Arguments before the Committee on Patents of the House of Representatives Part 53

Mr. PUTNAM. I can say, Senator, It is because they have had the benefit of such lucid criticism at such an early stage. I can say that it was not expected by us that anyone would take up this bill with such a penetrating intelligence as Mr. Walker has shown, within a week after its introduction into Congress.

Mr. WALKER. And I wish to say to the Senator from Utah, if I may be permitted, that while I have criticized this bill in plain terms, the framework of the bill as a whole is very scientific, and in one day or two days I could so amend the bill as to entirely remove all my objections and still preserve the substance of the scheme which Mr.

Putnam has put upon paper.

Senator SMOOT. I have been very much interested, Mr. Walker, in your statement.

Mr. SULZER. Mr. Chairman, I agree with the Senator from Utah; I have been very much interested in what Mr. Walker has said, and I was going to make this suggestion: That he be allowed to file a brief with the committee, which will be printed in the record as a part of the record.

The CHAIRMAN. That was understood the other day.

Mr. WALKER. Thank you very much.

Mr. SULZER. Mr. Chairman, I would be glad to have the committee hear now Mr. Nathan Burkan, who represents the publishers and composers of music.

Mr. CURRIER. Mr. Sulzer, two gentlemen who are now present have come all the way from Chicago to address the committee and have just this moment gotten here.

The CHAIRMAN. We will hear Mr. Burkan after them.

Mr. CURRIER. We will hear him later.

Mr. PUTNAM. Mr. Chairman, you have requested me to remind the gentlemen present that it is the desire of the committee to have a register of the names of all who have attended these hearings, and the capacity (if they desire to indicate it) in which they have been here.

Some of you who were not here before will find opportunity to register at the door, and I would suggest that as the register was not opened until Thursday, any of you who know of any persons present on Wednesday who had left by Thursday, and whose names therefore did not appear upon the register, will please pa.s.s a memorandum of their names in to us.

Mr. Chairman, I have a memorandum handed in which I offer to the committee on behalf of Mr. Charles W. Ames, calling attention to a misunderstanding, as he has believed, of two sections, section 3 and section 19, and another communication simply filing objections to certain sections, 13, 18, 32, 33, and 34, and desiring an opportunity later to be heard.

The CHAIRMAN. They will go in the record.

(The papers above referred to, together with a letter from Mr. Leo Feist, were directed to be made part of the record, and are as follows:)

WAs.h.i.+NGTON, _D.C._, _June 9, 1906_.

Mr. HERBERT PUTNAM, _Librarian of Congress_.

DEAR SIR: I wish to file with the committee at this time objections to sections 13, 18, 32, 33, and 34 of the copyright bill. I will indicate briefly the grounds of my objection and will make further argument on them at some future time if the committee should desire.

Yours, respectfully,

CHARLES W. AMES.

_Section 13, page 9._--I have always objected to the proposed affidavits of domestic manufacture. I believe there is no real need for it and that it imposes an unnecessary burden on the copyright proprietor and the copyright office. It has been demanded only by the Typographical Union, which claims to have private reasons for believing that the requirement of domestic manufacture is being frequently violated by publishers. The records of the copyright office do not show such violations, nor have I ever heard of any being shown in the courts. The publishers generally throughout the country regard this requirement as an imposition and an outrage--that on the suspicion of the Typographical Union they should be required to swear that they were not violating the law whenever they take out copyright. The publishers would have questioned the propriety of this measure when it was pending before the last Congress if opportunity had been offered, and strenuous opposition would have been made to the pa.s.sage of the bill.

At the first conference last year, the representatives of the a.s.sociation of Publishers, in a spirit of conciliation, agreed with the representatives of the Typographical Union that they would not oppose the requirement of an affidavit. As a member of that a.s.sociation of Publishers. I shall not now oppose the affidavit section as a whole, which requires me to swear five hundred times a year that I have done something, failure to do which would have invalidated many thousands of dollars' worth of copyright property.

But I do object earnestly and emphatically to the final paragraph of section 13 (lines 21-25, p. 9), requiring the statement in the affidavit of the particular establishment in which the work has been done. This fact is wholly irrelevant to the purpose of the affidavit and has no bearing on the requirements of the copyright law. It is purely a private business matter. In case the affidavit is challenged (as it would be in only an infinitesimal proportion of registrations) and proof of domestic manufacture is required in any action, of course the establishment would be readily shown.

Copyright proprietors should not be required to disclose it otherwise, satisfying the curiosity of business rivals and others.

It seems also an unnecessary insult to the publishers to provide special penalties for false affidavits. Will not the ordinary penalties for the crime of perjury be sufficient to cover all cases where publishers, in addition to jeopardizing their property rights by violating the provision for domestic manufacture, swear falsely in the premises?

I believe that Mr. Sullivan, in behalf of the Typographical Union, stated at the last conference that the union was not disposed to insist on the specification of the establishment in the affidavit if it should appear that this fact was unnecessary and irrelevant to the purpose of the affidavit. I hope that the union will make no opposition to the elimination of this provision, which is obnoxious to the publishers. By so doing they will at least minimize the opposition of the publishers to the affidavit provision as a whole. There are very many publishers throughout the country who are not members of the a.s.sociation referred to, and will not be governed by the agreement made at the conference.

The date of publication, if given in the affidavit, might serve for convenience as furnis.h.i.+ng an essential fact to be a part of the record covered by the Librarian's certificate.

_Section 18, page 14._--This section relates to the term of copyright. In fixing the term I think due consideration has never been given to the fact that a vast majority of copyrights become commercially worthless after a very few years. Thus the records of the copyright office show that last year but 2.7 per cent of the copyrights completing their original term of twenty-eight years were thought by the authors of sufficient value to renew them for the additional fourteen years under the comparatively simple provisions of the present law.

It is safe to say that not more than 5 per cent of all the copyrights have any commercial value after twenty-eight years. It would seem feasible to provide for the extension of the property rights in these valuable literary or artistic properties without conferring undeserved or undesired extensions of term in hundreds of thousands of copyrights of no pecuniary value to the owners. On the other hand, there is some intrinsic value to the public in a portion of the copyrighted material after it has lost all pecuniary value to the author or his a.s.signee.

I believe that the great majority of copyrights should fall into the public domain at a definite and easily ascertainable time. I hold, therefore, that the ordinary copyright term should be no longer than the twenty-eight years as fixed at present. But the few valuable copyrights could be secured for a much longer term by a simple and easy arrangement for renewal, as by requiring merely the filing of a notice of the desire to extend and allowing the author or his heirs to file such notice; or, in case there has been an outright a.s.signment, permitting the author and a.s.signee or licensee under royalty to join as provided in section 32 of the present draft.

Some provision should also be made for the renewal of valuable proprietary copyrights of the sort enumerated in subsection _(b)_ of section 18.

_Sections 32-33, pages 26-27._--My most serious and strenuous objections are to this section 32, regarding actions arising under the copyright law, and especially the second paragraph, providing that actions may be brought and jurisdiction secured in any district of the United States where violation of any provision of this act has occurred. This means that any copyright proprietor or any publisher may be brought into any district in the United States or every district simultaneously in the case of many articles sold generally throughout the country. And it therefore concerns very nearly every person interested in the copyright law.

Every copyright proprietor may be defendant in a suit as well as complainant. Suits may be brought in good faith or for malicious reasons; for the real protection of property or for hara.s.sing business rivals. They may be well founded or groundless, honest or frivolous. Now, speaking as the proprietor of a large number of copyrights and a great deal of valuable copyright property which I am anxious to protect against infringement, I would much prefer to forego the advantages offered to complainants under this section rather than run the risk of the infinite vexation which might be caused my company as defendant in malicious and frivolous suits brought in foreign jurisdictions chiefly for purposes of blackmail.

I see no good reason why copyright proprietors should have facilities for the use of the Federal courts not accorded to any other cla.s.s of suitors. It is true that certain cla.s.ses of copyright property may require special provisions for their protection, but it should be noted that section 966 of the Revised Statutes is by this bill retained (see sec. 64), and would therefore still protect dramatists and musical people in the peculiar rights which they now have under the present law.

The penal provisions of this bill are severe and even harsh, including misdemeanor clauses with fines and forfeitures and even imprisonment. On the other hand, the law is full of novel provisions. It will be, at best, years before these can be judicially construed so that they may be generally understood.

Meanwhile, everyone concerned will find many doubtful points and open questions on which legal advice will vary, and can in no case be conclusive. To subject authors and publishers to the danger of being peremptorily summoned to defend an action in a distant district for some supposed violation of some provision, "any provision of this act," however insignificant, with the issuance of ex parte injunctions operative throughout the whole country, with possible "impounding" of important and valuable publications for an indefinite period of time (during the pendency of the suit, see sec. 23, p. 18), a publisher in New York might sue his neighbor across the street in any distant district, possibly Alaska or the Philippine Islands; a rich and powerful house might crush a feeble compet.i.tor by forcing him to defend suits brought simultaneously in a hundred jurisdictions. These possibilities may well terrorize all persons interested in copyrightable property of any description.

Finally, I say from long experience that it is a mistaken kindness to make copyright litigation easy. The protection of the copyright law is chiefly moral. Remedies for actual wrongs committed are in most cases illusory. A copyright suit should never be brought except for the most serious reasons and to protect large business interests.

I believe, therefore, that section 32 should be eliminated altogether from this bill, unless it is thought necessary to retain the first paragraph; and I suppose section 33 would go with it. If this were done, perhaps section 4966 of the Revised Statutes should be incorporated in the new law at this point and reenacted for the sake of completeness, if the committee thinks that it should be retained.

_Section 34, page 28._--The limitation of actions in the present law applies only to actions for penalties and forfeitures. I do not think it should be applied, as in this section 34, to all actions; if it should be so applied the term should be at least six years (which is the rule with patents, I understand). The statutes should show clearly that the time runs from the date of the discovery of infringement by the complainant. In these days of an ever-increasing mult.i.tude of publications, the copyright proprietor should not be required to examine everything which is issued to see whether his works have possibly been pirated; nor should he be debarred from seeking a remedy if knowledge of piracy should come to him long after the offense has been committed.

Unfairness is not always shown on the face of an infringing work, and direct evidence is often required to prove this even to the injured proprietor.

[Memorandum by Charles W. Ames.]

JUNE 9, 1906.

As a constant attendant at the last two conferences, I venture to offer a few words in explanation of two sections of this bill, which, I think, have been misunderstood by some of the gentlemen who have appeared before the committee.

Section 3 has been supposed to have some particular reference to and bearing on now existing copyrights taken under the present law. On the contrary, I understand this section to be general and permanent in its character, the purpose of the last three lines being to specifically protect all copyrighted matter for its proper term and no longer, when reproduced in whole or in part, under license or otherwise, in connection with a later copyrighted work. This section is very important as definitely clearing up for the future a question which has been frequently raised in connection with the present law.

Section 19, on the other hand, relates merely to now existing copyrights. It has the laudable purpose of extending the benefits of the new law to authors of valuable literary and artistic works copyrighted under the present law. The provisions at the end of the section are designed to secure such new privileges to the authors without interfering with the vested rights and investments of their publishers. After such authors have enjoyed the full forty-two years of monopoly granted them under existing law, they may secure such additional term as is to be accorded to authors under the new law; but if under the contracts which they have already made they have conferred rights upon their publishers as a.s.signees or licensees, then they must have the publishers join with them in their request for the extension.

It is questionable whether, in the absence of such provision, the new privileges could be lawfully conferred upon authors who have a.s.signed their rights without impairment of existing contracts.

For example, when an author has sold his copyright altogether, the publisher has combined with the literary property investment in plates, stock, and good will, which should not be taken from him at the expiration of the copyright term. In such cases, he could, under the provisions of the present section, secure an extension of exclusive rights only with the help of the author with proper compensation, and the author could secure extension only by fair consideration of the publisher's rights. If they fail to agree, they are left just where they expected to be when they made their contract under the terms of the present law.

As to the licensee for publication under royalty, I see no objection to the addition of such a provision as was proposed by Mr. Ogilvie, to protect the author against unfair treatment in respect to future royalties.

WAs.h.i.+NGTON, D.C., _June 8, 1906_.

The CHAIRMAN OF THE JOINT COMMITTEE ON PATENTS OF THE SENATE AND HOUSE OF REPRESENTATIVES.