Chapter VIII: Section 4: is the section upon which everything more or less hangs, and (2)

There is only one other, so far as I know, important extension of the right of copyright contained in this bill, and on its face it appears to be a matter of inadvertence. It is contained in section 8, where there are provisions A and B, on page 5. The present law of copyright allows a foreigner to take out a copyright if he is a resident in the United States, or if he is a citizen of one of those countries which allow similar privileges to citizens of the United States. Those are the two categories.

At first glance at A and B, in section 8, it would appear that those were intended to represent the same classes and to give precisely the same rights; but, apparently by inadvertence, in the second line of subdivision A the word which should, I think, be "and" has become "or," so that as it at present reads a foreigner, no matter where he lives, no matter whether the country of which he is a citizen gives similar rights to citizens of the United States or not, may, if he shall first or cotemporaneously publish his work within the limits of the United States, have a copyright. I am not here to say that that would not be a wise extension of the law. I am not here to say on behalf of any of the parties whom I represent that they would or would not oppose it. I do not know anything about their views. This extension of copyright is not an extension which has been discussed in the conference. I have no right to give any approval of it, even to the limited extent that I have a right to give an approval of this bill on behalf of any of these bodies whom I represent.

Mr. BETHUNE. Would not the interest of the publishers be safeguarded if the law provided that an individual may import one copy of the foreign edition, but only after he has asked the proprietor of the American copyright to buy one for him and his request has been refused?

Mr. OLIN. If the committee chooses to put that in, I can see no harm in it at all. It seems to me that it will result in that, necessarily, if the American publisher is not actuated by his own interest, as he used to be prior to 1891, and as I think he would be again, and if he is not glad to import that copy from abroad. If he refused I think if anybody who is aggrieved should come to Congress, Congress would change the law instantly and compel the copyright proprietor to give consent; and if Congress thinks it right to put in that provision in the beginning nobody could complain. So that my answer is that I do not think anybody would object.

Mr. JOHNSON. I would like to ask if an American citizen traveling in Europe should at the time he was there purchase one of these editions, would it not be a hardship on him to compel him to forego the bringing of that copy into the United States without the consent of the American proprietor?

Mr. OLIN. Is that question addressed to me?

Mr. JOHNSON. Yes.

Mr. OLIN. If a hardship, it is inflicted by the English custom-house at present in regard to these very Tauchnitz editions. It is one of the few things they are rigorous about, and I think members of this committee may have had experience with the English customs and their rule about that. But in this bill it is provided that where there are parts of libraries or books in baggage brought back by traveling people they shall be admitted. I think it is a question of de minimis. I think in the case of a man bringing back such a book it would be no hardship worthy of the consideration of Congress.

Mr. JOHNSON. All personal baggage is included also?

Mr. OLIN. Yes.

Mr. PUTNAM. For the information of Mr. Johnson, Mr. Chairman, I think that Mr. Olin was referring, in answer to that question, substantially to subsection 4, on page 25, which was supposed to take care of the person bringing in copies in his personal baggage.

Mr. Ogilvie is here from Chicago, but before his statement is made I wish to say that, as I understood, Colonel Olin spoke in two capacities; in the first place, giving some general expression in behalf of a certain group of organizations, and their substantial acquiescence in the bill; in the second place, as counsel specially for the book publishers, with reference to certain particular provisions, particularly this importation clause.

Mr. OLIN. Yes; and, finally, I wished merely to modify the general approval of the bill which I had given on behalf of all these organizations, by expressing my understanding that they considered the bill, as I supposed was intended, with "and" instead of "or" in the second line of subdivision A, in section 8, on page 5.

Mr. PUTNAM. In that latter capacity, the provisions of the bill as to which Colonel Olin spoke were those as to importations particularly affecting the interests of the libraries; and, considering what will be most helpful to the committee, it would seem to me appropriate, and I submit it as a suggestion, that as soon as possible after the statement that you have had from Colonel Olin in explanation of those provisions you have the statement from representatives here of the group of libraries--librarians--that would dissent from the provision. Mr. Cutter is here, and, if I understand him rightly, his statement will be brief. Mr. Ogilvie, however, had been promised an opportunity to be heard early this morning. As I understood him, the oral statement that he proposes to make is an objection to certain provisions of the bill, and that he would be content with an opportunity for a ten-minute statement, to be supplemented, if he chose, in writing, to go into the record.

STATEMENT OF GEORGE W. OGILVIE, ESQ., OF CHICAGO.

Mr. OGILVIE. Mr. Chairman and gentlemen of the committee, as I understand that this bill is to take the place very largely of the copyright act of 1891, it may be proper to refer to some of the arguments that were advanced at that time as to why that particular bill should pass. In furtherance of that idea, I read from The Question of Copyright, by George Haven Putnam, on page 103, in which it is said:

It is admitted that the proposed act or any other of a similar
nature will raise the price of the very cheap reprints of English
stories yet to be written a few cents apiece. A pamphlet of that
sort now costing 20 cents will then cost 25 cents. Of the
additional price, 2 cents will go to the author and 3 cents will go
into better paper, better print, and better binding. For the 5
cents of increased cost an American story will be furnished oftener
than an English story, an American author will get pay for his
labor, and the reader will get a book that is 100 per cent better
than the old one in paper, print, and binding.

I submit that if an additional cost of 3 cents is to go into paper, print, and binding, and will produce a book that is 100 per cent better than the 20-cent book, and 2 cents of the increased price is to go to the author, that the publisher would receive no benefit whatever; and it is well to bear in mind that the disinterested patriots who requested the passage of the international copyright law did so for the purpose of benefiting not themselves, but the author of a book 2 cents per copy, and the producer of paper, printing, and binding 3 cents per copy, out of which they got nothing. It is the same gentlemen, as I understood it, who were sponsors for that bill who are the sponsors for this. Twenty cents per copy for a book costing 3 cents to produce shows a profit somewhere of 666 per cent; and it is probable that they were satisfied with that percentage. As a basis for further remark along that line, I desire to draw your attention to section 13 on page 6 of the bill, as I have it here.

Mr. PUTNAM. That is the library copy.

Mr. OGILVIE. It is section 13 of the third paragraph [reading]:

Any person who, for the purpose of obtaining a copyright, shall
knowingly be guilty of making a false affidavit as to his having
complied with the above conditions shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be punished by a
fine of not more than one thousand dollars, and all of his rights
and privileges under said copyright shall thereafter be forfeited.

The CHAIRMAN. For whom do you appear, Mr. Ogilvie?

Mr. OGILVIE. For myself as a publisher and for several other Chicago publishers, none of whom were represented at or invited to the conferences of which this hill is the result.

Mr. CHANEY. Had you no notice that there was going to be a conference?

Mr. OGILVIE. The first information that I had that there was a conference was from a gentleman representing Lyon & Healy, of Chicago, in the Manhattan Hotel in New York, last November. That was the first intimation I had that there had been a conference. I knew that there were likely to be some, but I had no notice of their dates.

Mr. CHANEY. We wanted you as well as everybody else.

Mr. OGILVIE. I knew nothing about it. I may say, also, that the first draft of this bill that I have seen was received in my office in Chicago Saturday morning last.

Again, on page 18 of the bill, section 25:

That any person who willfully and for profit shall infringe any
copyright secured by this act, or who shall knowingly or willfully
aid or abet such infringement or in any wise knowingly and
willfully take part in any such infringement shall be deemed guilty
of a misdemeanor, and upon conviction thereof shall be punished by
imprisonment for not exceeding one year or by a fine, etc.

It seems to me a little out of order for the gentlemen who are sponsors for this bill to make it possible for them to get a copyright on a book, and if they are not caught in making a false affidavit in securing it, that a man shall go to the penitentiary for a year for pirating that particular book. It will be rather difficult for one to prove, after a number of years, that a publisher who has made an affidavit to secure a copyright to which he really was not entitled had committed perjury in connection with the securing of that copyright; but the question as to one's piracy of the book is open and "he that runs may read." It seems to me that there is a punishment there that they have applied to the wrong crime. If the man who makes a false affidavit were to go to the penitentiary for the year, I think it would protect the interests that desire protection in this country, in the form of labor, in the matter of setting up and manufacturing books wholly within the limits of the United States.

The CHAIRMAN. Do I understand you to contend that the Librarian should be charged with any special duty in that regard, for the registry of the copyright?

Mr. OGILVIE. No, sir; the Librarian can not determine whether a man is making a false or correct affidavit, but if one makes a false affidavit he is the man who should go to the penitentiary and not the individual who pirates his book.

Mr. BONYNGE. Does not section 13 provide that the man who makes the affidavit shall be guilty of a misdemeanor?

Mr. OGILVIE. Yes; and the penalty therein provided is, "he shall be fined not exceeding one thousand dollars." That is all.

Mr. CURRIER. What is your suggestion?

Mr. OGILVIE. That you change the punishment.

Mr. CURRIER. And make it a penitentiary offense?

Mr. OGILVIE. Let them both go to the penitentiary, if either one goes.

Mr. CURRIER. In both cases?

Mr. OGILVIE. In both cases, if necessary. Do not eliminate the publisher. I am a publisher, but if I have made a false affidavit, there is no reason why the man who pirates my book should go to the penitentiary and I should only have to pay a fine, if I am caught. I see no reason why a man should go to the penitentiary in either case, really. He may unwittingly infringe the copyright of a book.

Mr. CURRIER. This says "willfully."

Mr. OGILVIE. That is subject to the construction of the courts. We all know what that means.

Mr. CURRIER. No; it puts the burden of proof on the Government to show it beyond a reasonable doubt.

Mr. OGILVIE. The proof of the perjury should also be beyond a reasonable doubt and the one guilty of it should be equally punished.

Mr. CHANEY. If he did it unwittingly it would not be willful, you know.

Mr. OGILVIE. It is impossible for a publisher to make an "unwitting" affidavit of that sort. The publisher knows where the article that he is publishing is manufactured. I have been a publisher for a great many years, and I know where the articles that I am turning out are manufactured. It is possible for him to make an affidavit that is literally and absolutely true in regard to the place of manufacture of every article that he produces.

Senator MALLORY. Where he willfully makes a false affidavit it is equivalent to perjury, and the penalty for that is generally imprisonment in the penitentiary.

Mr. OGILVIE. Then why change the penalty in this law? It certainly limits his liability under this act.

Mr. CURRIER. There is not any liability at all. No affidavit is required. There is no penalty for a false statement at all under the law now.

Mr. OGILVIE. Not as it is at present, but as this new law proposes it there is a liability.

Mr. CURRIER. This was a bill that passed the House last winter and was not reached in the Senate.

Mr. OGILVIE. Well, the facts are here.

The CHAIRMAN. It was reported favorably by the Senate committee.

Mr. CURRIER. Yes; and not reached.

Mr. OGILVIE. Section 19, the last portion of that section, reads:

_And provided further_, That should such subsisting copyright
have been assigned, or a license granted therein for publication
upon payment of royalty, the copyright shall be renewed and
extended only in case the assignee or licensee shall join in the
application for such renewal and extension.

Mr. PUTNAM. That provides for the extension of the existing copyright for an additional term.

Mr. CHANEY. What is your suggestion on that?

Mr. OGILVIE. That the gentlemen who framed this bill, and who wished to let themselves out of the penitentiary for committing perjury, would be likely to make a very liberal arrangement with the author, or his widow or children, if it was within his power to refuse to consent to a renewal of a copyright. He may have been paying a royalty of 20 per cent, and when the time came for securing a renewal of the copyright he would be likely to say, "I will give you 1 per cent, and if you do not agree to that I will not join the request for an extension of the copyright." I think that is wholly beyond the province of this act.

Mr. CHANEY. Whose consent should be required?

Mr. OGILVIE. Eliminate the publisher. He has no concern with it. The Constitution does not grant him any rights under the copyright law. He is not the "inventor" or the "author." Eliminate the publisher wholly, unless you desire, in case there may be an investment there that the publisher desires to protect, to let the author take care of that by contract, so that at the expiration of the copyright the publisher may have the right to continue the publication on the payment of the same royalty.

Mr. CURRIER. Can you suggest an amendment to carry out your idea in the matter?

Mr. OGILVIE. Yes, sir.

Unless the publisher shall agree to pay at least the same royalty
for an extension of the copyright as has been paid during the
previous years, the author shall have the sole right to apply for
and secure an extension of copyright.

Mr. CHANEY. You are really talking against your own interests as a publisher just now?

Mr. OGILVIE. I am, absolutely, talking against my interests as a publisher.

Mr. SULZER. Do you contend that this provision would apply where the publisher had no interest in the publication beyond the ordinary time of copyright?

Mr. OGILVIE. That is all; it shall apply only to that case.

Mr. SULZER. I construe this provision in here to be just what you say.

Mr. OGILVIE. No; I read it differently from the way you do, and place a different construction upon it. We will again refer to it and see if I am wrong. If I am wrong, I shall be glad to be put right, and if you are wrong, I know that you will be glad to be put right.

Mr. SULZER. It says here unless the assignee or licensee shall join in the application. If a man is an assignee or licensee he has an interest in the copyright.

Mr. OGILVIE. He takes it for the time limit only.

Mr. SULZER. If he is not he has no interest, and would not have to join with the widow or children in this application for an extension of the copyright.

Mr. OGILVIE. But if he is the assignee or licensee then he is interested in it only during the life of the copyright.

Mr. SULZER. I do not understand it that way.

Mr. HINSHAW. How could the licensee have any interest in the copyright beyond the life of it?

Mr. SULZER. He would have an interest in it so far as it could be extended.

Mr. OGILVIE. Why should he?

Mr. BONYNGE. He has not. There is no provision now for the extension, and he would not have, except as he might get it under this bill.

Mr. CAMPBELL. He would provide for that in his contract.

Mr. OGILVIE. Yes. Leave it out of the law.

Mr. CAMPBELL. When the assignment was made, he would provide for all extensions.

Mr. OGILVIE. That is right.

Mr. HINSHAW. Are these contracts for royalty made to include a possible extension of the copyright?

Mr. OGILVIE. Not generally; because the author may be dead when the time for the renewal comes.

Mr. CURRIER. But it can be renewed then by his widow.

Mr. OGILVIE. But they do not do it generally.

Mr. CURRIER. I should suppose that in almost all cases under the existing law they would get a renewal.

Mr. OGILVIE. They do at times, but not often.

Mr. SULZER. I think I understand what you mean, and that is this: That where there is no subsisting contract, then that the publisher shall not join----

Mr. OGILVIE. The publishers shall not be required to join.

Mr. SULZER (continuing). In the application for the renewal of the copyright?

Mr. OGILVIE. Yes. As this is, it makes it impossible for the author or his widow or children to secure the extension of the copyright without the licensee joining. Then he has it in his power to diminish the royalty paid to suit his own purpose.

Mr. CAMPBELL. If the contract for the copyright does not provide as between the author and the publisher for any renewal, what position would you be in then?

Mr. OGILVIE. According to this law it is impossible to get a renewal unless the licensee joins in the request.

Mr. CAMPBELL. The license expires----

Mr. OGILVIE. But the license does not expire until after the copyright expires.

Mr. CAMPBELL. What is the length of your contract that you usually make?

Mr. OGILVIE. This is a new provision entirely.

Mr. CAMPBELL. Under the old law, I mean?

Mr. OGILVIE. Under the old law it usually lasts as long as the copyright lasts.

Mr. CHANEY. You suggest that we leave out this last proviso absolutely?

Mr. OGILVIE. Yes, sir.

Mr. BONYNGE. Not to leave it out absolutely----

Mr. OGILVIE. I think it should be left out altogether. It is wholly unfair to an author. I can see no reason why the publisher should have any right of that kind. The Constitution grants the right to an author, and if the publisher desires to secure those rights that is a matter of contract. Let him make a contract covering that point.

Mr. HINSHAW. If the copyright had been assigned, the original proprietor would have lost all interest in the copyright; would he not?

Mr. OGILVIE. The party who now takes a copyright takes it with the understanding that it shall expire at a certain time; and then he is in no better position and no worse than any other publisher who has not had a contract with the author.

Mr. CHANEY. Suppose your contracts under this bill, should it become a law, should provide for the life of the copyright, together with any extensions thereof--then what would you say as to the proviso?

Mr. OGILVIE. Suppose the bill should provide for the life of the contract, together with any extension thereof?

Mr. CHANEY. Suppose under this bill, should it become a law, your contracts with the author should provide for the license and assignment to extend the copyright during its life and all extensions thereof?

Mr. OGILVIE. If the author wishes to make a contract of that sort, that is the author's business; but let the author thoroughly understand what he is doing. As it is here, the author may think he is entitled to the license for a renewal term, whereas he finds the publisher has it wholly within his hands. The publisher is not entitled to it; it is not his.

Mr. SULZER. After all, it resolves itself down to a mere question of contract?

Mr. OGILVIE. Yes; but this eliminates the necessity for making a contract, because this gives certain people rights.

Mr. SULZER. Only where there is a subsisting contract, however.

Mr. OGILVIE. But the contract as at present expressed is for the life of that copyright.

Mr. MCGAVIN. The life is fourteen years?

Mr. OGILVIE. Twenty-eight and fourteen. Now, then, let us assume, under this section, that a copyright expires next year. Let us assume that this bill passes, that a copyright expires next year, and that I am the author of a certain book. I go to my publisher and say: "Here under the law I am entitled to a renewal of the copyright for my book for a term of fifty years in all, or during my life, or whatever the term may be." The publisher replies: "Very well; you want me to join in the securing of that extension, do you?" "Yes." "Well, I have been paying you 20 per cent royalty; I will pay you 2 per cent hereafter, and if you do not take that I will pay you nothing." Is it impossible to suppose that some publishers would do that when they carefully provide against going to the penitentiary for committing perjury? I think not.

Another point: in section 15, in the last paragraph, this language appears:

Where the copyright proprietor has sought to comply with the
requirements of this act as to notice, and the notice has been duly
affixed to the bulk of the edition published, its omission by
inadvertence from a particular copy or copies, though preventing
recourse against an innocent infringer without notice, shall not
invalidate the copyright.

Now, let us see where that lands us. How have the public any means of determining whether "the bulk" of the books has contained a notice of copyright? Assume that I get hold of a book that contains no notice of copyright, and as a publisher I reprint it. It may have been an expensive book to reprint. It may have cost me several thousand dollars. What provision is there in this law to reimburse me for having innocently done that which, under the law, apparently I had a perfect right to do? Not any. I think there should be some provision to reimburse a man who does a thing of that kind under an apparent right.

Mr. CHANEY. This is not a case of ignorance of the law; you think it is a case of ignorance of fact?

Mr. OGILVIE. Ignorance of fact. You are not obligated at present to go to the Copyright Office to ask any questions. The book itself is supposed to present all evidence of existing copyright.

Mr. CHANEY. Could you not obtain that information at the office of the Librarian?

Mr. OGILVIE. In regard to that as arranged at present, just to illustrate the point, I will state that I printed a book in Chicago, an English book, apparently published in England, containing no notice of American copyright. I spent several thousand dollars in getting the book out, and have spent several thousand dollars since then in lawyers' fees. The point was this: The book was published under one title in the United States and under another title in Great Britain. It contained no notice of American copyright.

In an excess of caution I communicated with the Librarian of Congress asking whether a copyright existed on that particular book, by title, in either the name of the English publisher or the name of an American publisher, whose name also happened to be on the title-page of the book; and I was informed that no copyright existed. I reproduced the book. Judge Kohlsaat, in the Federal circuit court of Chicago, decided that I was strictly within my rights. The circuit court of appeals reversed his decision and has refused a rehearing, and we must, consequently, take the matter to the Supreme Court. Now, I claim that under the law a man who does that is entitled to compensation.

Mr. PUTNAM. Excuse me just a minute, Mr. Ogilvie; will you permit, Mr. Chairman, the register to say a word?

The CHAIRMAN. Certainly.

Mr. PUTNAM. It is simply in answer to Mr. Ogilvie's intimation that he answered his inquiry, and that his inquiry was whether a copyright existed upon that book. What was the answer that he got from the office of copyright?

Mr. SOLBERG. The only purpose in making any remark on that point is that there shall not be a misunderstanding as to the nature of the replies to such inquiries. Any matter of fact on record in the copyright office is always at the disposal of any inquirer, but the copyright office is very careful not to undertake to state the termination of any copyright. It simply gives facts as to the registration of title or whether it has discovered any. In fact, it is very careful not to say even that there is no registration, but that the indices of the office and the records of the office after careful search do not disclose any.

Mr. CHANEY. Mr. Ogilvie is substantially right in his statement, then.

Mr. OGILVIE. And at this time I wish to publicly thank Mr. Solberg and Mr. Putnam for the uniform courtesy with which they reply to all inquiries that are addressed to their office. The gentleman is quite right. That was exactly the phraseology used in his reply. But that, I beg to submit, is the only source of information that publishers have; and when they get that sort of information they are justified in proceeding along lines indicated thereby.

I say that every edition of a book that is copyrighted under the United States law should contain notice of copyright, irrespective of where it may be printed, and thus give the public due notice.

Senator MALLORY. Let me ask you in regard to that instance that you speak of in your experience. That book had two different titles, you say?

Mr. OGILVIE. Yes, sir.

Senator MALLORY. That is, there was an English publication under one title and an American publication under a different title?

Mr. OGILVIE. Yes.

Senator MALLORY. Were they identically the same book?

Mr. OGILVIE. No; not identically the same book, even.

Senator MALLORY. Which title did you publish under?

Mr. OGILVIE. Under the English title.

Mr. SULZER. Was the subject-matter different?

Mr. OGILVIE. The subject-matter was different. A portion of it, consisting of some 500 pages, was alike, but a considerable portion of it was different.

Mr. HINSHAW. The English book was copyrighted in the United States?

Mr. OGILVIE. The American book was copyrighted in the United States. The English book contained no notice of copyright, and I may go further and say----

Mr. SULZER. Did you publish the English book?

Mr. OGILVIE. We published the English book. I may go further and say that the American publisher, by contract, agreed to the elimination of the American copyright mark; and he did that for this reason: The people who live in Great Britain refuse to buy, if they can avoid it, American books. I have had opportunities to sell several thousand copies of my copyright books, provided I would leave out of them the American copyright notice. I have in my office in Chicago at the present time a great number of American copyright books that have been printed in the United States and sold to publishers in Great Britain, who required the elimination of the American copyright notice; and the American publishers were foolish enough to comply with that request, thereby, in my humble judgment, vitiating their copyright. I say that in the case of an American copyright book the public are entitled to be informed, not merely by the insertion of the word "copyright," but by the insertion of the word "copyright," together with the date on which the copyright was taken out and the name of the person who took it out, exactly as the law is at present. It is not enough to simply substitute the word "copyright;" it means nothing.

Mr. CURRIER. Suppose in the case you have referred to you began to publish this book without any knowledge that it was protected by copyright? Could you not go right on and publish and sell that book?

Mr. OGILVIE. The courts have enjoined me.

Mr. CURRIER. If this law is passed, could you not do that? Let me read it. (Reading:)

"It's omission"--that is, notice of copyright--"by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice."

You are an innocent infringer; you can go right along and dispose of the books. That is your case; that is your defense in any proceeding against you for selling these books.

Mr. OGILVIE. Yes.

Mr. CURRIER. But it does not invalidate the copyright as against all others, nor prevent recovery for an infringement against any person who, after actual notification of the copyright, begins an undertaking to infringe it.

Mr. OGILVIE. Well, will you tell me what this means--"shall not invalidate the copyright?"

Mr. CURRIER. Why, the copyright exists as against everybody but you in that edition of the book.

Mr. OGILVIE. Very well, if that is the case.

Mr. CURRIER. But if this bill passes, you would have a right to go on and complete the edition of the book and sell it.

Mr. OGILVIE. If that is the construction that the courts give it, very well.

Mr. CURRIER. There can not be any doubt about the construction. It is only the man who, after actual notice that the copyright exists, begins an undertaking to infringe it who is affected.

Mr. OGILVIE. I read that section very carefully, and I see the point that you raise; but I could not----

Mr. CURRIER. I think this gives you full protection.

Mr. OGILVIE. I could not get over the statement, however, that it did not invalidate the copyright.

Mr. CURRIER. But it does not invalidate the copyright.

Mr. OGILVIE. As applied to everybody else?

Mr. CURRIER. To anybody who has notice before he begins.

Mr. OGILVIE. Very well. Now, then, with regard to the insertion of notice, to get back to the subject, I consider that the insertion of the notice is essential. If we are ashamed of the United States, if we must cater to England, and France, and Germany, and other nations by the elimination of a notice that indicates the origin of our books, why do we desire to protect their authors?

Mr. CURRIER. Oh, this omission that is referred to is a mere inadvertence in a particular copy.

Mr. PUTNAM. I understand now, Mr. Chairman, if you will permit me, Mr. Ogilvie, it is in aid of your statement----

Mr. OGILVIE. Yes.

Mr. PUTNAM. I understand now that Mr. Ogilvie is referring to the requirement as to the notice being in terms limited to the edition sold in the United States.

Mr. OGILVIE. Yes.

Mr. PUTNAM. And it does not extend to any edition that may be produced and sold abroad?

Mr. OGILVIE. Yes.

Mr. PUTNAM. I understand that you think that it ought to be on all authorized editions of books?

Mr. OGILVIE. All authorized editions. The copyright law says that the notice shall go on the title-page or the page immediately following. You turn to any book, and what do you find on the page immediately following? Practically nothing, unless the copyright notice is there. There is plenty of room for it. If they can engrave the Lord's prayer on a three-cent silver piece, there is certainly room enough to put those half dozen words on the back of their title-page.

In regard to the publication of books under two titles, it seems to me that some provision should be made in the law to protect a man who publishes a book that is printed abroad under one title and is printed in this country under another, provided the foreign edition does not contain notice of copyright. As it is to-day, and as it will be under this law, one can import a book printed in England; it may have been written on the same subject as that which you intended to produce a book on; you have carefully warned your editors to abstain from making extracts from a book that is printed in this country or that contains a notice of copyright. You proceed. Your editor finds a book in a library that does not contain notice of United States copyright. It is published abroad by a publisher different from the one who issues it here. There is nothing to warn him. He makes copious extracts, and the owner of the copyright may be perfectly well aware of the fact that he has made those extracts. Under this law as it is proposed, he may permit that infringement to continue for three years and then claim damages, not less than one dollar a copy, although the book may have been sold for 10 cents per copy, and practically put the apparently infringing publisher, who acted in perfect good faith, out of business. It is unjust; and I submit, gentlemen, that those matters are proper subjects for consideration, and that they should not be enacted into a law in their present form.

Now, to refer to some of the remarks made by my predecessor, Mr. Olin. He said that the American Publishers' Copyright League and the American Publishers' Association represented practically all of the publishers of the United States. I differ distinctly and materially with him. They do not. They represent a few and only a few of the publishers of the United States. I doubt very much if a single publisher west of the Alleghenies (with very few exceptions) is a member of either of those associations. There may be a few exceptions--I know now that there are--but very few, and he is not qualified to speak for the others who are not members of those associations, and they do not represent a majority.

In regard to importation, he said that Scribner would be very glad to import a book if he were requested to do so. Now, I am a publisher, and if it were my book I do not think I should be very glad. I think I should tell the intending purchaser that I had a copy of the book that was at his disposal for the fixed price that I had placed upon it, and I think Scribner would do likewise.

In regard to cheap editions, which he spoke of and said that at the end of the copyright a publisher was desirous of securing as large a circulation as possible for his books--that is true within a year or two of the end of the term of copyright. But I can not recall at this moment a single book the price of which has been reduced materially until so close to the end of the term of copyright as to make it practically valueless to the original publisher unless he did reduce the price; and he does it, not for love of the public, not because he is considering the public, but simply to get ahead of his fellow-publisher. He is the man who then has a couple of years in which to exploit a cheap edition; and it seems to me that under the law as it is suggested, a term of fifty years from the date of the death of the youngest of the authors is going beyond what the framers of the Constitution decided was a limited time. Let us assume that Mark Twain, if he were 80 years of age, were to write a book. He has his daughter, who may be 20, write a few lines in that same book. Mark Twain dies in a few years; she lives to be 90. There is seventy years of copyright, and fifty years after her death, making one hundred and twenty years. I do not believe that that is a "limited time" within the meaning of the phraseology of the Constitution. [Laughter.]

Mr. CHANEY. That is the joint-author clause.

Mr. OGILVIE. There is just one point that I had overlooked. I was not at any of the conferences, but I have been informed that an attorney representing certain of the special interests at those conferences suggested that the public should be considered; and to quote literally what I was told as to what happened, "he was hooted at and laughed down." And I think that very fully expresses the sentiment contained in this proposed copyright act, so far as the public are concerned.

I thank you, gentlemen.

STATEMENT OF FRANK H. SCOTT, ESQ., PRESIDENT OF THE CENTURY COMPANY, NEW YORK, AND PRESIDENT OF THE AMERICAN PUBLISHERS' ASSOCIATION.

Mr. SCOTT. Mr. Chairman, I only wish to clear up two points that have been raised by my predecessor. I am not responsible for the exact wording of the clauses covering these two points, but I do wish to emphasize their importance.

The first is as to the question of the original publisher's rights at the termination of the present contract or the present copyright. Under the law as it now stands, at the termination of the copyright the publisher would have a set of plates and possibly a large number of books on hand. He can enter the market, no matter who comes into the field, and compete on at least equal conditions.

Under the bill as it is proposed now, if the author secures a continuation or a renewal of his copyright, and the publisher is not consulted the publisher would be left with his set of plates and his investment in the sheets and stock; and it would be absolutely impossible for him to sell them to anybody, because his contract having expired, and the author may have gone and made a new contract with a new publisher, leaving him entirely out of it. If there is no copyright whatever he can compete on equal terms.

I am only explaining why I think the publisher ought to have some consideration under those circumstances.

Mr. CURRIER. What do you say to the amendment suggested by the gentleman who last spoke?

Mr. SCOTT. Just what was that amendment?

Mr. CURRIER. That the publisher might have the right to control the extended term, provided he would pay the same royalty that he had paid.

Mr. SCOTT. I think the publisher ought to be obliged to pay the same royalty that anyone else should pay at that time. It might be a very old work. It might be that the time during which he could continue to pay that royalty had expired.

Mr. CURRIER. You could hardly set the right up at auction, could you?

Mr. SCOTT. I am sorry to say it is very often done.

Mr. CHANEY. Would you not think that would give the publisher an undue advantage over the author?

Mr. SCOTT. I think the law as it is at present framed is very broad. I only wish to say now that I think the publisher ought to be consulted. I suppose this will come up later, and I have not prepared any argument on the subject. I am only pleading that the publisher ought to have some consideration under those circumstances.

Mr. CHANEY. Can not the publisher provide against all that by the contract he makes?

Mr. SCOTT. There will be no trouble about the copyrights taken out after the passage of this bill. It is only with reference to copyrights that are now in existence.

Mr. CHANEY. Yes.

Mr. BONYNGE. You think the language of the bill as it is is too broad?

Mr. SCOTT. I think so. I think I should not have made it, myself, quite so broad.

The other point I wish to make is with reference to the publication of the American copyright notice in editions of an American copyright work which are published abroad. What the gentleman has said might be very true if the matter were always within the control of the publisher of the American edition, but, as you will readily see, it is not always within his control. These books are very often written by a foreign author. The contracts of the foreign author, for instance, in the case of English novels, are made with his own publisher in London. They have their own arrangement between themselves as to what notice shall be put in the book. The American publisher is forced to place in his own books published in this country the American copyright notice, but he has no control as to what notice shall be placed upon books published in Germany, or in France, or in Spain, or in Russia, or in England. It is entirely beyond his control.

Mr. CHANEY. Would you think the terms of this bill, then, are right?

Mr. SCOTT. I should say the terms of this bill are right. It seems to me it is perfectly possible for anyone desiring to reprint a book in the United States to ascertain whether or not it is copyrighted. Indeed, the general facts about any book which is so important that anyone wishes to reprint it are notorious. It is known or it can be easily ascertained whether the book is published in the United States and whether it is copyrighted in the United States or not. And I do not think that anyone should be able to get hold of a single copy, whether printed abroad or printed in the United States, that does not happen to have the copyright notice, and be permitted to go ahead and reprint the book _ad libitum_. I think the rights of the owner would not be sufficiently protected if that were permitted.

Mr. MCGAVIN. What do you say about the case of the gentleman who just preceded you--the lawsuit into which he got himself?

Mr. SCOTT. That has been determined in the courts; it is not for me to say. One judge decided that he was right, and the judge to whom the case was appealed decided that he was wrong.

Mr. MCGAVIN. He seems to have made all the necessary effort to find out whether there was a copyright or not.

Mr. SCOTT. That book, as I happen to know, was an edition of one of the dictionaries, otherwise known as Webster's Dictionary. I think it was perfectly easy for him to find out whether that book was copyrighted in the United States or not. It is not for me to say whether there was any technical omission which endangered the copyright under the language of the present statute; but it does seem to me that in books generally published outside of the realm of the United States, and beyond the jurisdiction of the United States, it should not be necessary for the American publisher, who owns the copyright or who represents the owner of the copyright, to go abroad and undertake to make arrangements of this kind. It might be very difficult for him to make arrangements for the publication of the American copyright notice on foreign editions which he does not print himself and which he does not arrange to control.

Mr. CHANEY. Mr. Chairman, I want to make a suggestion about the form of expression of that clause on page 12. You will notice that in the last line of that second paragraph of section 15 the word "undertaking" is used. I do not know whether people generally understand the use of that word "undertaking" as lawyers in my part of the country do, but I would prefer the word "action" rather than "undertaking," because "undertaking" usually refers to a bond of some kind. "Action," it seems to me, is the proper word.

Mr. PUTNAM. That is page 12, line 18, is it not, Mr. Chaney?

Mr. CHANEY. Yes. The word "undertaking," you know, is used by lawyers generally in the sense of a bond or some agreement to stand good for the default of another, whereas "action" is the name of the suit.

Mr. PUTNAM. This was not intended to apply to a legal action.

Mr. CHANEY. But is it not in the same nature?

Mr. PUTNAM. No; it was simply meant to apply to the beginning of some enterprise, the beginning to prepare to manufacture. It is a business undertaking, not a legal one.

Mr. CHANEY. I misunderstood it, then.

Mr. BONYNGE. That is what I understood it to be--an enterprise.

Mr. CURRIER. You might let the two words go out, so it would read, "who, after notification of the copyright, begins to infringe it." Then it would be a question of fact.

Mr. PUTNAM. Mr. Chairman, you have asked me to announce that it will be the desire of the committee to have the names and addresses of all those present at these hearings, and the relations in which, if they desire to express it, they are here, whether in favor of or in opposition to the bill. We have provided a register at the door in which those names can be noted. I understand that it is desired that that shall extend to all those present.

The CHAIRMAN. All present, and in such form that it may be placed in the record that we are making.

Mr. CHANEY. You mean also to include, I suppose, a brief expression from these people as to their objections, and to what their objections related?

Mr. PUTNAM. Yes. The register will be supplemented by their communications, I suppose--the register itself, including their names.

Mr. Horace Pettit, Mr. Chairman, who spoke yesterday, desires to supplement his remarks with an additional suggestion or two, which he has put in writing, and asks simply to have entered in the record, with your permission.

Doctor Lewandowski, present here, asks me to submit a request in writing from a firm of music publishers in New York, that he submit to you a communication in aid of the provisions for the protection of music publishers against reproduction by mechanical devices. He submits that in writing, with the request that it may be entered on the record.

(The various papers above mentioned will be found at the end of this statement of Mr. Putnam.)

Mr. PUTNAM. The copyright office, Mr. Chairman, is now in receipt, naturally, since the bill has been introduced, of some suggestions from those who have participated in the conferences, and since the bill has been introduced and is in the custody of your committee it would seem that those belong to the files of your committee. If you will permit me, I will submit these, without reading them, to be entered in the record.

The CHAIRMAN. Do you think they ought to be printed in the record of the meeting?

Mr. PUTNAM. I do, Mr. Chairman. I do not refer to mere formal communications, or those that may be disposed of absolutely by the copyright office. I do not mean all communications that come to us with reference to the bill. These are simply four communications, from four participants in the conference. One of them, Mr. A. W. Elson, makes certain definite proposals for amendments, including one to section 13 which would extend the manufacturing clause. He has sent a copy of this to you, Mr. Chairman, and I assume that it will go in the record, with the request for a hearing.

The second is from Mr. Edmund C. Stedman, who was a participant, but is in ill-health, and can not be here; but it contains an expression upon the bill that I think should go in the record.

Another is from Mr. Leo Feist, also a participant, and contains an expression about the bill that he would have made here orally if present. I think that should go in.

Another is from Mr. Ansley Wilcox, who represented certain lithographic interests very much concerned with the protection of such prints as posters, and very much concerned, therefore, in the specifications of subject-matter. He writes a communication which I think should go into the record, expressing his content with the specifications of sections 4 and 5.

The CHAIRMAN. Those will be printed in the record.

(The above-mentioned papers will also be found at the end of this statement of Mr. Putnam.)

Mr. PUTNAM. I have information, Mr. Chairman, that when the matter of the reproduction of music by mechanical devices comes up for discussion, Mr. John J. O'Connell, an attorney of New York, would like to be heard, representing ten manufacturers of automatic piano players in New York City, and desiring to be heard only in opposition to those portions of the bill respecting musical copyrights, and that in connection with the same general subject-matter Mr. Howlett Davis, an inventor of material that enters into these devices, desires an opportunity to make some opening remarks, pointing out how the proposed bill will, if enacted, act in restraint of invention, and show how it encroaches upon the existing patent laws.

If it is your pleasure, now, Mr. Chairman, I would suggest that it would be helpful to have an expression from the librarians dissenting from the assent of the American Library Association with regard to the importation clause, while Colonel Olin's remarks are fresh in mind, and if that is your pleasure, I think it is only fair that I should make clear the status of that provision.

The list of participants in the conference included two associations that might be interested or were certain to be interested in these importation provisions. One was the National Educational Association and the other the American Library Association. These importation clauses concededly contain a restriction, a limitation, a diminution of existing privileges of importations enjoyed by individuals and enjoyed by certain institutions.

The National Educational Association might well have spoken for both individuals and institutions and generally. As a matter of fact, it should be clear that the participation of the National Educational Association in the conferences was of the slightest. They were invited, we urged them to be represented, and they were present by delegate at the first and the second conferences; but their participation was of the slightest. There was no expression from them upon the diminution in the case of individuals, and they contented themselves at the outset with an expression of dissent from any provisions which tended to diminish in any way the present privileges of libraries.

The American Library Association was present by two accredited delegates, who considered, by later action of the representative board of the association, that they had authority to represent the association in assenting to final provisions. Those two delegates were the present president of the American Library Association, Mr. Frank P. Hill, of the Brooklyn Public Library, and Mr. Frank C. Bostwick, of the New York Public Library. Mr. Bostwick was here yesterday, but has had to leave to-day. Colonel Olin's remarks included the American Library Association as one of those associations for whom he could give a general assent to the bill substantially as it stood. Coupled with that, however, should, I think, be before you this entry in the record of our conference in March last. At that conference these provisions were, I believe, substantially (as far as they regarded libraries) as they stand in the bill, except that one proviso has been added, which is rather in favor of libraries, as we understand it, than otherwise. They expressed themselves then thus: