copyright as may be required by the act under which the work was copyrighted, shall not be deemed to sell or transfer said copyright upon selling or transferring the original work of art unless an agreement in writing covering the transfer of said copyright be signed by the author."Section 37.—Is open to the same criticism as section 39. It might be corrected by the following changes, viz: That in the third and fourth lines the words "which is the subject of copyright" be struck out and the word "copyrighted" substituted for them.Section 8.—In providing the conditions under which a foreign author or proprietor of any work may obtain copyright on such work within the United States, section 8 grants certain privileges to a foreign proprietor which are not granted to an American proprietor of a foreign work; as, for example, an American proprietor of a foreign painting who desired to copy and publish it in this country.I would therefore suggest that section 8 after the words "provided, however" in the fifth line and through subsection (a) read as follows: "That copyright secured by this act shall extend to the work of an author who is a citizen or subject of a foreign state or nation only when such author or the proprietor of the work (a) shall be living within the United States at the time of the making and first publication of the work or shall contemporaneously with publication in some foreign country publish the work within the limits of the United States."A. W. Elson,146 Oliver street, Boston.New York,June 4, 1906.Herbert Putnam, Esq.,Librarian of Congress, Washington, D.C.Dear Mr. Putnam: I regret to find myself, after the strain of breaking up my home, totally unable to attend the meeting of the Senate and House committees on the 6th. In fact, it is out of my power to go to Washington this week for either the formal or the informal discussions.It seems to me that my time of active work, relative to copyright, is about ended; and possibly I ought to resign from the presidency of the American Copyright League. I am no longer the president of the National Institute of Arts and Letters, Professor Sloane having become my successor. I think the later draft of your bill is in excellent shape as a basis for consideration by the joint committee.Respectfully, yours,Edmund C. Stedman.Leo Feist, Music Publisher,New York, June 1, 1906.Hon.Herbert Putnam,Librarian of Congress, Washington, D.C.Dear Sir: Very many thanks for your courteous communication of the 29th instant, and I assure you that I appreciate the compliment paid in the sending thereof.If all is well, Mr. Witmark and myself will be at the conference.Earnestly hoping that the bill will be passed in its present perfect form, believe me,Very truly, yours,Leo Feist.Wilcox & Bull, Counselors at Law,Buffalo, N.Y., June 5, 1906.Hon.Herbert Putnam,Library of Congress, Washington, D.C.My Dear Mr. Putnam: I beg to acknowledge, with thanks, various circulars and documents relating to the new copyright bill, including the proof copy of the bill as printed May 19, and the printed copy of the bill as introduced May 31, with notices of the first hearing before the joint committees of the Senate and House, on Wednesday, June 6, at the Library building, and of the preliminary conference to be held to-day, all of which have had my careful attention.I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it, and particularly of yourself and Mr. Solberg. I am proud to have had any share, however slight, in outlining it, and shall be glad to take part as actively as possible in urging it upon Congress and commending it to the people at large.As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.The Consolidated Lithograph Company has suggested that I attend the hearing in Washington to-morrow. I should like to do this, at least for the purpose of showing the interest which we feel in the measure and to assist in impressing the committees of Congress with its importance, though I know that after this hearing the bill will simply lie over for further consideration and for action at the next session. But it seems impracticable for me to be in Washington to-morrow, and I think that I can be of more service at a later time, when I hope that the company will still be disposed to send me there.Very truly, yours,Ansley Wilcox.P.S.—Will you please send me an extra copy of the bill, or two if you have them to spare?
The New Willard,Washington, D.C., June 7, 1906.
To the honorable Joint Committee of the Senate and House of Representatives.
Gentlemen: Referring to the proposed bill to amend and consolidate the acts respecting copyright, now before the committee, I would propose the following amendments:
Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following:
"And provided, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (g), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright."
Amend section 5 (p. 4, lines 2 to 3) by adding, between lines 2 and 3, before the word "photographs," the following: "(j) talking-machine records."
Amend section 18, clause (b) (p. 14, line 14), by adding, between the word "composition" and the word "any," the words "any talking-machine record;"
Amend section 23 by striking out from the clause marked "First" (p. 17, lines 18 to 20) the following: "or any device especially adapted to reproduce to the ear any copyrighted work."
Amend section 23 by inserting in the clause marked "Fourth" (p. 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (g) and".
Hoping that these proposed amendments will meet with the approval of the committee, I remain,
Yours, very respectfully,
Horace Pettit,For Victor Talking Machine Company.
Jos. W. Stern & Co., Music Publishers,New York, June 5, 1906.
Dr. D. P.Lewandowski,Care of Raleigh Hotel, Washington, D.C.
My Dear Doctor: We herewith authorize you to represent us and speak in favor of the copyright bill at the meeting of the committee. Honorable Senator Kittredge, or any other honorable gentleman who will do anything to further the passage of this bill, will earn our everlasting gratitude and will be working for the advancement of an industry which has been sorely oppressed by piracy and injustice.
There is an excellent opportunity now to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government.
With best wishes, we remain,
Yours, very sincerely,
Jos. W. Stern & Co.
To the Committee of the Senate on Patents, Senator Alfred B. Kittredge, of South Dakota, Chairman.
Gentlemen: I appear before you this morning in the name and as the representative of the firm of Jos. W. Stern & Co., music publishers, of New York, and in their behalf I wish to state that the bill on copyrights S. 6330, to amend and consolidate the acts representing copyrights, which is before you this morning, is of the highest importance, for the protection of the authors and composers and music publishers, to protect their copyrights.
The old law is very vague and unsatisfactory. The proposed new law would help music publishers and composers very much.
There has been a great deal of piracy going on and their best "hits" have been copied and pirated.
The new law makes such piracy a criminal offense, punishable by fine or a year imprisonment. If passed, as we hereby most humbly pray that it should be so, it will punish the pirates, because the fine alone can not stop their unjust deeds, and they laugh and pay their fine, but a year of imprisonment will certainly change all for the best. The said pirate would not risk a year of prison at all times.
Then again, the new law provides that no phonograph company or any makers of musical instruments, as well as makers of self-playing pianos, can deliberately use the work of the brain of the composer as well as the property of the publisher without permission to do so or paying some remuneration for the same.
Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it.
Along comes the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for the said publisher's or composer's rights.
They sell thousands and thousands of the "hits" of the publisher, which he has worked hard to make, without paying, as stated before, a cent of royalty for them.
The new law proposed remedies this, but of course the phonographic companies are fighting the new bill tooth and nail.
In this brief outline I shall include another important statement to show how much work, and anxiety of the brain a composer must use to write something in poetry or music, and what anxiety and worry he endures until the said "hit" is an accomplished fact. Sometimes his entire family depends upon the publishing of this brain work, and when it is accepted and the publisher issues the same for the public's appreciation, behold, in the next few days every sort of instrument is playing this man's composition.
I for one have suffered this injustice and piracy. Therefore I feel how dreadful it is in general to suffer and to be deprived of remuneration for the just and intelligent inventive brain work which a man produces by his genius.
This is, gentlemen, an excellent opportunity to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government. I conclude by appealing most earnestly and respectfully to the honorable gentlemen of the committee to do their utmost to forward the passage of this bill, and I am convinced that they will earn everlasting thanks and gratitude for creating a law which will earn for them recognition and will carry their name to history for having worked for the advancement of an industry which has been sorely oppressed by piracy and injustice.
Believing that my most humble indorsement of this new law and the desire of the firm of Jos. W. Stern & Co., who have authorized me to address this body in their behalf, will soon be upon the statute books protecting copyright, I have the honor to remain,
Very respectfully, yours,
D. P. Lewandowski, M.D.
34 East Twenty-first Street,New York City.
A. W. Elson & Co., Educational Art Publishers,Boston, June 5, 1906.
Herbert Putnam, Esq.,Librarian of Congress, Washington, D.C.
Dear Sir: As I do not expect to be able to be present at the first hearing of the copyright bill which is now introduced in Congress, I write to ask whether the suggestions that are made on the accompanying sheet can be placed in the hands of the committee.
I should like to appear in favor of these suggestions at any subsequent hearing that may be given by the committee on the bill.
I have arranged the suggestions in the order of importance from my own particular standpoint.
As this may reach you during or after the hearing before the joint committee of the Senate and the House, I have mailed a duplicate of this to the chairman of the committee.
Very truly, yours,
A. W. Elson.
Suggestions of additions and amendments to the copyright bill introduced before Congress May 31, 1906, entitled "A bill to amend and consolidate the acts respecting copyright."
Section 5 (subsection J).—That the words "and negatives" be added after the word "photographs," so that subsection J shall read: "Photographs and negatives."
Negatives are made the subject of copyright under the present copyright law, and there seems to be no valid reason why they should be omitted in the new copyright statute. It would very much simplify the copyrighting of all photographic reproductions if negatives were made the subject of copyright, and for the purpose of registration two prints of the negative copyrighted should be filed in the copyright office. I would therefore suggest that the following words be added to section 11, seventh line, after the word "edition," "or if the work be a negative, two prints made directly from it."
Section 13.—In this section typesetting and the lithographic process are singled out from all other processes connected with the manufacture of printed books, and given distinct protection from foreign competition over all other processes in making books that are copyrightable in the United States. Any such discrimination is unjust, and if this section is retained, the protection should be broadened to include any other processes besides lithography.
I would therefore suggest that section 13 be amended as follows: After the words "lithographic process," in the seventh line, and after the same words on page 6, first line, nineteenth line, and thirtieth line, there be inserted the words "or any other process or method," and after the words "a process," in the same line, the words "or method."
That the word "lithographs" in the second and third lines of the same page be erased, and the word "illustrations" be inserted in place of it; and on the same page, in the third line of that portion of section 13 on that page that the words "where" and "either" be erased. My preference would be to see the whole section dropped out, but failing in this no undue preference should be shown any one or two methods connected with the manufacture of books.
Section 39.—In its present form could be made clearer if it is intended to secure to an author of an original work of the fine arts any copyright which he may have obtained under the statutes on his work. On the other hand, if the section is intended to secure to an author or artist any potential copyright in a work on which he had not duly secured statutory copyright, then such provision, it would seem, would be unreasonable and unjust to the purchaser of the work; and I would therefore suggest the following wording for this section: "The author of any original work of the fine arts being the owner of such a work and having copyrighted it according to the provisions of this act or any previous United States copyright act, and who has marked upon such original work such notice of copyright as may be required by the act under which the work was copyrighted, shall not be deemed to sell or transfer said copyright upon selling or transferring the original work of art unless an agreement in writing covering the transfer of said copyright be signed by the author."
Section 37.—Is open to the same criticism as section 39. It might be corrected by the following changes, viz: That in the third and fourth lines the words "which is the subject of copyright" be struck out and the word "copyrighted" substituted for them.
Section 8.—In providing the conditions under which a foreign author or proprietor of any work may obtain copyright on such work within the United States, section 8 grants certain privileges to a foreign proprietor which are not granted to an American proprietor of a foreign work; as, for example, an American proprietor of a foreign painting who desired to copy and publish it in this country.
I would therefore suggest that section 8 after the words "provided, however" in the fifth line and through subsection (a) read as follows: "That copyright secured by this act shall extend to the work of an author who is a citizen or subject of a foreign state or nation only when such author or the proprietor of the work (a) shall be living within the United States at the time of the making and first publication of the work or shall contemporaneously with publication in some foreign country publish the work within the limits of the United States."
A. W. Elson,146 Oliver street, Boston.
New York,June 4, 1906.
Herbert Putnam, Esq.,Librarian of Congress, Washington, D.C.
Dear Mr. Putnam: I regret to find myself, after the strain of breaking up my home, totally unable to attend the meeting of the Senate and House committees on the 6th. In fact, it is out of my power to go to Washington this week for either the formal or the informal discussions.
It seems to me that my time of active work, relative to copyright, is about ended; and possibly I ought to resign from the presidency of the American Copyright League. I am no longer the president of the National Institute of Arts and Letters, Professor Sloane having become my successor. I think the later draft of your bill is in excellent shape as a basis for consideration by the joint committee.
Respectfully, yours,
Edmund C. Stedman.
Leo Feist, Music Publisher,New York, June 1, 1906.
Hon.Herbert Putnam,Librarian of Congress, Washington, D.C.
Dear Sir: Very many thanks for your courteous communication of the 29th instant, and I assure you that I appreciate the compliment paid in the sending thereof.
If all is well, Mr. Witmark and myself will be at the conference.
Earnestly hoping that the bill will be passed in its present perfect form, believe me,
Very truly, yours,
Leo Feist.
Wilcox & Bull, Counselors at Law,Buffalo, N.Y., June 5, 1906.
Hon.Herbert Putnam,Library of Congress, Washington, D.C.
My Dear Mr. Putnam: I beg to acknowledge, with thanks, various circulars and documents relating to the new copyright bill, including the proof copy of the bill as printed May 19, and the printed copy of the bill as introduced May 31, with notices of the first hearing before the joint committees of the Senate and House, on Wednesday, June 6, at the Library building, and of the preliminary conference to be held to-day, all of which have had my careful attention.
I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it, and particularly of yourself and Mr. Solberg. I am proud to have had any share, however slight, in outlining it, and shall be glad to take part as actively as possible in urging it upon Congress and commending it to the people at large.
As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.
The Consolidated Lithograph Company has suggested that I attend the hearing in Washington to-morrow. I should like to do this, at least for the purpose of showing the interest which we feel in the measure and to assist in impressing the committees of Congress with its importance, though I know that after this hearing the bill will simply lie over for further consideration and for action at the next session. But it seems impracticable for me to be in Washington to-morrow, and I think that I can be of more service at a later time, when I hope that the company will still be disposed to send me there.
Very truly, yours,
Ansley Wilcox.
P.S.—Will you please send me an extra copy of the bill, or two if you have them to spare?
STATEMENT OF WILLIAM P. CUTTER, ESQ., OF THE FORBES LIBRARY, NORTHAMPTON, MASS.
Mr.Cutter. Mr. Chairman and gentlemen, I claim to represent no association, nor to represent myself personally. I claim to represent only the public libraries of the following cities: Chicago, St. Louis, Baltimore, Louisville, Pittsburg, Newark, Minneapolis, Los Angeles, and Springfield, Mass. Also the libraries of the following universities and colleges: Yale, Cornell, Colgate, Wisconsin, Michigan, Amherst, and Brown; the New York State Library and the Connecticut State Library; the Western Massachusetts Library Club, comprising a membership of forty libraries, and the Connecticut Library Association, representing the organization of libraries in Connecticut. I wish to speak a few moments on that provision contained at the bottom of page 24 of the Senate print of the bill.
Mr.Webb. What section?
Mr.Cutter. Section 30; the third subsection of section 30, at the bottom of page 24, line 25, including all after the words "United States"—in other words, that portion of the bill which prohibits importation by public institutions of a certain class of books.
You are well aware of the fact that existing law allows public libraries to import two copies of any book without any restriction as to what the book shall be. There are certain points that will make the suggested legislation a great hardship to the libraries.
Mr.Currier. Pardon me just a minute. Can you import two copies of an unauthorized edition?
Mr.Cutter. Yes, sir.
Mr.Currier. Can you do that to-day?
Mr.Cutter. Yes, sir; we can now.
Mr.Currier. A fraudulent reprint, for instance?
Mr.Cutter. Yes, sir.
Mr.Currier. There is absolutely no restriction, as you understand it to-day?
Mr.Cutter. There is no restriction at all, as I understand, on library importations; but there is in this bill in regard to it.
Mr.Currier. I was asking about existing law.
Mr.Cutter. Yes; I understand that libraries can import any books that they wish.
Mr.Currier. I had the contrary opinion, but I may be mistaken.
Mr.Chaney. You object to that entire part of the bill, do you?
Mr.Cutter. Yes; I object to it principally for this reason: In importations for large libraries, such as those that I represent—it does not apply to small libraries which import only a small number of books—a case of books will come in from abroad, books that are not copyrighted in this country, English books. One book in that case might, by a mistake, be one which was copyrighted here, printed in England, and containing no notice of its copyright in the United States of America. If that fact was discovered it would send all of that box of books to public store; it would place all the box of books, as I understand, in danger of being destroyed; and it would place the librarian who did the importing in danger of having to show the Secretary of the Treasury, under this law, that he was not guilty of trying to import that book illicitly.
Mr.Currier. Under what section of this law? Let that go in the record right here.
Mr.Putnam. Sections 28 and 29, I think.
Mr.Cutter. Section 28 is in regard to the condemnation, on page 21 of the Senate print. Sections 26 to 29 include the penalties that I have referred to.
Our objection to that is the fact that libraries in these days must have at their disposal as quickly as possible the printed thought of foreign countries. If there is any delay in our obtaining the box of books (and those who have had experience, as I have, for thirteen years in importing books for libraries in this country, know that there is often six months delay in getting a box of books through the custom-house where there is the least question as to any of them) it would mean, practically, that our reason for buying the books at that time had disappeared. We want the printed English thought as quickly as possible.
Mr.Chaney. Do you think that is necessary to the efficiency of a public library?
Mr.Cutter. I do.
Mr.Chaney. That you should get those books immediately?
Mr.Cutter. I do; yes, sir.
Now, my other reason is a commercial reason; and in order to state it I shall have to go somewhat into ancient history.
About the year 1901 certain publishers of this country formed an association called the American Publishers' Association, and, in conjunction with the American Booksellers' Association, entered into an agreement to control absolutely the selling price of books in this country. It was an agreement among the publishers that they would not furnish books to booksellers who would not agree to sell the books at a standard price—in other words, a trust proposition.
Mr.Chaney. We have heard of trusts before. [Laughter.]
Mr.Cutter. The libraries were granted a 10 per cent discount from the price of the class of books affected by this agreement, so-called net-price books. We discovered, however, on examination, that these new prices which were fixed were so much higher that the net result to us was an advance of 25 per cent in the price of the book, and we found that the majority of those books were not books written by American authors, but they were books written by English authors and copyrighted in this country, and that there was a difference in price amounting to the 25 per cent tariff on printed books. So that this question, gentlemen, is a question of trusts and a question of tariff.
Now, the librarians have been getting around that by importing English books, because the same book printed on the other side is sold in the case of these expensive books at a very much reduced price compared with the price on this side. If—I am going back now to my first position—if I am prevented, by the difficulties in getting through, by accident, a copyrighted book, from getting at the noncopyrighted book so long, then I will be forced to go to Mr. Scribner, who will buy the books for me abroad at his price, against my interest.
SenatorMallory. Do I understand you to say that that book trust is still in operation?
Mr.Cutter. Certainly.
Now, I am connected with a library that spends $12,000 a year for books in a country town. Of this sum $5,000 is spent for English books. I am a representative of a city government which taxes itself to a certain extent to educate the people in its community, and I object seriously to paying $1,000 of that $12,000 to American publishers as a tax. That is my point.
Mr.Currier. What changes in this bill do you suggest?
Mr.Cutter. I should suggest the entire elimination of that provision.
Mr.Currier. Of the entire paragraph?
Mr.Cutter. No; after the words "United States."
Mr.Currier. That was the suggestion I made some time ago—after the words "United States," in line 25.
Mr.Chaney. Yes; precisely.
Mr.Currier. Would that be satisfactory to the people whom you represent?
Mr.Cutter. That would be satisfactory. I think it would be satisfactory to all librarians.
Mr.Hinshaw. This would allow you to import, however, but one book, whereas you have had the privilege of importing two?
Mr.Cutter. One book, but we are perfectly satisfied with that. I think any library would be. A ruling of the Treasury Department has held that a branch library is a library itself, so that in the case of a large library wanting a book for each of several branches it would be possible to import more than one.
Mr.Currier. With that stricken out, the people you represent would not object to sections 26, 27, 28, and 29?
Mr.Cutter. No; it does not affect them.
The other point I wish to make is on behalf of another interest. I wish to speak a word in behalf of an interest which is not represented here at all—two interests, in fact. The first is the firms that are in the business of importing books into this country and are not represented and have not been asked to be represented; have not been asked to come to these meetings. There are certain firms that are not in the publishing business that are in the business of importing books.
Mr.Currier. I think we ought to say right there, as you say they have not been asked, that the committee invites everybody.
Mr.Cutter. Yes; I mean up to this time they have not been asked.
Mr.Currier. Those who were not represented at the conference, as well as those who were.
Mr.Cutter. Whether they were asked here or not I do not know. Of course, this being a public hearing, they had a right to appear. But the point I want to make is this: That a great many of our libraries have to import books through these men, because they get a cheaper rate of importation through them than through some of the firms that are also publishers of books. This would prevent the importation of some of these books through those firms. It would practically ruin their English business, largely ruin it; and on behalf of a library that uses that method of importation largely, it seems to me that some provision might be made for other importers than those who are publishers of books.
Those are the only arguments that I wish to present.
Mr.Chaney. To what section of this bill do you now refer?
Mr.Cutter. I am referring to the subsection of this same section on page 24—section 30.
Mr.Chaney. Do you mean subsection E?
Mr.Cutter. Yes.
Mr.Currier. No; the subdivision called "First."
Mr.Chaney. Oh, I see.
Mr.Cutter. I suggest this amendment to the clause reading, "When imported, not more than one copy at one time, for use and not for sale, under permission given by the proprietor of the American copyright."
I suggest leaving out the consent of the American copyright proprietor. That changes existing law only in these particulars: It allows the importation of only one copy instead of two copies, as the existing law does; it gives the importer who has established a business here based on legislation, and who is closely in touch—the firms that I speak of serve libraries and learned men mostly with expensive books and have practically no sale to the ordinary public—it would give them an opportunity, and it would give a scholar in this country who wants a book for a particular purpose for his own use and not for sale an opportunity to import it.
Mr.Chaney. So that if you strike out "under permission given by the proprietor of the American copyright" it satisfies them?
Mr.Cutter. It would satisfy the request of the importers, who are not publishers.
Mr.Currier. Do you appear for the importers?
Mr.Cutter. I appear for one of them only.
TheChairman. Do you feel that you are authorized to speak for the others?
Mr.Cutter. I am authorized to speak for one firm only.
TheChairman. Do you feel that you represent the other importing firms?
Mr.Cutter. I do not; no. I am quite convinced that I would be allowed to represent them, but I have had no communication with them.
Mr.Bonynge. But you think you state their views on the subject?
Mr.Cutter. I have not any doubt of it.
Mr.Chaney. You spoke of "ancient history" back as far as 1901. Do you regard anything back behind that as ancient history?
Mr.Cutter. No; but it is ancient history in the book business. That is when the publishers of this country discovered that the Carnegie gifts had made the library trade so large that they must do something to make some more money out of it.
Mr.Putnam. With your permission, Mr. Chairman, I would suggest that Mr. Bethune, representing certain of the reproducing interests particularly—I ought not to limit that by the word "reproducing," but who represented at the conference the Reproductive Arts Copyright League—should be heard.
STATEMENT OF FANEUIL D. S. BETHUNE, ESQ.
Mr.Bethune. There are but two or three sections which the Reproductive Arts Copyright League wish at this time to comment upon.
Mr. Millet, on behalf of the artists, has stated that they are satisfied with the sections relating to paintings as they stand, but as I understand it the word "accessible," in section 14——
Mr.Chaney. Whereabouts?
Mr.Putnam. It is the last line on page 10 of the bill.
Mr.Chaney. I see.
Mr.Putnam. It is in the second paragraph in the Library print.
Mr.Bethune. That is such an indefinite, uncertain term that we think——
SenatorLatimer. What are you referring to; what term?
Mr.Bethune. The word "accessible"—"or if a work specified in subsections F to L, inclusive, of section 5 of this act, upon some accessible portion of the work itself or of the margin," etc.
Mr.Chaney. Where would you put it?
Mr.Bethune. Let it be on some accessible portion, but let the bill provide that it shall be always uncovered. As it stands now, it might be on the back of the painting, and the painting might be in a box, and it would be accessible in a sense.
Mr.Chaney. You would put in the word "uncovered?"
Mr.Bethune. It should be uncovered.
Mr.Putnam. Accessible and uncovered?
Mr.Bethune. Accessible and uncovered. We want to be able to ascertain at once by examining the painting in the frame, if it is in a frame, whether the picture is copyrighted or not.
Section 9 provides, about the fifth or sixth line, that "in the case of a work of art" the notice "shall be affixed to the original before publication thereof." The word "publication" is not defined, and it has been the source of considerable litigation as to what is and is not publication.
TheChairman. Has that been settled by the courts?
Mr.Bethune. It has not been settled by the courts. There are differing decisions now.
Mr.Currier. Is it not ordinarily understood to be the putting on sale of the object?
Mr.Bethune. No; I think not—not if it is a private sale. I think a sale should be specifically stated by the statute to be a publication, whether a private or a public sale, and the public exhibition of a painting should be a publication of it.
Mr.Currier. Will you suggest an amendment that will meet your idea?
Mr.Bethune. I am not prepared to suggest an amendment, but I shall do so in writing to this committee, if I may.
Mr.Chaney. In a general way, what is your idea?
Mr.Bethune. That the statute should state that certain things shall constitute publication of a work of art, and state that publication shall include a sale, whether a public or private sale, and a public exhibition of the work of art.
I must refer again to section 14. That provides that not only in respect of paintings, but also maps and photographs, the notice can be on the back or the margin. Now, so far as a painting is concerned, that is quite satisfactory to us if the notice is to be "uncovered," but in respect of a photograph, which may be very loosely attached to a little piece of pasteboard, and the notice may be put on the pasteboard, which could be very easily removed from the photograph. The reproducer to whom the photograph is then brought, there being no evidence of its having been detached from any mount, may be easily misled, and before he discovers that he is infringing he may have invested thousands of dollars in the undertaking to reproduce it.
Mr.Currier. Then your suggested amendment, "uncovered," does not meet this objection, which you now state, at all?
Mr.Bethune. It does in respect of the painting, but I do not think that so far as the photograph is concerned the law should permit the notice of copyright to be simply on the thing to which it is attached or mounted. It should be on the photograph itself. I think that that will prevent litigation and expense to both photographers and reproducers.
Mr.Putnam. Mr. Chairman, may I ask Mr. Bethune to state whether, under the present law, the notice can be put on the mount of a photograph? Is that your understanding—that it can not be, and that this is an extension of the privilege?
Mr.Bethune. I understand that it can under the present law.
Mr.Putnam. That it can now; so that this simply repeats the privilege.
Mr.McGavin. An objection was made here yesterday, I think, on the ground that it would deface the photograph.
Mr.Bethune. Yes; that objection has been made by the photographers; but I leave it to the intelligence of this committee——
TheChairman. And in case of a fine picture, for instance, the artist might object to having the words prescribed by this act appearing permanently upon the face of the picture.
Mr.Bethune. Yes, he might; but as a matter of fact, I am informed that there are very, very few artists who do not insist upon putting some mark, if not their name, upon the face of their painting.
TheChairman. Can you call attention to that section?
Mr.Bethune. There is no section in this bill providing for the placing of the notice upon the face of the painting; but, I say, there are very few artists, I am informed——
TheChairman. Where is the section that prescribes the form?
Mr.Bethune. Section 14.
Mr.McGavin. On page 10.
Mr.Bethune. It may be simply a "C," with a little circle around it.
SenatorMallory. Do you object to the word "accessible" here, on line 10?
Mr.Bethune. Yes; the word "accessible."
Mr.Putnam. Except as coupled with the word "uncovered."
Mr.Bethune. Yes.
Mr.McGavin. If this language were made to read "accessible and uncovered," it would necessarily, then, require that it be placed upon the face of the photograph or picture, would it not?
Mr.Bethune. No; I think not.
Mr.McGavin. You could not put it on the back, where it would be uncovered?
Mr.Bethune. No; I do not think that that would be covered——
Mr.Campbell. How about the word "visible?"
Mr.Bethune. "Visible" was the word which I suggested at the conference. I do not know why it was not put in.
Mr.Putnam. I may say, Mr. Bethune, if you will permit me, Mr. Chairman, that this question of notice was a long-discussed question between the artist group and the committee of the reproduction group; and they started, of course, at very opposite extremes. We understood finally that they reached this point: That in the first place there should be a notice. That was a concession on the part of the artist group, who thought there ought not to be any notice except their own name. That there should be a notice—that is, something to indicate copyright, even if it should be only "C" within a circle—was insisted upon by the reproducing group. So that it was agreed that there should be something to indicate copyright. Where should it be?