Arguments before the Committee on Patents of the House of Representatives Part 13

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 a.s.sume, under this section, that a copyright expires next year. Let us a.s.sume that this bill pa.s.ses, 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 ent.i.tled 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? a.s.sume 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 ill.u.s.trate 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 t.i.tle in the United States and under another t.i.tle 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 t.i.tle, in either the name of the English publisher or the name of an American publisher, whose name also happened to be on the t.i.tle-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 ent.i.tled 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 t.i.tle 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 t.i.tles, you say?

Mr. OGILVIE. Yes, sir.

Senator MALLORY. That is, there was an English publication under one t.i.tle and an American publication under a different t.i.tle?

Mr. OGILVIE. Yes.

Senator MALLORY. Were they identically the same book?

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

Senator MALLORY. Which t.i.tle did you publish under?

Mr. OGILVIE. Under the English t.i.tle.

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 ent.i.tled 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 subst.i.tute 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 pa.s.sed, 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 pa.s.ses, 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.