ARGUMENTS BEFORE THE COMMITTEE ON PATENTS OF THE HOUSE OF REPRESENTATIVES, CONJOINTLY WITH THE SENATE COMMITTEE ON PATENTS, ON H.R. 19853, TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT. (continued 2)

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 copyrights," 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 (page 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), (page 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" (page 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" (page 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (g) and."

These amendments to section 23 are for the purpose of making the penalty relative to unlawful use of devices, etc., enumerated in section 1, Clause Z, one dollar instead of ten, which latter amount is excessive. It puts the device for reproducing sound on basis of books, etc., instead of in the class of paintings, statuary, or sculpture.

A brief memorandum of argument will be submitted later.

Senator Smoot. I would like to ask Mr. Sousa a question. I was very much interested in your statement, Mr. Sousa, pertaining to talking machines taking the place of the human voice, and I will ask you this question: If you were protected in your productions and received a royalty from the talking machines, would that lessen the use of the talking machines any and strengthen the use of the voice and the brass band and the home choir, and so on?

Mr. Sousa. I do not think so, but I think it will reduce two wrongs to one.

Senator Smoot. Then, it is simply a question of your receiving the royalty that you think you are entitled to?

Mr. Sousa. Yes, sir.

Senator Smoot. I think there are other causes besides the general use of the talking machine that account for the fact that there is less singing than there used to be. I think we do not live quite as close to nature as we used to, and that that is what used to make us sing.

Mr. Sousa. That is very true. But the more leeway you give the talking machine the greater encroachments they will make. If they are made to pay a royalty on all compositions that they use, perhaps they will not have so many bad ones in their records. [Laughter.]

Senator Smoot. That is what I intended to find out, as to whether it was simply a personal affair.

Mr. Campbell. Is not the real reason that if it protects you and other composers, there is an incentive to you to compose?

Mr. Sousa. Oh, yes; I can compose better if I get a thousand dollars than I can for six hundred. [Laughter.]

Mr. Campbell. That is the real reason.

STATEMENT OF PAUL FULLER, ESQ., OF NEW YORK.

Mr. Fuller. My original rôle, Mr. Chairman and gentlemen, was as one of the members of the Bar Association of New York, and as chairman of the committee to express to you gentlemen all the efforts that had been made and the most extraordinary result that has been accomplished from conflicting interests in getting up the framework of this bill, and to say on behalf of a number of the conferees, we will call them—the American Publishers' Copyright League, the America Publishers' Association, the National Academy of Design, the Fine Arts Federation, the Music Publishers' Association, the American Library Association, the Print Publishers, the Engraving Copyright League, the United Typothetæ, and the National Typographical Union—that they felt that a great achievement had been reached in getting the framework of this bill in its present condition. It is in such shape now that when anything is the matter with it we know where to apply the remedy. In the present chaotic condition of the copyright laws it would require an X ray to find where the mistake was and how to remedy it.

I did not intend to say more than a word, but the suggestions made by the last speaker, Mr. Pettit, are of so vicious a character—not intentionally so, but they show precisely how a good bill can be made bad—that I am going to extend my remarks for the five or ten minutes required to point out why they should not be regarded at all.

For instance, take section 3. Our friend wants to alter that, and it is absolutely unalterable if justice and common sense are to prevail. All that section says is that the copyright shall extend to all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting.

If there is no copyright subsisting to keep a man from singing my song through a phonograph, there is no harm done. If it is subsisting, he must pay the penalty, and the courts will ultimately determine that. The question is now before the courts. It seems to me strange that any court should hesitate to say that a man who not only copies my notation, but who actually reproduces the music, the sound, should not be required to pay me for that privilege. If a man engraves my music and sells it by the sheet, he is a counterfeiter, and I can get money from him and punish him, but if he does more than that—if he completes that counterfeit to the extent of the reproduction of the actual sound that the composer had in his brain when he put it there—they say he has not imitated. That question is before the courts. Do not touch it. Do not touch it. This new law makes it certain for the future, but do not endeavor to touch the past. Let the courts decide what the present law is.

I say that the present law will protect these gentlemen from that piracy—because it is the ultimate form of piracy. It goes further than the reproduction of the composer's music sheet. It reproduces the sound. So that they have taken everything from the music man when they reproduce it on the disk. Therefore I say leave this provision in the bill: "And all matter reproduced therein in which copyright is already subsisting." Do not touch it.

In section 18 my friend (Mr. Pettit) wants to have the disks copyrighted. Mr. Bonynge put his finger right on the point of that proposition, and perhaps it is unwise for me to say anything further. That is a patentable device, and it has been patented, and there is nothing original on that disk—nothing original to the company that makes that disk. The company has borrowed it or bought it or stolen it from somebody else, and they want to copyright that. For heaven's sake, let the copyright stop somewhere.

Mr. Bonynge said: "Would you prevent the man who sang into your phonograph, or talked into it, from singing or talking into any other?" Certainly not. It is not an original production. It is not the work of an author or composer or artist. There is nothing intellectual about it, except that it is scientific, and the scientific part of it is protected by his patent. The reason I am so emphatic about that is that when you endeavor to put in the ideas of patents and the protection of inventions into this law you dislocate it and disarrange it.

Senator Lattimer. The musician may memorize that music, and may entertain an audience with it, but he can not sing it into a phonograph; is that it? According to your position, as I understand it, the singer may take the music of Mr. Sousa, commit it to memory, and may stand before an audience and entertain the audience with Mr. Sousa's music and reproduce it to the audience, but he can not reproduce it in a phonograph?

Mr. Fuller. If he has paid Mr. Sousa for the privilege of that public performance. But he can not, at the same time, under the payment for the privilege of a one-night stand, sing it into a phonograph and give it to a million people all over the country.

Mr. Bonynge. And he can not give that public performance unless he has paid Mr. Sousa his royalty?

Mr. Fuller. No.

Mr. McGavin. Would not the copyrighting of this phonograph record give the musician, say Mr. Sousa, double protection? He already has the protection of the copyright on his sheet music, has he not?

Mr. Fuller. Yes.

Mr. McGavin. And he would have the further protection of the copyright of the music as it goes into the phonograph, would he not?

Mr. Fuller. No; it is the talking-machine people who want a copyright on that, and to hold it against the original composer.

Mr. Chaney. I did not understand Mr. Pettit that way.

Mr. Fuller. Mr. Sousa is entitled to it, whether he prints his music on a sheet of paper or whether he prints it on a disk; but the man that prints it on the disk is not entitled to it. That is all.

Mr. Bonynge. He has not originated anything.

Mr. Fuller. No.

Mr. Bonynge. Except that the disk is a patentable thing, and on that he has a patent.

Mr. Fuller. Yes. The bill is a compromise, and one which every lawyer here and every lawyer who was at the conference thinks he can better; but it is the best that could be had to protect and satisfy all the interests. It has been stated that perhaps none of the interests are entirely satisfied. If that is true, it is the best kind of a bill. There are only two kinds: The bill that is perfect, the one that satisfies everybody—and there is none such; and the one that satisfies nobody, because nobody has had injustice done.

Mr. Sulzer. Mr. Chairman, I move that two copies of the proceedings of these hearings be printed, one for the Senate and one for the House.

Mr. Chaney. I second that motion.

(The motion was carried, and the committee thereupon adjourned until to-morrow, Thursday, June 7, 1906, at 10 o'clock a.m.)

Committee on Patents,

House of Representatives,

Thursday, June 7, 1906.

The committee met at 10 o'clock a.m., pursuant to adjournment, conjointly with the Senate Committee on Patents.

Present: Senators Kittredge (chairman), Mallory, and Latimer; Representatives Currier, Hinshaw, Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb.

Mr. Putnam. Mr. Chairman, Colonel Olin was next upon the list of those who were to speak for particular groups in the conference. Colonel Olin participated in the conference as counsel for the American Publishers' Copyright League, and I think that he tends in his remarks to express something of the sentiments of some others of the publishing group.

STATEMENT OF STEPHEN H. OLIN, ESQ.

Mr. Olin. Mr. Chairman and gentlemen, a number of different bodies, mainly publishing and reproducing bodies, which participated in this conference, thought it proper, in view of the dignity of this occasion, the unprecedented meeting of the committees of the two Houses, that they should collectively say in very few words what they all thought of this bill, that so they could best serve the committee, so they could best provide that nothing should belittle the force of the language of the President or the clearness of the presentation as to the bill made by the Librarian.

These bodies who have authorized me to speak in their behalf in this matter are the Academy of Design, the Fine Arts Federation, the American Publishers' Association, the American Publishers' Copyright League, which two bodies include practically all the publishers of the United States; the United Typothetæ, which include all the great employing printers of the United States; the Music Publishers' Association, some forty-two music publishers who, by habit, not only represent themselves but those musicians who rely upon them for protection; the Photographers' League of America, the Print Publishers' Association, which two bodies represent largely the illustrating interests of the country; the International Typographical Union, which, as the committee knows, represents the typesetters and printers; and finally the American Library Association, wish me on their behalf to say that this bill in its present form has their substantial approval. It is understood that suggestions of modifications as to detail may be made by these organizations individually through the Librarian of Congress; and I submit their signed paper to that effect to the committee.

Mr. Chairman, it seems to me that this simple statement on behalf of these bodies carries a very strong prima facie argument in favor of this bill. The greater part of the effort of the authors of this bill has been to provide in that field of copyright which Congress has already bounded and established, and which the existing law creates, a reasonable and orderly regulation; to provide against these conflicts and uncertainties and difficulties which the repeated amendment of the law has brought about.

I think everybody would, further, be glad if there could be such a bill as most men could read with some intelligence; that would not need not merely a lawyer, but a copyright lawyer, to interpret. I think most men would be glad, furthermore, in view of the importance of international copyright, if it were such a bill as an intelligent foreigner could understand and an intelligent foreign lawyer could advise about, and such a bill as that the people who are used to it here would thereby be taught something of the general copyright law and could better understand foreign rules. But at any rate, these organizations whose names I have read to you represent, with some few exceptions, roughly, the whole body of men interested in the actual working of the law. Most of them, I think, except those who are purely authors and creators, like the arts associations, have at some time or other been on each side of a copyright controversy. In their business some of them are owners of copyrights and desire to enforce their copyright as far as possible, and most of them are also desirous at times of using literary or artistic matter which is protected by copyright, and they desire that the law shall be precise, so that they can understand their rights and not unwittingly be guilty of offense.

So, for all these reasons, it seems to me that when they come to you and say, substantially, "This law is satisfactory to us," you may be sure that prima facie there is a law here that is an improvement on what at present exists, and which, on the whole, will give a reasonable and sane regulation of this most important matter. And of course if any of them come to you with special ideas as to improvement, you will hear and pass upon them for what they are worth.

I am going to leave that without any argument, because it seems to me the fact itself is persuasive and that it must impress this committee with the substantial value of this bill that has been presented.

There is one thing which the committee will naturally scrutinize with great attention, and that is every provision of this bill which in any respect seems to extend the field of copyright as Congress has previously bounded it; that is to say, which gives copyright upon some new article, or extends the term of copyright, or gives copyright to people who did not formerly possess it, or which in any degree limits the right of the public as against the copyright owner. The bill, I think, makes no very large incursion into that region, but it is that region which, I am sure, this committee will principally wish to examine. With your permission, I shall briefly speak of those things which occur to me as to such extensions.

First of all, the bill does extend the privilege of copyright to preventing the reproduction of musical sound or spoken words by machinery. That was spoken of before the committee yesterday. All that I can say about it is that this body whom I represent, although some of them have special interests in it (and they wish to be heard on it hereafter), in general look upon the matter as the circuit court of the United States in the second circuit looked upon it in their last decision on the subject, as being a matter germane to the copyright law, relating to the same kind of rights that Congress has hitherto protected, and that they see no reason why such rights should not hereafter be properly protected; and they respectfully refer the committee, so far as their suggestion goes, to the special information and advice of those on both sides of the question who have the greatest interest in it and the greatest capacity to inform the committee in regard to it.

The Chairman. Can you give the citation of the decision that you have mentioned?

Mr. Olin. I can hand it to you. A printed copy of the decision was handed to me yesterday. It has not yet been reported.

Mr. Chaney. That was the decision that was distributed yesterday?

Mr. Olin. Yes; that is the one.

The Chairman. Unless there is objection on the part of the committee, we will have this decision put in the record.

(The decision referred to is as follows:)

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.

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.

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.

The Chairman. 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.

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.

The Chairman. 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.

Senator Mallory. 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.

The Chairman. 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.

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.

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:

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?

The Chairman. 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.

Senator Mallory. 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.

Senator Mallory. That is, there was an English publication under one title and an American publication under a different title?

Mr. Ogilvie. Yes.

Senator Mallory. Were they identically the same book?

Mr. Ogilvie. No; not identically the same book, even.

Senator Mallory. 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 book ad 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.

The Chairman. 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.

The Chairman. 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.

The Chairman. 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.