Arguments before the Committee on Patents of the House of Representatives Part 3

Sections 4963, page 13; 4964, page 14; 4965, page 15; 4966, page 16.--Penalties imposed for acts in the nature of misdemeanors no longer to be shared by the United States with "a person" suing for them; sums recovered by way of compensation to the copyright proprietor not to be shared by him with the United States. All infringements willful and for profit made misdemeanors, and the remedies provided by sections 4965 and 4966, including the specifications of a definite sum for each infringing copy, etc., and a minimum and maximum total are expressed definitely as compensation to the copyright proprietor rather than penalties.

Section 4964, page 14.--Witnesses not to be required for the written consent of the copyright proprietor.

Act of March 3, 1891, page 18.--Only one fee to be required in case of several volumes, or numbers or (in certain cases) parts of a series deposited at the same time with a view to a single registration.

Act of January 7, 1904, page 19.--Omitted as obsolete.

I have particularly noted in this memorandum the points in which the bill intentionally abrogates existing law and the more significant respects in which it modifies or amplifies it. The respects in which it intentionally abrogates existing law are very few, as shown in Part B of the memorandum. The phraseology of existing law is only here and there recognizable in the bill. That is because the bill attempts to be systematic and organic, and, second, because it has sought general terms, wherever descriptive, rather than particular specifications.

Especially has it preferred this where the specifications might be limiting. This, as I have noted in the memorandum submitted to you, is particularly ill.u.s.trated by the treatment of the "subject-matter." The bill contains only the general statement that the subject-matter is to include "all the works of an author," leaving the term "author" to be as broad as the Const.i.tution intended; and, as you know, the courts have followed Congress in construing it to include the originator in the broadest sense, just as they have held "writings," as used in the Const.i.tution, to include not merely literary but artistic productions.

After this general statement certain specifications follow in the bill of particular cla.s.ses under which a particular application is to be made in the office, but these specifications are coupled with the proviso that they shall not be held to limit the subject-matter. The specifications so far as possible also subst.i.tute general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statues and statuary." They a.s.sume, however, that all of these articles will be included under the more general terms, as "prints and pictorial ill.u.s.trations" or "reproductions of a work of art" or "works of art" or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts" in the present statute with the idea that there is subject-matter (for instance, of applied design, not yet within the province of design patents), which may properly be ent.i.tled to protection under the copyright law.

The attempt to subst.i.tute general terms for particulars is evidenced also in the definition of the right, and of the acts which const.i.tute an infringement of the right. The present statute (sec. 4952) defines the right to consist in the sole liberty to do certain things. The bill (sec. 1) defines the right to be the sole and exclusive right to do certain things, and it specifies those things; but its specifications are in terms very different from those in the present statute.

The present statute (secs. 4965 and 4966) specifies certain acts which are to be deemed an infringement. The bill, having defined the right of the copyright proprietor as the exclusive right to do certain things, defines an infringement to consist in the doing or causing to be done without his consent of any of those things, the right to do or authorize which is exclusively reserved to him. It contents itself with this, adding only the one specification that "any reproduction,"

without his consent, "of any work or material part of any work in which [his] copyright is subsisting," shall be an infringement.

So as to the person who may obtain copyright: The present statute mentions the "author, inventor, designer, or proprietor," and elsewhere the "originator." The bill rests with the term used in the Const.i.tution, "author," adding only "proprietor," which is not merely in the existing statutes, but has been construed in a series of judicial decisions.

Copyright consists of the exclusive right within a defined period to do certain things with certain subject-matter and to prevent other people from doing these things. The fundamental provisions of the copyright law are therefore these four:

What is the subject-matter?

What are the acts?

How may the exclusive right to do them be secured?

And who may secure it?

Upon the third point, "How may the right be secured?" the bill modifies substantially the existing requirements of law. These make deposit and registration in the copyright office a condition precedent. They require the deposit to be at least coincident with the publication, and they stipulate that failure to comply precisely with this requirement shall avoid the copyright ab initio.

The bill, in section 9, initiates the copyright from the date of the publication of the work, with the notice of copyright affixed. So, in effect, does the present law initiate the copyright from that date, provided the deposit and registration be effected then; but by the bill the publication with notice not merely initiates the copyright, it "secures" it. That is the expression used in the bill.

Deposit and registration in the copyright office are still requisite, but a reasonable period after publication is allowed for them. The period is thirty days, and in the case of error or omission may be even an entire year, but with the proviso that after the thirty days no action for infringement may be brought until these requirements have been complied with. The right is to be exclusive for a limited period.

This period is now twenty-eight years, with a possible renewal for fourteen years--a maximum, therefore, of forty-two years. The bill abolishes renewals and provides for three terms, according to the subject-matter. The shortest is twenty-eight years for labels and prints relating to articles of manufacture heretofore registered in the Patent Office, but which the bill proposes to be taken over into the copyright office. The second term, fifty years, is substantially identical with the present possible maximum of forty-two. It applies to some original and to all derivative works. It would probably cover the majority of copyright entries during any particular period--the majority in number, I do not say in importance. The longer term--the life of the author and fifty years after his death--applies only to original works, but applies to most of those.

As to the merit of these terms, Mr. Chairman, and their necessity you will hear discussion. I merely call your attention to them with, however, these suggestions, which I feel in duty bound to communicate, because they have been so insistently urged upon us:

First, that the present term, a maximum of forty-two years (and that a conditional maximum), does not insure to the author his copyright even throughout his own life, and it makes no certain provision for his immediate family after his death. These are admittedly grave defects, and they are perhaps not met by the fact--it is a fact--that at present the privilege of renewal is taken advantage of by only a small percentage of the authors or their families.

The second is, that a term as long as life and fifty years exists in fifteen countries, including France; that England, with the minimum term of life and seven years proposes a term of life and thirty years, and that Germany, with a term of life and thirty years, is discussing--informally thus far, but is discussing a term of life and fifty years.

The third suggestion is that a common disposition to question a long term for copyright, on the ground that a short term suffices for patents, is based upon false a.n.a.logy. Literary and artistic productions and useful inventions may be equally the creations of the mind, and they are coupled in the Const.i.tution; but they are coupled, it is pointed out, only as deserving protection. Their character, and the duration of the protection required by each, may be very different. It is alleged to be very different. The monopoly is different; the returns to the creator are different, and the interests of the public are different in the two cases. The monopoly by patent in an invention is a complete monopoly of the idea. The monopoly by copyright in a literary or artistic work is a monopoly merely of the particular expression of the idea. The inventor's exclusive control of his idea, it is said, may bar innumerable other inventions, applications of his idea, of importance to the public, while the author's or artist's exclusive control of his particular expression bars no one except the mere reproducer. The returns to an inventor are apt to be quick; the returns to an author are apt to be slow, and the slower in proportion to the serious character of his book, if a book. The returns to a successful inventor are apt to be large; the returns to even a successful author or artist are not apt to be more than moderate.

Then the idea, it is said, covered by an invention or discovery, may concern the essential welfare, even the lives, of the community, and should be freely available at the earliest possible moment not unjust to the creator of it. Now, it is remarked that no particular book, at least none currently copyrighted to-day, can be said to be essential to the welfare or protection of the community. Many a man's pleasure may be enhanced by it, some men's profit; but no man's essential welfare depends upon it, and no man's life, save, perhaps, the author's own.

I communicate those suggestions as having been pressed upon us.

In no respect are the present statutes alleged to be less satisfactory than in their provisions for the protection of the right, and redress to the copyright proprietor for invasion of it. One inconvenience is that they provide a different cla.s.s of remedies and recoveries for different subject-matter; another is that they seem to confuse the duty of the Government to punish a deliberate infringement as it would punish any other theft with the right of the copyright proprietor for compensation for his particular losses. The bill attempts to provide uniform remedies, and it divorces the civil action from the criminal.

As the memorandum states it, "Penalties imposed for acts in the nature of misdemeanors are no longer to be shared by the United States with a person suing for them;" nor "are sums recovered by way of compensation to the copyright proprietor to be shared by him with the United States." Nor is his right to recover such sums to be imperiled by the necessity of proving that the defendant has committed an offense against the community as well as profited at his expense.

The deliberate theft of a dramatic or musical composition by the willful performance of it for profit, without the a.s.sent of the owner, author, or copyright proprietor, is now by law a misdemeanor. The conference could not see why this provision should not apply to any infringement which is both willful and for profit, and section 25 of the bill extends it to all such.

The existing provision (sec. 4966, Rev. Stat.) which provides remedies and penalties for infringement of dramatic and musical copyrights, is of great moment to the dramatists and composers; and now that it is merged in the general provisions of this and other sections of the bill they are in great apprehension lest it may suffer accident, if accident befall these. To guard against this the general repealing clause of the bill excepts and continues in force section 4966 of the Revised Statutes, but it does so with the intention that this exception shall be dropped in case the general provisions stand.

The reason or merit of these and other provisions of the bill will at the proper time have to be made clear to you, if challenged. That is no part of my present duty, which is merely to introduce the bill to your attention, with some explanation as to how it came to be, and some note as to its leading features. But I except two matters, and I do so to avoid misapprehension; and I feel free to do so because both involve the administration of the copyright office. One is as to fees. The impression has gone out that the fee for registration is to be doubled. The fee for registration is now 50 cents, but 50 cents additional is charged for a certificate when furnished. The proposed fee is $1, but this is to include the certificate, which is to be furnished in all cases and as a matter of course. It ought to be furnished, in the opinion of the office, and no claimant of copyright ought to rest easy without it. It is the evidence of registration and deposit--indispensable formalities, even hereafter--and it is now to be prima facie evidence in a court of law of the facts which it sets forth.

If the copyright is worth the 50 cents for the registration, it seems certainly worth the additional 50 cents for the certificate. But I note here that objections are to be raised to the provision for fees, and particularly as working hards.h.i.+ps in some cases not made exceptions, as the case of a series of studio photographs registered under one t.i.tle at the same time is made an exception. You will have some suggestions as to cases in which the exaction of this fee, without some special modification in certain cases, would work an undue hards.h.i.+p.

On the other hand, the bill tends to reduce the aggregate fees payable by any one publisher and the aggregate receipts of the office by enabling a number of volumes of the same work, and in the case of photographs, prints, and like articles, an entire series, if registered at the same time, to be registered for a single fee.

The other matter is that of copyright deposits. The volume of these is now prodigious. During the last year alone the articles deposited exceeded 200,000 in number. A large proportion of these are of great value to the Library and are drawn up into it. The rest remain in the cellar. The acc.u.mulations in the cellar now number a million and a half items. Many of these would be useful in other Government libraries; for instance, medical books in the library of the Surgeon-General's Office.

Some of them might be useful in exchange with other libraries. A few might have value in exchange with dealers. The remainder are a heavy charge upon the Government for storage and care, without any corresponding benefit. They ought to be returned to the copyright proprietors if they want them, or, if not wanted, destroyed. Such dispositions are, I believe, already within the authority of law; but it is fair that they should be expressed. The bill (secs. 58 and 59) definitely expresses them. I ask your attention to them in due course.

They have been accepted by the conferences, and therefore by the interests outside of the Government most nearly concerned with their operation. But they may awaken some apprehension elsewhere because of a quite common misunderstanding of the significance of the deposit and its relation to the copyright protection.

The original purpose of such deposits was the enrichment of the Library. This is clear from their history, both in this country and abroad. They were made a condition of securing copyright, but they had no continuing relation to the copyright once secured. In England, for instance, the copies required (now five) are to be for the use of the libraries--five libraries--no one of which is the office of registration for copyrights. The earliest act in this country was that of Ma.s.sachusetts, in 1783, which exacted a copy as a gift to the library of the University of Cambridge, Harvard University, "for the use of said university," which was not the office of copyright. The earliest act providing for deposit in the Library of Congress, that of 1846, provided that the copyright proprietor should give one copy of the book to this Library, and at the same time it provided that he should give one copy to the library of the Smithsonian for the use of that library.

In 1867 the library of the Smithsonian became a part of the Library of Congress. The act of 1870 provided two copies, both to be addressed to the Library of Congress. But by that same act of 1870 the Library of Congress became the office of registration for copyright; and from that time, and because the failure to deposit not later than the date of publication actually voided the copyright, an impression has grown up that the articles deposited are an integral part of the record of registration, and have a peculiar sanct.i.ty as such. The fact of the deposit has been and will be an integral part of the record, and in times past this could most readily be proved by the copies themselves, the law providing neither for a certificate to the claimant admitting the receipt of the deposit nor an entry in the official record showing it. But hereafter the fact of deposit will be proved by the certificate itself.

There is an impression--a very natural one, too--that the copies deposited are necessary evidence of the thing copyrighted, and essential as such in litigation. Now, during the past thirty-six years the copyright office has record or memory of only four cases in which articles deposited have been summoned into court, and an authority on copyright litigations remarks that in three of these he is quite certain that the reason was a fanciful one, and in the fourth he did not see any necessity for it.

For the matter of that, however, there is little prospect that any article of sufficient importance to be a subject of litigation would be deliberately destroyed, or would fail to be drawn into the permanent collections of the Library--at least one copy of it.

Mr. Chairman, having indicated something of what the bill is, let me say a word as to what it is not, in intention.

First. It is not an attempt to codify the common law. The conservative bar was very fearful that it would be. Even more than the present statutes, it leaves to the courts to determine the meaning and extent of terms already construed by the courts. It does this even in cases where the temptation to define was considerable and where foreign statutes attempt a definition. For instance, Who is an author? What is publication in the case of works not reproduced in copies for sale?

What is fair use? Now, many such definitions were proposed and lengthily discussed, and omitted because they did not stand the test of the best expert opinion of the most conservative advisers of the conference, particularly the committees of the bar a.s.sociations.

Second. The bill does not, in intention, attempt to regulate relations between authors and publishers which are or may be matter of private contract.

Third. It is not an attempt at abstract and theoretic perfection, nor is it an attempt to transplant to this country theoretic or what might be charged to be sentimental provisions of foreign law. It tries to be a bill possible for this country at this time and under conditions local here. It contains, therefore, some provisions which are, in our judgment, neither theoretically sound nor according to modern usage abroad nor satisfactory to particular partic.i.p.ants in the conference.

These are a compromise between principle and expediency or between one interest and another at the conference, between which we could not decide for either extreme--I mean decide in the sense of bringing before you a suggestion in this particular form. We had not any decision in any other sense; we were not a commission. The bill is a compromise. I doubt if there is a single partic.i.p.ant in the conferences whom it satisfies in every particular.

Fourth--and I feel really, Mr. Chairman, in justice to the conferences, after their year of labor, impelled to say this--the bill is not a mere congeries of provisions proposed by a selfish group, each member of which was considering solely his own particular interest. It contains, of course, some provisions which concern only particular interests--for instance, the provision as to sound records, or that as to affidavit of domestic manufacturers. But these are easily distinguishable; we suppose and we should hope that they would be distinguished, and particularly so if, as we know to be true in the case of sound records, there is to be definite objection before you against the bill as it stands; and we should hope that that objection, with the arguments of those with whom the proposal originated particularly, should be set aside for special discussion distinct from the general discussion on the bill as a whole. I say there are provisions which concern particular interests, of course, particularly; but these we should hope would be distinguished in your consideration of it.

The bill is the result of a sincere attempt, as we have seen it, to frame a reasonable general statute. I say "sincere," and I feel the right to say it because I followed the conferences closely, and had the best opportunity to judge of their temper and disposition. If some of the interests were selfish in one direction, they were met by the selfishness of others in another direction, and both were under criticism from the general advisors and under the influence of the main body. And neither such interests--and I am speaking of history now, of course--neither such interests nor any other partic.i.p.ant in the conference initiated the conference, nor determined its composition, nor controlled its proceedings. The conference was initiated by the Copyright Office at your suggestion, Mr. Chairman. It was composed of organizations invited by the office, and it was theoretically held in the office. The Librarian presided at it, and except for the purpose of some formal resolutions it never organized or in any other way pa.s.sed out of the control of the office.

If the bill reveals some selfishness, it is perhaps condonable. It is the selfishness of men trying to protect their own property; for of course, as I have emphasized, the interests that were especially invited to the conferences were those that are concerned in an affirmative way with the protection of the right. The conferences were not generally representative--completely representative--in other respects. The bill has that purpose--that is, for the protection particularly of the property. It comes before you for consideration on the ground that it goes too far. It does not create, of course, a new species of property; it merely recognizes a species of property created by the Const.i.tution and already recognized by statute. Its purpose is simply to secure to the man who has created it a species of property which peculiarly requires the protection of law, because the very act which makes it remunerative to him lays it open to expropriation--that is, the act of publication--and seems peculiarly ent.i.tled to the protection of the law, because it is that act, and that alone, which makes it of any use to the public; and of course it secures this protection--not permanently, but only against untimely expropriation.

It may be said that the public was not represented at the conferences.

The public in this matter would, I suppose, belong to one of four cla.s.ses: In the first place, the producer, the creator, with his publisher and manufacturer; or, second, one who is to enjoy the work as a consumer; or, third, one who wishes to utilize the work in some other work, or to reproduce and market it for his own benefit, when this can be done innocently; or, fourth, the student and critic of the rights and obligations of property, and of the regulation of this by law.

There may be a fifth cla.s.s, the mere pirate. He was not invited to the conferences, and I suppose he would not be to your hearings. But the innocent reproducer was not unrepresented at the conferences or in the discussions. In fact, most of the producers were also reproducers, and quite insistent upon their convenience as such. The original producers, publishers, and manufacturers were there as of right, and the student and critic through their interest and public spirit. As for the consumers, two considerable groups were actually represented, and more would have been if organizations could have been found to represent them. Others also there spoke for them.

But as I understand it, it is in the interest of the consumer just because it is in the interest of the producer that copyright laws were originally designed and were called for by the Const.i.tution; and if this proposed one fails fairly to regard that interest of the consumer, its defects will surely be brought to your attention by the third great estate which is jealous of those interests--the newspaper and periodical press; for the bill is now before the public.

Finally, Mr. Chairman, notwithstanding the labor put upon it, the bill is doubtless still imperfect in expressing its intentions; and I have no doubt that while it is under consideration those especially concerned will ask leave to submit to you some amendments of phraseology. I understand that any such amendments proposed by partic.i.p.ants in the conferences will be communicated first to the copyright office, so that they may be formulated by the register for your convenient consideration; and the office will gladly do the same for any that may reach it from any other source.

The relation of the office to this project has been peculiar, Mr.

Chairman, and that alone has excused me in introducing the bill to you.