Arguments before the Committee on Patents of the House of Representatives Part 14

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 t.i.tle-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 t.i.tle-page.

In regard to the publication of books under two t.i.tles, 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 t.i.tle 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' a.s.sociation 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 a.s.sociations. 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 a.s.sociations, 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 Const.i.tution decided was a limited time. Let us a.s.sume 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 Const.i.tution. [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' a.s.sOCIATION.

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 circ.u.mstances.

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 circ.u.mstances.

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 pa.s.sage 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.