Arguments before the Committee on Patents of the House of Representatives Part 11

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 pa.s.s. 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 pa.s.sage 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 Sat.u.r.day 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 ent.i.tled 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 publis.h.i.+ng 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 pa.s.sed 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 a.s.signed, or a license granted therein for publication upon payment of royalty, the copyright shall be renewed and extended only in case the a.s.signee 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 Const.i.tution 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.