Arguments before the Committee on Patents of the House of Representatives Part 10

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 pa.s.sage 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, n.o.body 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 cla.s.ses) 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 cla.s.ses 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 n.o.body 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 hards.h.i.+p 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 hards.h.i.+p, 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 hards.h.i.+p 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.