Chapter I: Front Matter

ARGUMENTS BEFORE THE COMMITTEE ON PATENTS

OF THE HOUSE OF REPRESENTATIVES,

CONJOINTLY WITH THE SENATE COMMITTEE ON PATENTS,

ON H.R. 19853,

TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT.

JUNE 6, 7, 8, AND 9, 1906.

COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES,

FIFTY-NINTH CONGRESS.

FRANK D. CURRIER, NEW HAMPSHIRE, _Chairman_.
SOLOMON R. DRESSER, PENNSYLVANIA.
JOSEPH M. DIXON, MONTANA.
EDWARD H. HINSHAW, NEBRASKA.
ROBERT W. BONYNGE, COLORADO.
WILLIAM W. CAMPBELL, OHIO.
ANDREW J. BARCHFELD, PENNSYLVANIA.
JOHN C. CHANEY, INDIANA.
CHARLES McGAVIN, ILLINOIS.
WILLIAM SULZER, NEW YORK.
GEORGE S. LEGARE, SOUTH CAROLINA.
EDWIN Y. WEBB, NORTH CAROLINA.
ROBERT G. SOUTHALL, VIRGINIA.
JOHN GILL, JR., MARYLAND.
EDWARD A. BARNEY, _Clerk_.

WASHINGTON: GOVERNMENT PRINTING OFFICE. 1906.

Transcriber's Note: Printer's inconsistencies in spelling, punctuation and hyphenation have been retained. In this etext a caret (^) is used to indicate that the character following it is printed as superscript text.

ARGUMENTS ON H.R. 19853, TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT.

COMMITTEE ON PATENTS,

HOUSE OF REPRESENTATIVES,

_Wednesday, June 6, 1906_.

The committee met at 10 o'clock a.m.; at the Senate reading room, Library of Congress, conjointly with the Senate Committee on Patents.

Present, Senators Kittredge (chairman), Clapp, Smoot, Foster, and Latimer; Representatives Currier (chairman), Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb.

The CHAIRMAN. We are met to consider Senate bill 6330, relative to the copyright law. We would like to hear first from Mr. Putnam regarding the history of the proposed legislation.

STATEMENT OF HERBERT PUTNAM, ESQ., LIBRARIAN OF CONGRESS.

Mr. PUTNAM. Mr. Chairman and gentlemen of the committee, the origin of this bill is indicated in the message of the President to Congress last December. The passage is brief; let me read it:

Our copyright laws urgently need revision. They are imperfect in
definition, confused and inconsistent in expression; they omit
provision for many articles which, under modern reproductive
processes, are entitled to protection; they impose hardships upon
the copyright proprietor which are not essential to the fair
protection of the public; they are difficult for the courts to
interpret and impossible for the copyright office to administer
with satisfaction to the public. Attempts to improve them by
amendment have been frequent, no less than twelve acts for the
purpose having been passed since the Revised Statutes. To perfect
them by further amendment seems impracticable. A complete revision
of them is essential. Such a revision, to meet modern conditions,
has been found necessary in Germany, Austria, Sweden, and other
foreign countries, and bills embodying it are pending in England
and the Australian colonies. It has been urged here, and proposals
for a commission to undertake it have, from time to time, been
pressed upon the Congress.

The inconveniences of the present conditions being so great an
attempt to frame appropriate legislation has been made by the
Copyright Office, which has called conferences of the various
interests especially and practically concerned with the operation
of the copyright laws. It has secured from them suggestions as to
the changes necessary; it has added from its own experience and
investigation, and it has drafted a bill which embodies such of
these changes and additions as, after full discussion and expert
criticism, appeared to be sound and safe. In form this bill would
replace the existing insufficient and inconsistent laws by one
general copyright statute. It will be presented to the Congress at
the coming session. It deserves prompt consideration.

So far the message. It did not contain what was the fact as to the origin of this project, that it did originate in an informal suggestion on the part of the chairman of this committee.

The conferences to which it refers were not open, public meetings; they were not conventions; they were conferences, and conferences of organizations--that is to say, associations representing a group of interests; and those organizations were specially invited, additions being made to the list later as suggestions were made of others that should be added.

The organizations selected were the most representative organizations that we could think of or that were brought to our attention as having practical concern in the amelioration of the law, but especially, of course, those concerned in an affirmative way--that is to say, in the protection of the right. They were nearly thirty in number. The list of them and their representatives is before you.

(The list referred to was, by direction of the committee, made a part of the record, and is as follows:)

_List of associations invited to take part and the delegates
nominated to be present at the conference on copyright, together
with other participants._

AUTHORS.

American (Authors') Copyright League: Edmund Clarence Stedman^1,^2,
president; Richard R. Bowker, vice president; Robert Underwood
Johnson^1,^2, secretary; Edmund Munroe Smith, acting secretary (not
present).

National Institute of Arts and Letters: Edmund Clarence
Stedman^1,^2, president; Brander Matthews^1,^2.

DRAMATISTS AND PLAYWRIGHTS.

American Dramatists Club: Bronson Howard, president; Joseph I. C.
Clarke^1, first vice president; Harry P. Mawson^1,^2, chairman
committee on legislation; Joseph R. Grismer^1, committee on
legislation; Charles Klein^3.

Association of Theatre Managers of Greater New York: Charles
Burnham^1, first vice president; Henry B. Harris^1, secretary.

ARTISTS: PAINTERS, SCULPTORS, ARCHITECTS.

American Institute of Architects: Glenn Brown, secretary.

Architectural League of America: D. Everett Waid^1,^2.

National Academy of Design: Frank D. Millet.

National Sculpture Society: Daniel Chester French^3, president;
Karl Bitter^2,^3, vice president.

Society of American Artists: John La Farge^1, president; John W.
Alexander^1,^2.

COMPOSERS.

Manuscript Society: Miss Laura Sedgwick Collins^1 (charter member),
F. L. Sealy^2.

PUBLISHERS.

American Publishers' Copyright League: William W. Appleton,
president; George Haven Putnam^2,^3, secretary; Charles
Scribner^1,^2, treasurer; Stephen H. Olin^2,^3, counsel.

Association of American Directory Publishers: W. H. Lee^2,^3,
president; W. H. Bates, secretary; Alfred Lucking^3, counsel;
Everett S. Geer^3, president Hartford Printing Company; William E.
Murdock^3, trustee of the Association of American Directory
Publishers; Ralph L. Polk^3, trustee of the Association of American
Directory Publishers; S. T. Leet^3.

PUBLISHERS OF NEWSPAPERS AND MAGAZINES.

American Newspaper Publishers' Association: Don C. Seitz^1,^2,
acting chairman copyright committee; John Stewart Bryan^1,^2,
copyright committee; Louis M. Duvall^1,^2, copyright committee;
Thos. J. Walsh^2, at the request of Mr. Seitz.

Periodical Publishers' Association of America: Charles
Scribner^1,^2.

PUBLISHERS OF ARTISTIC REPRODUCTIONS: LITHOGRAPHERS, PHOTOGRAPHERS.

National Association of Photoengravers: B. W. Wilson, jr.^2

Photographers' Copyright League of America: B. J. Falk, president;
Pirie MacDonald; A. B. Browne^3, counsel.

Print Publishers' Association of America: W. A. Livingstone,
president; Benjamin Curtis^3, secretary; George L. Canfield^3,
counsel.

Reproductive Arts Copyright League (Lithographers'
Association--East): Robert M. Donaldson, president: Edmund B.
Osborne^2, vice-president; A. Beverly Smith, secretary; Fanueil D.
S. Bethune^2,^3, counsel.

PUBLISHERS OF MUSIC.

Music Publishers' Association of the United States: J. F.
Bowers^2,^3, president; Charles B. Bayly^3, secretary; George W.
Furniss, chairman copyright committee; Walter M. Bacon, of
copyright committee; Nathan Burkan^2,^3, counsel; A. R. Serven,^3
counsel; Leo Feist^3; Isidore Witmark^3; R. L. Thomæ,^2,^3 (Victor
Talking Machine Company, of Philadelphia).

PRINTERS AND LITHOGRAPHERS.

United Typothetæ of America: Isaac H. Blanchard^1, of executive
committee; Chas. W. Ames^2,^3.

International Typographical Union: J. J. Sullivan, chairman I. T.
U. copyright committee; P. H. McCormick, president, and George J.
Jackson, organizer, of New York Typographical Union No. 6.

Central Lithographic Trades Council: W. A. Coakley^3.

EDUCATIONAL INSTITUTIONS.

National Educational Association: George S. Davis^1, associate city
superintendent of schools; Claude G. Leland^2, librarian board of
education of New York.

PUBLIC LIBRARIES.

American Library Association: Frank P. Hill, president; Arthur E.
Bostwick.

BAR ASSOCIATIONS.

American Bar Association--Advisory committee: Arthur Steuart^1,^3,
chairman; Edmund Wetmore^2, Frank F. Reed (not present).

Association of the Bar of the City of New York--Advisory committee:
Paul Fuller^3, chairman; William G. Choate, John E. Parsons, John
L. Cadwalader, Edmund Wetmore^2, Henry Galbraith Ward, Arthur H.
Masten. (Of this committee, appointed after the second conference,
only Mr. Fuller was present.)

MISCELLANEOUS.

International Advertising Association: Will Phillip Hooper^1,^2;
James L. Steuart^2, counsel.

The Sphinx Club: Will Phillip Hooper^1,^2.

OTHERS PRESENT, BUT NOT FORMALLY PARTICIPATING.

Samuel J. Elder, of Boston; André Lesourd^3, of New York; A. Bell
Malcomson^3, of New York; Ansley Wilcox^3, of Buffalo; A. W.
Elson^2,^3, of Boston; Gen. Eugene Griffin^3, of New York; Charles
H. Sergel^3, of Chicago.

Librarian of Congress, Herbert Putnam.

Register of Copyrights, Thorvald Solberg.

Commissioner of Patents, Frederick I. Allen (was not present, but
submitted written suggestions).

Department of Justice, Henry M. Hoyt^3, Solicitor-General (present,
but not formally participating); William J. Hughes^2,^3, of the
Solicitor-General's Office (present, but not formally
participating).

Treasury Department, Charles P. Montgomery, of the Customs
Division.

NOTE.--Persons marked ^1,^2, or ^3 were present only at the
sessions thus indicated. The absence of a mark following a name
indicates attendance at all three sessions.

Mr. PUTNAM. These men are the writers of books, the writers of plays, the composers of music, the architects, painters and sculptors, the photographers and photoengravers, the publishers of books, newspapers, periodicals, music, and prints, and the manufacturers, printers, typographers, and lithographers. The conference included, therefore, those interests that abroad are considered primary in such a matter--that is, the creators of the works which are to be protected and the publishers through whom the property in these becomes effective and remunerative; but it included under each of these genera several species and various subsidiary interests. It included the National Educational Association and the American Library Association as representing to some extent the consumers; and in addition to the legal counsel representing special interests it included two committees of the American Bar Association and of the New York Bar Association of experts upon copyright law, who gave gratuitous service as general advisors to the conference and in the framing of the bill.

Upon questions of importation the conference had the benefit of information and advice from a representative of the Treasury Department, expert in the practice of that Department at ports of entry. The Solicitor-General, whose name appears upon the list, was not a formal participant, but his representative was present throughout as an observer of the proceedings; and if I do not emphasize the aid which he and which the Solicitor-General himself, in later informal criticism and suggestion, rendered, it is only because the practice of his office forbids him to take part in the initiation of legislation; and his assistance in this matter must not be taken as a precedent to his inconvenience.

The conference held three meetings in June and November of last year and in March of this year, but, of course, as a conference it included various minor consultations and much correspondence. At the outset of the meeting last June each organization was invited to state the respects in which it deemed the present law defective or injurious, either to its own interest, or, in its opinion, to the general interest. The second conference had before it a memorandum prepared by the register embodying provisions deemed by the office important for consideration at that stage. The third conference, in March of this year, had before it a revision of this memorandum. The last conference, this third, resulted in the draft of a bill, which was sent to each participant for comment and suggestion, and the bill itself is before you.

We would have no misunderstanding as to what this bill is. It is a bill resulting from the conference, but it is not a conference bill; for the conference did not draw it, nor did it by explicit vote or otherwise determine its precise provisions. It is rather a copyright office bill. The office submits it as embodying what, with the best counsel available, including the conferences, it deems worthy of your consideration, in accordance with your previously expressed desire. In calling the conferences and in submitting the draft it has proceeded upon your suggestion. Apart from the chapter relating to its own administration, it has no direct interest in the bill, except its general interest to secure a general amelioration of the law. It does not offer the bill to you as the unanimous decision of a council of experts, for it contains certain provisions as to which expert opinion as well as substantial interest was divided. It does not offer to you the bill as one that has passed the test of public discussion, for it has only now come before the public. It knows already of objection to certain of its provisions--objection which will be entitled to be heard by your committee; and it is informed by one critic that his objections are sufficient to cover fully one-half of the provisions of the bill.

The bill comes before you with precisely that presumption to which its history entitles it--no less, but no more.

The conference had certain aids prepared in advance by the copyright office, which were embraced in these particular publications, setting forth the present law in this country and all previous enactments in this country--a bibliography, indeed, of all bills introduced into Congress, all amendments of the copyright laws, and the laws in foreign countries so far as they could be epitomized.

The conferences occupied eleven days in all, of twenty-two sessions--two sessions a day. Their labors are evidenced by these four volumes, which are the stenographer's record of the proceedings. The sincerity of their endeavor to secure a result that should be scientific yet conservative, is, perhaps, evidenced by the brevity of the bill. The memorandum of last November contains some 16,000 words; that of March contains some 11,000 words; the bill contains slightly over 8,000 words. I believe that the present group of statutes embodying the existing law will contain somewhat over 4,000 words; and they are alleged to be imperfect and neither systematic nor organic.

The bill attempts to be both. It is, as you see, divided into eight chapters, with some supplementary miscellaneous provisions. I say that it is divided into chapters--that is, recited in the contents of the bill as printed officially and set forth in marginal references in the bill as printed at the Library. These chapters deal with the nature and extent of copyright, the subject-matter of copyright, who may obtain copyright, how to secure it, the duration of it, the protection and the transfer of copyright, and the copyright office.

I have furnished to your committee some analysis of it. That analysis is contained in the printed statement marked "Memorandum," of which there are additional copies here dated June 5, including those before you, containing some slight changes from those sent out to members of your committee. I would ask to have this one, dated on the outside June 5, considered the recent one.

(The memorandum above referred to was, by direction of the committee, made a part of the record, and the same is as follows:)

MEMORANDUM.

A.--_Some leading features._

As the present law consists of but a group of statutes, and
the proposed bill is systematic and organic in form, the changes
which it introduces other than mere abrogations are not easily
explained by mere reference to the existing statutes. Throughout
attempt has been made to substitute general terms for particular
specifications, to provide for a protection as broad as the
Constitution contemplated, and to insure that no specification
shall tend to limit unduly either subject-matter or the protection.
Important respects in which the bill modifies or amplifies existing
law are as follows:

_Nature and extent._--Section 1, like section 9, is fundamental.
The existing law (Rev. Stat., sec. 4952) specifies as the exclusive
right "the sole liberty of printing, reprinting, publishing,
completing, copying, executing, finishing, and vending;" of public
performance or representation; and of dramatization or translation.
The bill omits the specifications "printing, reprinting,
publishing, completing, executing, and finishing," but attempts
others intended to be fully as broad. [Please see sec. 1.] It adds
the right of oral delivery in the case of lectures, and the right
to make, sell, distribute, or let for hire any device, etc.,
especially adapted to reproduce to the ear any musical work, and to
reproduce it to the ear by means of such a device; but these latter
are limited to works hereafter published and copyrighted.

The copyright is to protect "all the copyrightable component parts
of the work copyrighted and any and all reproductions or copies
thereof in whatever form, style, or size."

_Subject-matter of copyright._--A general statement that it is to
include "all the works of an author," leaving the term "author" to
be as broad as the Constitution intended. Certain specifications
follow, but coupled with the proviso that they shall not be held to
limit the subject-matter.

The specifications [sec. 5] substitute, so far as possible, general
terms for particulars. They omit, for instance, the terms
"engravings, cuts, lithographs, painting, chromo, statue, and
statuary." They assume, however, that these will be included under
the more general terms as "prints and pictorial illustrations," 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
(e.g., of applied design, yet not within the province of design
patents) which may properly be entitled to protection under the
copyright law.

Express mention is made of oral lectures, sermons, and addresses;
periodicals, including newspapers; drawings and plastic works of a
scientific or technical character, and new matter contained in new
editions.

Labels and prints relating to articles of manufacture hereafter to
be registered in the copyright office instead of in the Patent
Office.

Additions, revisions, abridgments, dramatizations, translations,
etc., to be regarded as new works. [Sec. 6.]

_Who may obtain copyright._--As broad as heretofore. International
reciprocal arrangements confirmed. The privilege extended to any
foreign author who is living in the United States at the time of
the making and first publication of his work, or first or
contemporaneously publishes here.

_How to secure copyright._--The copyright is to be "secured" by
publication of the work with the notice affixed. This section, 9,
with section 14, is fundamental. Sections 10, 11, and 13 prescribe
subsequent procedure in the copyright office.

Registration is provided for works (e.g., works of art) of which
copies are not reproduced for sale, with the requirement that the
notice shall be affixed to the original "before publication
thereof." [Sec. 10.]

The deposit to be not later than thirty days after publication; in
the case of a periodical not later than ten days. The copies
deposited to be of the "best edition," as required by the act of
1870. [Sec. 11.] In case of error or omission to make the deposit
within the thirty days, permission to make it within a year after
first publication, but with the proviso that no action shall be
brought for infringement until it has been made. [Sec. 15.]

In case of a printed book the copies deposited must be accompanied
with the affidavit called for by House bill 13355, passed by the
House April 26, 1904, that the requirements as to American
typesetting, etc., have been complied with, and the affidavit is to
specify the place and the establishment in which the work was done.

Extends [sec. 13] the "manufacturing clause" to include texts
produced by lithographic process, and also in certain cases
illustrations and separate lithographs, but abrogates it in the
case of photographs.

The articles required to be deposited are to be entitled to free
transmittal through the mails, as under earlier statutes (e.g., act
of February 18, 1867; July 8, 1870). [Sec. 12.]

The notice of copyright simplified. Specified only for the copies
"published or offered for sale in the United States." Where right
of public performance is reserved on musical compositions, a notice
to this effect is required. [Sec. 14.]

_Ad interim term_ [_sec. 16_].--Extends the ad interim term of
protection in the case of books first published abroad in foreign
languages from one year to two years. Provides for an ad interim
term in the case of books first published abroad in English, of
thirty days, but with prohibition of importation during the
interim.

_Duration_ [_sec. 18_].--Instead of the present term (forty-two
years), varying terms according to the subject-matter. Provides a
special term of twenty-eight years (instead of forty-two years as
now) for labels and prints heretofore registered in the Patent
Office; increases the term of other articles, and especially
derivative articles, from forty-two years to fifty years; and in
the case of original works increases the term to the life of the
author and fifty years. Abolishes renewals.

The bill also makes provision for the extension of subsisting
copyrights to agree with the term provided in the present bill
where the author is living or his widow or a child, provided the
publisher or other assignee joins in the application for such
extension. (See section 19 of the draft.)

The right of dramatization or translation must be exercised within
ten years or it will lapse.

_Protection of copyright._--The present statute (Rev. Stat., sec.
4965) attempts to define acts which shall constitute infringements.
The bill, having defined the exclusive rights which the copyright
has secured to the author, defines (sec. 23) infringement as "doing
or causing to be done" without his consent "any act the exclusive
right to do or authorize which" is "reserved" to him. It contains,
however (sec. 22), the one specification that "any reproduction"
without his consent "of any work or any material part of any work"
in which copyright is subsisting, shall be illegal and is
prohibited.

The civil remedies open to him (sec. 23) are the injunction and an
action for damages and profits, or, in lieu of actual damages and
profits, "such damages as to the court shall appear just, to be
assessed" upon the basis of so much per copy or infringing act, but
to be not less than a total minimum of $250 and maximum of $5,000.
And the infringing copies are to include all copies made by the
defendant, and not merely those "found in his possession" or "sold
or exposed for sale." A provision for the impounding and
destruction of infringing copies and means for producing them.

Protection provided for [sec. 21] against publication or
reproduction of any unpublished copyrightable work.

A willful infringement for profit, now a misdemeanor in the case of
such a performance or representation of dramatic or musical
compositions, is made a misdemeanor in all cases, as is also the
insertion of a false notice of a copyright or the removal of a true
one. [Sec. 22.]

_Importations_ [_secs. 26-29_].--Detailed provision for the
treatment of copies supposed to be infringing or otherwise
prohibited. Exceptions to prohibition modified as below under
memorandum "B."

_Suits_ [_secs. 32, etc._]--Actions may be instituted "in the
district of which the defendant is an inhabitant, or in a district
where the violation of any provision of the act has occurred."

Limitation of actions to be three years instead of two and to apply
to all actions under the act. [Sec. 34.]

_Transfers_ [_secs. 37-45_].--Definitions of the copyright as
distinct from the property in the material object and of the
copyrights in derivative works as distinct among themselves.

_The copyright office._--Sections 46 to 60 provide specifically for
the administration of this.

_Catalogue of title entries._--Detailed provision is made for the
continuance of the printing of the catalogue on the allotment for
printing of the Library of Congress (see secs. 55 and 56 of the
draft); and the catalogue is to be made prima facie evidence of
deposit and registration.

Provision is made for the reprinting of the indexes and catalogues
in classes at stated intervals, with authority to destroy the
manuscript cards included in such printed volumes. The current
catalogues to be distributed from the copyright office, and sold at
a price fixed by the register; the subscriptions to be received by
the superintendent of public documents.

Following the provisions for the indexing and cataloguing of the
articles deposited, provisions are made, in sections 57, 58, and 59
of the draft for the public inspection of the copyright office
record books and deposits; for the permanent use of such deposited
articles; for their transfer to other Government libraries where
unnecessary to the Library of Congress; and for the disposal of
accumulations of useless articles.