Arguments before the Committee on Patents of the House of Representatives Part 27

Mr. PUTNAM. Can you tell us whether in case the word "lithograph" is put in there, it might be necessary to put in the words "etching" and "engraving?"

Mr. MALCOMSON. No.

Mr. PUTNAM. You make an entire distinction, as I understand it?

Mr. MALCOMSON. Yes; an etching and an engraving would come under a pictorial ill.u.s.tration, without any question. An etching is a pictorial ill.u.s.tration of a subject, certainly, and an engraving is a pictorial ill.u.s.tration of a subject; but a lithograph, when the word is used subsequently in the law, it seems to me should have a place in the section which provides protection for certain subjects.

Mr. CAMPBELL. I find here that in the dictionary, under the noun "print," is this definition:

1. An impression with ink from type, plates, etc.; printed characters collectively; printed matter; as, small print; the print is illegible.

2. Anything printed from an engraved plate or lithographic stone----

Mr. MALCOMSON. I agree with you that the courts might hold that that was sufficient to cover it--that the word "print" would cover a lithograph, and I should contend so before the court; but it is this late decision which leads me to feel that, in so much as it is not going to do any harm, why should we leave it out? Why should we leave it out?

The CHAIRMAN. Are there any other gentlemen to be heard now?

Mr. PUTNAM. Mr. A. Beverly Smith, speaking for the Reproductive Arts Copyright League, and particularly for certain groups of lithographers, simply desired me to say that he thinks also that the word "lithographs" should go in, but that it should go in in a separate subsection, and should be coupled with the word "posters." On the other hand, I ought, to complete the record of this day, to call your committee's attention to a communication from Mr. Ansley Wilc.o.x, which has been presented to the committee. He was here in behalf of an establishment that gets out lithographs, and particularly posters, and he was at the conference particularly concerned about the protection of that material. He writes, and his letter has already gone down to be put in the record, or I should read it; but substantially this, that he considers the specifications of those subsections as very liberal and fully covering all that he is interested in. This is simply for your information.

Mr. A. BEVERLY SMITH. May I correct the statement of the Librarian, Mr. Chairman? I do not think it is necessary that the word "lithographs" should go in there.

Mr. PUTNAM. I beg pardon, then. I thought you did.

Mr. A. BEVERLY SMITH. I agree with the statement made to you by the Librarian regarding consultation with your legal advisers as to whether or not it should be put in. If you decide to put it in, I think it would be much wiser not to couple it with prints and pictorial ill.u.s.trations at all, but to make a separate cla.s.sification.

And if you do decide, after consultation, to put lithographs in, I think that that will also require the word "posters" to be put in. I personally do not believe that either one is necessary to be defined separately.

(Thereupon the committee adjourned until to-morrow, Friday, June 8, 1906, at 10 o'clock, a.m.)

COMMITTEE ON PATENTS,

HOUSE OF REPRESENTATIVES,

_Friday, June, 8, 1906_.

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

Present: Senators Kittredge (chairman), Smoot, and Latimer; Representatives Currier, Campbell, Chaney, McGavin, Webb, and Southall.

Mr. CURRIER. Mr. Solberg, yesterday, when Mr. Cutter was testifying, I asked him this question: "Can you import two copies of an unauthorized edition?" He said, "Yes, sir." I asked, "Can you do that to-day?" He answered, "Yes, sir; we can now." I asked, then, "A fraudulent reprint, for instance?" "Yes, sir." "There is absolutely no restriction, as you understand it, to-day?" "There is no restriction at all, as I understand it, to-day."

I would like to ask you if you understand the practice to be as Mr.

Cutter states?

Mr. SOLBERG. The prohibition of importation was introduced into the copyright law by the act of March 3, 1891, and it was a prohibition of importation additional or extra to that which is supposed to have existed in copyright law against any unauthorized copies. The law as it stood prior to that provided that these unauthorized copies could only be permitted importation upon the consent of the copyright proprietor. That is, the author himself or the copyright proprietor could import even a fraudulent copy.

Mr. CURRIER. That was prior to 1891?

Mr. SOLBERG. Yes. But in the act of March 3, 1891, it is stated, in connection with the typesetting clause, that copies of books not printed from type set within the limits of the United States or from plates made therefrom shall not be imported: and then certain exceptions are introduced, and one is an exception directly on behalf of the individual buyer. The other exceptions are on behalf of libraries, which consist in paragraphs of the free list of the tariff act taken over into the copyright law. It is therefore a matter of interpretation of the law what the interpolation of these exceptions means. Now, I can not authoritatively give that interpretation.

Mr. CURRIER. I would like your understanding of the practice since the law of 1891.

Mr. SOLBERG. Perhaps the best light I can throw on that is the statement that there is an opinion from the Department of Justice, the Attorney-General, that the exceptions would not bar an unauthorized copy.

Mr. CURRIER. Then you understand that Mr. Cutter is right in what he says?

Mr. SOLBERG. I would understand it so far as that decision or opinion would be supported and would be taken as final.

Mr. CURRIER. Is there any opinion in conflict with that?

Mr. SOLBERG. There are a number of opinions, none directly in conflict; none directly upsetting that.

Mr. CURRIER. Do you know what the practice of the Treasury Department is now?

Mr. SOLBERG. No; I am not competent, I think, to say; but Mr.

Montgomery could answer that question if he is here, because it comes under the collector of customs.

Mr. CURRIER. If there is any gentleman present who has information on that subject and can answer that question we would be glad to hear from him.

Mr. PUTNAM. Mr. Montgomery was here yesterday; I think he will be here a little later. I think it might be helpful, if you will permit me to suggest, Mr. Chairman, as pertinent (it goes beyond your question, but is relevant in connection with it), as to whether such importation is, according to the register's information of foreign legislation, customary abroad--such privilege of importation of an unauthorized foreign edition of a book printed in the foreign country under domestic law there?

Mr. CURRIER. My purpose in seeking this information is to establish the fact, if it be a fact, where you provide that the importation must be an authorized edition, whether that is a change in law or not, a change in practice, whether it is an additional restriction. That is what I was trying to get at. I have asked a number of times whether subdivision E, at the top of page 16, "To any book published abroad with the authorization of the author or copyright proprietor," etc., changes existing law and is an additional restriction upon importation; that is all.

Mr. SOLBERG. You see, the question is difficult of answering categorically, Mr. Chairman, because it is a question of the interpretation of a complex statute.

Senator SMOOT. From the present interpretation of the law there is not any doubt in the world, then, but what this is a restriction?

Mr. SOLBERG. I should say that this act attempts to make clear that all fraudulent copies are barred.

Senator SMOOT. That is a restriction, then?

Mr. SOLBERG. As a protection of the copyright.

(The following communication from the register of copyrights is printed in connection with his above remarks by direction of the chairman:)

LIBRARY OF CONGRESS, COPYRIGHT OFFICE, _Was.h.i.+ngton, D.C., June 15, 1906_.

DEAR SIR: I ask to be allowed to file for the printed report of the hearing on the copyright bill the following, in addition to my answers to the questions you asked me on Friday, June 8, in relation to the importation of copies of unauthorized editions of American books:

1. It is fundamental to the protection of copyright that all unauthorized reprints of copyrighted books shall be prohibited importation into the country of origin. It is therefore provided in all foreign copyright legislation that such unauthorized copies shall be prohibited importation. Such copies are treated as fraudulent copies, and I know of no provisions in any foreign legislation which permit importation of unauthorized copies either by individuals, educational or other inst.i.tutions, or libraries.

In the copyright legislation of the United States prior to 1891, the provisions prohibiting importation dealt only with unauthorized copies and these were prohibited importation, except with the direct consent in writing of the author or copyright proprietor.

2. The act of March 3, 1891, introduced an additional prohibition of importation, namely, of copies of authorized editions of foreign copyrighted books, or of authorized foreign reprints of American copyright books, unless printed from type set within the limits of the United States or from plates made therefrom.

To this prohibition of importation certain exceptions were enacted in favor of private book buyers, educational inst.i.tutions, and libraries; and some paragraphs of the free list of the act of October 1, 1890 (permitting importation without the payment of duty) were taken over into the copyright law to insure that the articles named in these paragraphs should be included in the exceptions to the prohibition of importation of copies of authorized editions of books.

It was not supposed that Congress intended that these exceptions to the prohibition of importation should apply to unauthorized editions, but upon the matter being submitted to the Department of Justice an opinion was filed by the Solicitor-General ruling that the exceptions did extend to unauthorized reproductions of American books. (See Opinion of Holmes Conrad, April 19, 1895; Synopsis of Treasury Decisions for 1895, pp. 495-498.)