Chapter XI: Section 9: provides, about the fifth or sixth line, that "in the case (2)

Mr. REMICH. They would have to come here and dig out the records if they wanted to find out about that. The only argument that I have heard in favor of this suggestion is that it will diminish the amount of work that will have to be done in the copyright office. If they can make one certificate cover twenty views or twenty-five views or a hundred views, they will not have to make so many certificates. Is there any good reason why my business should be ruined to accomplish such a result when there are plenty of people that want to work in the office and when the present revenues are amply sufficient to pay for all the work done? In my town we are exempting property from taxation and offering big financial inducements to bring manufacturing interests into our town, because they are going to employ more labor. I do not suppose Washington has reached the point where it has so much population that it does not want more men and women employed in Washington, performing honest day labor and earning good money to be expended in the city.

Senator MALLORY. What is the reason assigned for uniting these two fees in one; do you know?

Mr. REMICH. I was not here, and I did not hear the reasons.

Senator MALLORY. I was not here, either, so I do not know.

Mr. PUTNAM. For the benefit of the Senator I might explain that the idea was this, Senator: That the office will hereafter furnish the certificate in all cases as a matter of course, which heretofore has been furnished only when requested; and that in furnishing it it should charge for it as heretofore, making the charge therefor $1.

Senator MALLORY. Still, the certificate is not necessary except where it is desired to prove the fact that the copyright has been secured.

Mr. PUTNAM. It was with the idea that it was a precaution that the copyright proprietor ought in reason to take.

Senator MALLORY. I have no doubt that there are many persons situated as this gentleman is who do not want any certificate except in very rare cases.

Mr. REMICH. That is right.

The CHAIRMAN. To what extent do you now issue certificates?

Mr. PUTNAM. Mr. Register, to what extent is that done?

Mr. SOLBERG. For last year the total of registrations numbered 116,000, and of those 28,087 were certificates.

Mr. REMICH. That is about one-fifth.

Mr. SOLBERG. It should be remembered that requests for certificates additional to the certificate paid for at the time of registration are constant, and in addition to fees submitted to secure certificates, constant inquiry is made of the Copyright Office and answered at some service cost as to what entries have been made by particular firms. They ask us "just what entries did we make in May last?"

The CHAIRMAN. What were the gross receipts of the Copyright Office for the last fiscal year?

Mr. SOLBERG. The receipts--this is for the calendar year, Senator, those being the latest figures which I have.

The CHAIRMAN. Very well.

Mr. SOLBERG. The fees for the total calendar year were $78,518, of which the certificate fees were $14,043.

The CHAIRMAN. What are the expenses of the office?

Mr. SOLBERG. The total expenses of the office can not be given. The comparison given here is between the appropriations for service only, and I could give you that for the year.

Mr. PUTNAM. That is for the fiscal year. In this case we have had to take the last fiscal year, with your permission.

The CHAIRMAN. Yes, sir.

Mr. SOLBERG. The fees for the fiscal year ending June 30, 1905, were $78,058. The appropriations for service during the same period were $74,662.46--the appropriation expended for service, but the only element covered is service cost. It does not cover printing, stationery, or any supplies, nor the printing of the catalogue of entries, which include all registrations made at any fee, even if no certificate is paid for. That is estimated at $25,000 per year--the printer's estimate for printing. If that is included with all other expenses, the fees do not cover the total expenses of running the office.

Mr. CHANEY. By how much?

Mr. SOLBERG. I have not been able to ascertain the exact figures for printing, but I should suppose that the balance might be some thousands of dollars against the office.

The CHAIRMAN. You have some figures, Mr. Remich; you made some statement earlier in your remarks upon that subject.

Mr. REMICH. Yes, sir. I took this leaf from the report, and I will read it. This is the last year's report of the office:

The earned fees paid into the Treasury for the year ($78,518)
exceeded the amount expended for salaries, which was $74,600.37.
The additional expenditures during the year for stationery and
other supplies can not at this date be obtained from the chief
clerk of the Library, but for the first six months of the year they
amounted to but $309.63, and the year's contingent expenditures,
therefore, should be under $1,000. The yearly average for the last
five years has been $954.29.

Then they say:

The appropriations for 1901, 1902, 1903, 1904, 1905, and the first
half of the fiscal year 1906 include the sum of $25,740, to be
used in bringing up the arrears of work prior to July 1, 1897,
which amount should therefore be deducted from the total sum for
appropriations for service as not properly a charge upon the
current work of the office, leaving the excess of fees earned over
appropriations used for service $125,675.39 for the eight and
one-half years.

The copyright fees are not, however, the most valuable assets of
the office. During the year the articles deposited and credited
numbered 213,498 articles. This large deposit of books,
periodicals, maps, music, engravings, photographs, etc., includes
many articles of considerable value which the Library of Congress
would otherwise be required to purchase, and these articles
therefore represent an annual acquisition of property to the value
of many thousands of dollars.

Mr. CHANEY. But they do not produce any money.

Mr. REMICH. They do not produce any money--that is so; but they save you making an appropriation. This saves the Appropriations Committees of both House and Senate from appropriating money each year to buy these things that you would otherwise have to buy to place upon the shelves of the Library. Now, I want to do my share, and I want my business to do its share, toward supporting this Government. But I do not think, in view of this report, that there is any good reason why this great, rich Government should place this increased burden upon our industry.

Mr. CHANEY. Do you not argue unfairly when you undertake to bring in the Library as against the proposition?

Mr. REMICH. I am not trying to bring in the Library as against the proposition. Every author has to file two copies of his book, and they are placed in the Library. I say that if they did not do that, Mr. Putnam, the Librarian, would have to take money out of his appropriation and buy these books. I should suppose that that would be so. Otherwise he would not say that they were of great value. I am willing, if they want to make a certificate of every view we have and send to us, for any convenience of the office, to take them; but to force us to pay for thousands and thousands of certificates, which will make it impossible for us to make a profit in the manufacture of our goods at the close margin under which the business is conducted under our contracts, would be a hardship, and I do not believe you want to drive us out of business in that way.

Mr. CHANEY. We certainly do not want to drive you out of business.

Mr. REMICH. It seems to me that it would have that effect.

Mr. CHANEY. But I take it that the Librarian's purpose was to try to make this thing pay its way.

Mr. REMICH. I have no doubt about that. Mr. Putnam and Mr. Solberg have told me that by this consolidation of subjects many certificates could be saved. I should be glad to comply with their suggestion if our business was of such a character that we could do this series work; but you can see the difficulties.

Mr. PUTNAM. We want to be as clear as possible, and to meet this difficulty. Let me ask you this: Do you not do any series work, or is it only that you do not do work in a series under this limitation as to pose or composition?

Mr. REMICH. We do not do that class of work.

Mr. PUTNAM. If the words "only in pose or composition" were stricken out, would there be a material reduction in your fees? In the first place, it seems to me that it would be convenient for us to know--how many copyright entries do you make in the course of a year?

Mr. REMICH. I can not tell.

Mr. PUTNAM. Have you any idea?

Mr. REMICH. It varies with different years.

Mr. PUTNAM. Would it run up into thousands?

Mr. REMICH. Some years I think it does.

Mr. PUTNAM. If you were privileged to register under one fee works in a series----

Mr. REMICH. But what would be a "series?" That is the question.

Mr. CURRIER. Representing the same subject.

Mr. PUTNAM. Representing the same subject under the same title with only slight variances, but not the variances described here as "only in pose or composition." What we would like to know is, would it enable you to enter a great many of these articles under one fee that you now enter separately?

Mr. REMICH. That depends upon what you call the same subject.

Mr. CURRIER. Is seems to me that you would have to introduce the word "general;" that is, make it read "the same general subject."

Mr. REMICH. If you introduce that who will decide what is the same general subject, except the courts? It would encourage law suits.

The CHAIRMAN. It would be the Librarian, would it not?

Mr. REMICH. His decision would not be final. The law says we can go to the courts and test his construction.

The CHAIRMAN. It would be the Librarian, so far as your fees were concerned?

Mr. REMICH. Yes; but we do not want to pay a fee unless it is to be registered in such a way that the court will hold that we have a legal registration. We have an artist in San Francisco; and if we could register under one entry all the views that he will take in San Francisco while he is there, which will probably be 500 different subjects, for half a dollar, we would like to do it. But what subjects that he takes in San Francisco can we include as a series and have protected? He will take the Pacific Hotel, showing its ruin and present condition, and he may take a Chinese camp, and he may take the Flood Building, and so on. How many can we get into a series and have the court protect us when we come to try a case? That is the difficulty.

Suppose this said you shall enter under a series all churches in Paris--under one entry fee, for 50 cents--that we may enter all negatives that we take of churches there. How will you describe it in your entry upon the book? Suppose we go to Rome, where they have 365 Catholic churches; they are not grouped in any way; we can not pose them. How will you describe the 365 views? Will you describe them as 365 views of the churches of Rome, or will you specify them under one head? You can see the difficulties, gentlemen.

Mr. PUTNAM. Do you not publish those in series for selling purposes sometimes?

Mr. REMICH. No. In selling we do this: We have a pictorial illustration of the Holy Land. It includes perhaps fifty pictures, but it covers the whole of the Holy Land. One is taken in Jerusalem, one in Jaffa, and one at Damascus, for instance. We should be glad to comply with any law that will protect us and not inject doubts into our business and encourage piracy.

Mr. CURRIER. Mr. Webb desires to know if this amendment would take care of your matter: "Insert after 'seal,' in line 6, page 37, the words 'provided only 50 cents shall be charged for each stereoscopic view filed and registered.'"

Mr. REMICH. That is all right. And if we want a certificate in our business, we will come and, as the old lady said, "heave down our 50 cents and get it."

Mr. PUTNAM. "_Provided_, That in the case of stereoscopic views the certificate should not be furnished unless required, and in that case the fee shall be," etc.

Mr. CURRIER. And in such case no certificate shall be issued unless the regular fee is paid.

Mr. REMICH. That is perfectly satisfactory; but any attempt to define by series is sure to be unsatisfactory.

Mr. CURRIER. I think you may be right about this matter of series.

STATEMENT OF A. BELL MALCOMSON, ESQ.

Mr. MALCOMSON. I intend, Mr. Chairman, to be brief. The remarks that I shall make are pertinent more to correct the law so as to make it more definite than for any other purpose. I have prepared a short statement of just what the changes I propose are. The matter is one relating to lithographs. I represent Mr. McLaughlin, or McLaughlin Brothers, who are probably the largest lithographers in the country. Mr. McLaughlin has spent millions in perfecting that art in this country. He, unfortunately, is abroad at the present time, and has asked me to be here to represent him.

Lithographs have always been mentioned in the former copyright bills. A lithograph is something different from any other production of a picture or of any pictorial illustration. But in this case it has been thought by the framers of the bill that the words "print or pictorial illustration" would cover lithographs.

The CHAIRMAN. Please refer to the section of the bill that you wish to call attention to.

Mr. MALCOMSON. I am referring to page 4, line 4.

Mr. CHANEY. "Prints and pictorial illustrations?"

Mr. MALCOMSON. Yes. The word "lithograph" is not mentioned in the subjects of copyright. It has always heretofore been mentioned. The suggestion that I find in the little memorandum that was attached in relation to the bill is: "It is assumed, however, that these will be included under the more general terms as prints and pictorial illustrations;" that is, that lithographs, it is presumed by the framers of this bill, will be included under that term.

Lithographs, as I say, are something entirely different from any other production, and I do not think--and I hope the committee will agree with me--that they are entirely and specifically included. Lithographs are not included under that term.

Senator MALLORY. How about engravings?

Mr. MALCOMSON. Engravings are prints. The lithographic process is something different from the mere printing from an engraving. The lithographic process is a very peculiar and a very interesting one. It would take too long for me to go into it and describe it, but it is entirely different from printing. The use of the colors, the manner in which the ink or the color is transferred from the stone to the paper, is not the mere act of printing. The color, I will say in brief, is held there by, as it were, grease. Grease forms a material component in the practicing of the lithographic process.

The matter of lithographs has always been mentioned. The subject of lithographing has always been mentioned in previous bills, and not only that, but in this bill the lithographic process is specifically mentioned, and I shall come to that next. But the suggestion now is that there is a sufficient difference between lithographs and all other prints and pictorial illustrations to warrant the word "lithographs" being inserted there.

Mr. CURRIER. Then you would insert, after the word "prints," in line 4, on page 4, the word "lithographs?"

Mr. MALCOMSON. Yes, sir. That is my proposition. I do that because particularly in a late decision of great importance, made by the circuit court of appeals in our second circuit, they have used this language----

The CHAIRMAN. That is the decision that has already been put in the record?

Mr. MALCOMSON. I think it has. It has been handed in to the committee. A printed copy of it has been loaned to me, and I will read an extract from it to show the pertinency of my remarks about interpolating this word "lithograph:"

But in view of the fact that the law of copyright is a creature of
statute and is not declaratory of the common law, and that it
confers distinctive and limited rights which did not exist at the
common law, we are constrained to hold that it must be strictly
construed, and that we are not at liberty to extend its provisions,
either by resort to equitable considerations or to a strained
interpretation of the terms of the statute.

I think that I am warranted, in view of that late decision, in asking the committee to interpolate that word "lithograph."

The CHAIRMAN. What do you say to that suggestion, Mr. Putnam and Mr. Solberg?

Mr. PUTNAM. I prefer that a suggestion as to phraseology in a section that has been so very carefully considered by our general legal advisers, these two committees of the bar association, should be submitted to them for their opinion as to its necessity and effect; and I think it would not be helpful to the committee to have me give an offhand opinion upon it.

Mr. CHANEY. I do not think there is much doubt that that lithographic process would not be included in merely a pictorial illustration.

Mr. MALCOMSON. Or in a print.

Mr. CHANEY. Or in a print, either.

Mr. MALCOMSON. It might possibly be in a print; but a print might be construed by the courts to be something in which type and ink, or a plate and ink, is used.

The CHAIRMAN. Was this matter taken up at the conferences?

Mr. MALCOMSON. I do not know. I was not present when it was specifically discussed. I was present at one of the conferences, but not when this was specifically discussed. I have always urged upon the Copyright Office, with whom I have colabored in this matter, that it should be included. And I am now here to stand up for it. I shall ask leave to be heard again on this, in view of the fact that Mr. Putnam states that he wishes to discuss it with the parties who drew the bill. I ask to be heard again at some subsequent hearing.

I pass on now to page 8, and the next suggestion that I have to make is in line 21 on that page. We know from what I have said, or we have an idea of what a lithographic process is. In this section, which is on page 8, is the restriction in relation to the printing of books or of lithographs, which are copyrighted in this country, in a foreign country and importing them here. That applies to this case. In Germany they can do this kind of work and beat us out of our boots. We can not compete with them at all in that line of work. To such an extent is that so that to-day the pictures of our Capitol, the pictures of all prominent buildings in our cities, are printed on postcards, and you will find on these cards a little statement, if you look at it, "Made in Germany." That is so throughout our cities. They are not copyrighted, of course. If they were copyrighted they would have a protection which they do not now have; but that is the fact.

In this section 13, on page 8, to which I am referring, there is a provision that where the book is copyrighted the type shall be set up in the United States and the book shall be printed in the United States. I will read section 13, so that we can comprehend it [reading]:

SEC. 13. That of a printed book or periodical the text of the
copies deposited under section 11, above, shall be printed from
type set within the limits of the United States, either by hand or
by the aid of any kind of typesetting machine, or from plates made
from type set within the limits of the United States; or if the
text be produced by lithographic process, then by a process wholly
performed within the limits of the United States; which
requirements shall extend also to the illustrations produced by
lithographic process within a printed book consisting of text and
illustrations, and also to separate lithographs----

Now follows the matter that I am objecting to: "Except where in either case"--that is, in the case of the book being produced by lithographic process, or in the case of a separate illustration being in the book--"except where in either case the subjects represented are located in a foreign country." Now, the lithographic process is not one in which a man goes and sets himself down in front of a mountain and works his process and takes his color scheme from the mountain, or one in which he goes in front of a building in a foreign city and sets up his lithographic process and conducts it there, at all. Why that exception? What is the meaning of it? I have had no explanation of it. I can not get any. It is said, "Well, the picture may represent a building in a foreign country or foreign scenery." Not at all.

There is no necessity for that exception in those cases. If a foreign scene is to be reproduced by a lithographic process, a photograph is taken of it in the foreign country, or a sketch is taken of it in the foreign country. The color scheme is then developed by the artist, possibly there, but no part of the lithographic process is necessary to be conducted in the foreign country at all. It is brought over here, and in the factory, in the print works in Brooklyn or Detroit or some other part of the United States, the lithographic process is then practiced.

Mr. CHANEY. What effect does this section have?

Mr. MALCOMSON. It would have the effect of throwing into the hands of the German lithographer all lithographic work in relation to pictures or paintings which related to any foreign city or foreign landscape. That is what the result of that exception would be. Every foreign landscape, every foreign building that is depicted by a lithograph under that section is outside of the restrictions of this section 13. That is what that means. You can not reason it out any other way; and that is the reason we except to it. We say we are properly protected by section 13, and that that exception should come out.

Mr. CHANEY. As you explain it, I think it ought to.

Mr. CAMPBELL. Just what do you want to strike out?

Mr. MALCOMSON. I want to strike out those words that I have read. If the committee will be kind enough to mark the words, I will read them, on line 21, page 8: "Except where, in either case, the subjects represented are located in a foreign country." That ought to come out, for two reasons. It is ambiguous----

Mr. CURRIER. It would not occur to me that it is ambiguous.

Mr. MALCOMSON. Well, it is pretty straight, I think, in one way.

The CHAIRMAN. Where is your next point?

Mr. MALCOMSON. The next one, if the committee please, is on page 14, line 15. That is exactly to the same import as the one on page 4, because it inserts the word "lithograph" after the work "print," you will see.

Mr. CURRIER. You think it should be inserted there after the word "print," again?

Mr. MALCOMSON. Yes. The same argument that I made before will apply to that.

Mr. CURRIER. If it needs to be in the other place, it should be put in here, also.

Mr. MALCOMSON. That is all that I have to offer. I am exceedingly obliged to you for your attention.

Mr. CAMPBELL. Just a moment. I understood your objection on that page 4 and this last one is that the word "print" does not cover a lithograph?

Mr. MALCOMSON. My objection is that it is a question--that it would leave a question for the courts; and in so far as it is really meant to be there, and we have had a decision of one of our highest courts of appeal, unless they get a writ of error and go to the Supreme Court of the United States, using the language that I have just read to you in relation to this copyright law, that it is a statutory law, and that it must be construed strictly--with those facts before me, I urge upon the committee that we do not leave that question open.

Mr. CAMPBELL. What I wanted to inquire was just this: Do you not understand that the word "print" in its ordinary significance and meaning in the dictionary covers the lithograph?

Mr. MALCOMSON. I understand that a "lithographic print" is a proper term; but I understand that that word "print" might be construed as not broad enough to cover a lithographic print. There are prints from engravings. They are prints; and in the old law, we have the word "cut." "Cut" and "print" are substantially the same, and there is a decision, which I have not gone into, because I do not want to take up any more time than I can help----

Mr. CURRIER. I see no objection to inserting the word "lithographs," if there is any doubt about it at all.

Mr. CAMPBELL. What I want is information as to whether or not, in his experience, it is not already covered by the word "print." Under the ordinary definition in the dictionary, it seems to be perfectly covered.

Mr. CHANEY. That decision that he referred to a while ago leaves it somewhat in doubt.

Mr. MALCOMSON. I wrote a 15-page brief once on that part of the statute which related to "cuts" and "print" and discussed the subject most thoroughly; and it made me feel that we ought to have the word "lithograph" in there.

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 illustration, without any question. An etching is a pictorial illustration of a subject, certainly, and an engraving is a pictorial illustration 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 Wilcox, 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 illustrations at all, but to make a separate classification. 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,
_Washington, 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 institutions, 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 institutions, 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.)

3. In the provisions of the new bill dealing with importation a
careful distinction has been maintained between unauthorized
(fraudulent) copies and copies of authorized editions not printed
from type set within the limits of the United States.

In the case of all unauthorized reprints of books the prohibition
of importation is absolute, and any such copies introduced into
the United States are subject to seizure, forfeiture, and
destruction. (See sections 26 to 29 of the bill.) In the case of
copies of authorized editions not set in the United States, such
copies if imported are seized and exported, but not destroyed.
(See copyright bill, sec. 31.)

All exceptions, therefore, to the prohibition of importation of
authorized editions in the bill concern only authorized copies,
and there is no permission in favor of any one to import any
unauthorized, pirated copies.

Very respectfully, yours,

THORVALD SOLBERG,
_Register of Copyrights_.

Hon. FRANK D. CURRIER,
_Chairman House Committee on Patents, House of Representatives_.

The CHAIRMAN. It seems that a Mr. Davis, who represents some manufacturers of musical devices, does not understand that he is to have any part of the hour assigned to the gentlemen mentioned yesterday. Is Mr. Davis here?

Mr. PUTNAM. I think Mr. Davis has not yet come in.

With your permission, Mr. Chairman, I will state as to the letter of Mr. Wilcox, to which I referred yesterday in connection with the suggestion from Mr. Malcomson as to the need of including lithographs in the specification of subject-matter, that the passage which I should have read if I had had the letter here (it was with the stenographer) was this:

I congratulate you that the bill has taken this definite form and
is now to be given a preliminary hearing, so that it will be in
shape to be urged for passage next winter. The bill is a monument
to the industry and broad intelligence and information of those who
have been actively concerned in drafting it. * * * As affecting the
interest of my client, the Consolidated Lithograph Company, which
is a large producer of lithographic and other prints, engravings,
etc., especially for use as posters, the form of the bill seems
satisfactory to me, and I have no doubt it will be so to my client.
This refers particularly to the provisions of sections 4 and 5,
defining the subject-matter of copyright and the form of
applications for registration. These provisions are in the highest
degree liberal and enlightened.

The copyright office has received a communication from Mr. Fritz von Briesen, requesting that in section 5, after line 7, a further subdivision, "Miscellaneous," be inserted, and that the following be added:

_And provided furthermore_, That a series of maps, drawings,
photographs, prints, and pictorial illustrations, and labels and
prints relating to articles of manufacture, and other subjects of
copyright of an artistic nature, constituting a unit or assembled
for a unitary purpose, shall be considered as the subject-matter of
a single copyright registration, should the applicant so elect,
whether or not they are actually joined by binding, printing on the
same sheet of material, or otherwise.

I suggest this, Mr. Chairman, as appropriate to be inserted in connection with the discussion of the fees yesterday by Mr. Remicher. It bears on that point.

The CHAIRMAN. That will go in the record.

Mr. PUTNAM. I handed in, I believe, yesterday, a statement in writing from Mr. A. W. Elson, of Boston, making certain specific recommendations for changes. He telegraphs me, "Written presentation sent you fully covers my view."

That is in answer to an inquiry as to whether he wished to have a hearing before the committee.

I have received a communication from the International Brotherhood of Bookbinders, as follows:

As president of Local No. 4, of Bookbinders' Union, of this city,
and representative of the International Brotherhood of Bookbinders
of the United States, I would be pleased to be heard on the Currier
copyright bill to-morrow, immediately after Mr. J. J. Sullivan has
spoken on bill. I will not consume more than ten minutes, and
possibly less than that. I will be in attendance at the hearing.

Very respectfully,

J. L. FEENEY.

The office has received, since the bill was introduced, from the Music Publishers' Association, certain proposed amendments, additional provisions in connection with the protection of the copyright on musical compositions. These, I should advise the chairman, have not been communicated to the gentlemen who are to speak in opposition to any of those provisions. They have not had them, therefore, before them in preparing their case this morning at all; and while I have manifolded copies here which are at their disposal, it is to be understood that these were not communicated to them. On the other hand, Mr. Serven, who in behalf of the music publishers handed these to me, states (if I am not correct, Mr. Serven, you will correct me) that these contain additional specifications but in the same general direction. That is all.

Mr. A. R. SERVEN. That is correct, Mr. Librarian, and simply to conform subsection G of section 1 to comply with the recent decision of the United States circuit court of appeals in the White-Smith _v._ Apollo Company case. The same idea is represented simply. The case was decided, of course, since the bill was printed.

The CHAIRMAN. Mr. Putnam, just call our attention to the proposed change.

Mr. PUTNAM. This is contained in a written communication, and it will really take less time to read it from the communication.

The CHAIRMAN. Yes.

Mr. PUTNAM. (Reading:)

Section 1, subsection G, should be amended to read as follows:

"To make, sell, distribute, or let for hire any device,
contrivance, or appliance adapted in any manner whatsoever when
used in connection with any mechanism to reproduce to the ear or
to cause the said mechanism to reproduce to the ear the sounds
forming or identifying the whole or any material part of any work
copyrighted after this act shall have gone into effect, or by
means of any such device, contrivance, appliance, or mechanism
publicly to reproduce to the ear the whole or any material part of
such work."

Omitting the explanations, the next amendment will be as follows:

Section 3 should be amended to read as follows:

"That the copyright provided by this act shall extend to and
protect all the copyrightable component parts of the work
copyrighted, any and all reproductions or copies thereof, in
whatever form, style, or size, and all matter reproduced therein
in which copyright is already subsisting, and the devices,
appliances, or contrivances mentioned in section 1, subdivision
(_g_) of this act, but without extending the duration of such
copyright."