Part 10

Mr. CUTTER. I do; yes, sir.

Now, my other reason is a commercial reason; and in order to state it I shall have to go somewhat into ancient history.

About the year 1901 certain publishers of this country formed an association called the American Publishers' Association, and, in conjunction with the American Booksellers' Association, entered into an agreement to control absolutely the selling price of books in this country. It was an agreement among the publishers that they would not furnish books to booksellers who would not agree to sell the books at a standard price--in other words, a trust proposition.

Mr. CHANEY. We have heard of trusts before. [Laughter.]

Mr. CUTTER. The libraries were granted a 10 per cent discount from the price of the class of books affected by this agreement, so-called net-price books. We discovered, however, on examination, that these new prices which were fixed were so much higher that the net result to us was an advance of 25 per cent in the price of the book, and we found that the majority of those books were not books written by American authors, but they were books written by English authors and copyrighted in this country, and that there was a difference in price amounting to the 25 per cent tariff on printed books. So that this question, gentlemen, is a question of trusts and a question of tariff.

Now, the librarians have been getting around that by importing English books, because the same book printed on the other side is sold in the case of these expensive books at a very much reduced price compared with the price on this side. If--I am going back now to my first position--if I am prevented, by the difficulties in getting through, by accident, a copyrighted book, from getting at the noncopyrighted book so long, then I will be forced to go to Mr. Scribner, who will buy the books for me abroad at his price, against my interest.

Senator MALLORY. Do I understand you to say that that book trust is still in operation?

Mr. CUTTER. Certainly.

Now, I am connected with a library that spends $12,000 a year for books in a country town. Of this sum $5,000 is spent for English books. I am a representative of a city government which taxes itself to a certain extent to educate the people in its community, and I object seriously to paying $1,000 of that $12,000 to American publishers as a tax. That is my point.

Mr. CURRIER. What changes in this bill do you suggest?

Mr. CUTTER. I should suggest the entire elimination of that provision.

Mr. CURRIER. Of the entire paragraph?

Mr. CUTTER. No; after the words "United States."

Mr. CURRIER. That was the suggestion I made some time ago--after the words "United States," in line 25.

Mr. CHANEY. Yes; precisely.

Mr. CURRIER. Would that be satisfactory to the people whom you represent?

Mr. CUTTER. That would be satisfactory. I think it would be satisfactory to all librarians.

Mr. HINSHAW. This would allow you to import, however, but one book, whereas you have had the privilege of importing two?

Mr. CUTTER. One book, but we are perfectly satisfied with that. I think any library would be. A ruling of the Treasury Department has held that a branch library is a library itself, so that in the case of a large library wanting a book for each of several branches it would be possible to import more than one.

Mr. CURRIER. With that stricken out, the people you represent would not object to sections 26, 27, 28, and 29?

Mr. CUTTER. No; it does not affect them.

The other point I wish to make is on behalf of another interest. I wish to speak a word in behalf of an interest which is not represented here at all--two interests, in fact. The first is the firms that are in the business of importing books into this country and are not represented and have not been asked to be represented; have not been asked to come to these meetings. There are certain firms that are not in the publishing business that are in the business of importing books.

Mr. CURRIER. I think we ought to say right there, as you say they have not been asked, that the committee invites everybody.

Mr. CUTTER. Yes; I mean up to this time they have not been asked.

Mr. CURRIER. Those who were not represented at the conference, as well as those who were.

Mr. CUTTER. Whether they were asked here or not I do not know. Of course, this being a public hearing, they had a right to appear. But the point I want to make is this: That a great many of our libraries have to import books through these men, because they get a cheaper rate of importation through them than through some of the firms that are also publishers of books. This would prevent the importation of some of these books through those firms. It would practically ruin their English business, largely ruin it; and on behalf of a library that uses that method of importation largely, it seems to me that some provision might be made for other importers than those who are publishers of books.

Those are the only arguments that I wish to present.

Mr. CHANEY. To what section of this bill do you now refer?

Mr. CUTTER. I am referring to the subsection of this same section on page 24--section 30.

Mr. CHANEY. Do you mean subsection E?

Mr. CUTTER. Yes.

Mr. CURRIER. No; the subdivision called "First."

Mr. CHANEY. Oh, I see.

Mr. CUTTER. I suggest this amendment to the clause reading, "When imported, not more than one copy at one time, for use and not for sale, under permission given by the proprietor of the American copyright."

I suggest leaving out the consent of the American copyright proprietor. That changes existing law only in these particulars: It allows the importation of only one copy instead of two copies, as the existing law does; it gives the importer who has established a business here based on legislation, and who is closely in touch--the firms that I speak of serve libraries and learned men mostly with expensive books and have practically no sale to the ordinary public--it would give them an opportunity, and it would give a scholar in this country who wants a book for a particular purpose for his own use and not for sale an opportunity to import it.

Mr. CHANEY. So that if you strike out "under permission given by the proprietor of the American copyright" it satisfies them?

Mr. CUTTER. It would satisfy the request of the importers, who are not publishers.

Mr. CURRIER. Do you appear for the importers?

Mr. CUTTER. I appear for one of them only.

The CHAIRMAN. Do you feel that you are authorized to speak for the others?

Mr. CUTTER. I am authorized to speak for one firm only.

The CHAIRMAN. Do you feel that you represent the other importing firms?

Mr. CUTTER. I do not; no. I am quite convinced that I would be allowed to represent them, but I have had no communication with them.

Mr. BONYNGE. But you think you state their views on the subject?

Mr. CUTTER. I have not any doubt of it.

Mr. CHANEY. You spoke of "ancient history" back as far as 1901. Do you regard anything back behind that as ancient history?

Mr. CUTTER. No; but it is ancient history in the book business. That is when the publishers of this country discovered that the Carnegie gifts had made the library trade so large that they must do something to make some more money out of it.

Mr. PUTNAM. With your permission, Mr. Chairman, I would suggest that Mr. Bethune, representing certain of the reproducing interests particularly--I ought not to limit that by the word "reproducing," but who represented at the conference the Reproductive Arts Copyright League--should be heard.

STATEMENT OF FANEUIL D. S. BETHUNE, ESQ.

Mr. BETHUNE. There are but two or three sections which the Reproductive Arts Copyright League wish at this time to comment upon.

Mr. Millet, on behalf of the artists, has stated that they are satisfied with the sections relating to paintings as they stand, but as I understand it the word "accessible," in section 14----

Mr. CHANEY. Whereabouts?

Mr. PUTNAM. It is the last line on page 10 of the bill.

Mr. CHANEY. I see.

Mr. PUTNAM. It is in the second paragraph in the Library print.

Mr. BETHUNE. That is such an indefinite, uncertain term that we think----

Senator LATIMER. What are you referring to; what term?

Mr. BETHUNE. The word "accessible"--"or if a work specified in subsections F to L, inclusive, of section 5 of this act, upon some accessible portion of the work itself or of the margin," etc.

Mr. CHANEY. Where would you put it?

Mr. BETHUNE. Let it be on some accessible portion, but let the bill provide that it shall be always uncovered. As it stands now, it might be on the back of the painting, and the painting might be in a box, and it would be accessible in a sense.

Mr. CHANEY. You would put in the word "uncovered?"

Mr. BETHUNE. It should be uncovered.

Mr. PUTNAM. Accessible and uncovered?

Mr. BETHUNE. Accessible and uncovered. We want to be able to ascertain at once by examining the painting in the frame, if it is in a frame, whether the picture is copyrighted or not.

Section 9 provides, about the fifth or sixth line, that "in the case of a work of art" the notice "shall be affixed to the original before publication thereof." The word "publication" is not defined, and it has been the source of considerable litigation as to what is and is not publication.

The CHAIRMAN. Has that been settled by the courts?

Mr. BETHUNE. It has not been settled by the courts. There are differing decisions now.

Mr. CURRIER. Is it not ordinarily understood to be the putting on sale of the object?

Mr. BETHUNE. No; I think not--not if it is a private sale. I think a sale should be specifically stated by the statute to be a publication, whether a private or a public sale, and the public exhibition of a painting should be a publication of it.

Mr. CURRIER. Will you suggest an amendment that will meet your idea?

Mr. BETHUNE. I am not prepared to suggest an amendment, but I shall do so in writing to this committee, if I may.

Mr. CHANEY. In a general way, what is your idea?

Mr. BETHUNE. That the statute should state that certain things shall constitute publication of a work of art, and state that publication shall include a sale, whether a public or private sale, and a public exhibition of the work of art.

I must refer again to section 14. That provides that not only in respect of paintings, but also maps and photographs, the notice can be on the back or the margin. Now, so far as a painting is concerned, that is quite satisfactory to us if the notice is to be "uncovered," but in respect of a photograph, which may be very loosely attached to a little piece of pasteboard, and the notice may be put on the pasteboard, which could be very easily removed from the photograph. The reproducer to whom the photograph is then brought, there being no evidence of its having been detached from any mount, may be easily misled, and before he discovers that he is infringing he may have invested thousands of dollars in the undertaking to reproduce it.

Mr. CURRIER. Then your suggested amendment, "uncovered," does not meet this objection, which you now state, at all?

Mr. BETHUNE. It does in respect of the painting, but I do not think that so far as the photograph is concerned the law should permit the notice of copyright to be simply on the thing to which it is attached or mounted. It should be on the photograph itself. I think that that will prevent litigation and expense to both photographers and reproducers.

Mr. PUTNAM. Mr. Chairman, may I ask Mr. Bethune to state whether, under the present law, the notice can be put on the mount of a photograph? Is that your understanding--that it can not be, and that this is an extension of the privilege?

Mr. BETHUNE. I understand that it can under the present law.

Mr. PUTNAM. That it can now; so that this simply repeats the privilege.

Mr. MCGAVIN. An objection was made here yesterday, I think, on the ground that it would deface the photograph.

Mr. BETHUNE. Yes; that objection has been made by the photographers; but I leave it to the intelligence of this committee----

The CHAIRMAN. And in case of a fine picture, for instance, the artist might object to having the words prescribed by this act appearing permanently upon the face of the picture.

Mr. BETHUNE. Yes, he might; but as a matter of fact, I am informed that there are very, very few artists who do not insist upon putting some mark, if not their name, upon the face of their painting.

The CHAIRMAN. Can you call attention to that section?

Mr. BETHUNE. There is no section in this bill providing for the placing of the notice upon the face of the painting; but, I say, there are very few artists, I am informed----

The CHAIRMAN. Where is the section that prescribes the form?

Mr. BETHUNE. Section 14.

Mr. MCGAVIN. On page 10.

Mr. BETHUNE. It may be simply a "C," with a little circle around it.

Senator MALLORY. Do you object to the word "accessible" here, on line 10?

Mr. BETHUNE. Yes; the word "accessible."

Mr. PUTNAM. Except as coupled with the word "uncovered."

Mr. BETHUNE. Yes.

Mr. MCGAVIN. If this language were made to read "accessible and uncovered," it would necessarily, then, require that it be placed upon the face of the photograph or picture, would it not?

Mr. BETHUNE. No; I think not.

Mr. MCGAVIN. You could not put it on the back, where it would be uncovered?

Mr. BETHUNE. No; I do not think that that would be covered----

Mr. CAMPBELL. How about the word "visible?"

Mr. BETHUNE. "Visible" was the word which I suggested at the conference. I do not know why it was not put in.

Mr. PUTNAM. I may say, Mr. Bethune, if you will permit me, Mr. Chairman, that this question of notice was a long-discussed question between the artist group and the committee of the reproduction group; and they started, of course, at very opposite extremes. We understood finally that they reached this point: That in the first place there should be a notice. That was a concession on the part of the artist group, who thought there ought not to be any notice except their own name. That there should be a notice--that is, something to indicate copyright, even if it should be only "C" within a circle--was insisted upon by the reproducing group. So that it was agreed that there should be something to indicate copyright. Where should it be?

Now, the present statute uses the term "visible;" but the reproducing group said (if I am wrong, Mr. Bethune will correct me): "We do not care that it shall be visible in the sense that he who runs may read it. We do not care, even, that it shall necessarily be on the front of the painting. It may be on the back of the painting. It must not be on the frame, because the frame is a detachable thing. People's tastes as to frames differ, and one collector likes one, while his successor may prefer another, and he will change the frame, and with it goes the notice. It must be on the thing itself"--that was their contention--"but it may be on the back."

Now, if it is on the back, is the word "visible" descriptive? We wanted to get some word that would indicate that it might be put in some place where it could be found by somebody looking for it, and that was the requirement of the reproducer that somebody with a sincere desire, not with a malicious intention to appropriate it, but with a sincere desire to find out whether it was copyrighted or not, might find out with a reasonable search intending to look for it. That was satisfactory to them and that was the endeavor in using the word "accessible."

Now, it is that little doubt which Mr. Bethune has suggested to you. Would it cover the back? And would it cover and prevent a case of covering it up? The notice might be covered up. So he has suggested the addition of the words "and uncovered," but the use of the word "accessible" rather than the word "visible" was to endeavor to express what we understood to be agreed to, as the agreed intention.

Mr. BETHUNE. I think it will express it if "uncovered" is added.

Mr. PUTNAM. I should add that the reproducers definitely objected to the privilege on the part of the photographers, and so on, the print publishers, etc., of putting the notice on the mount; but of course it was understood that they had that privilege at present. They have that privilege at present, but the reproducers never thought that that was reasonable, and did not concede it to be reasonable.

Mr. BETHUNE. Now, reproducers are open to fraudulent attempts to sell to them copyrighted works by simply removing the notice of copyright, and section 25, in the draft of the bill, imposes simply a penalty of $100 as a minimum and $1,000 as a maximum fine for the removal of this notice. We think that the punishment should be imprisonment as well as fine. We want to protect ourselves from that fraud, which is very frequently encountered.

Mr. CHANEY. So that that paragraph of that section as it stands is satisfactory to you?

Mr. BETHUNE. Section 25, sir?

Mr. CHANEY. Yes.

Mr. BETHUNE. No. We want, as well as a punishment by fine of not less than $100, the words inserted "or imprisonment" or "and imprisonment," both for a specified term; it is not material how long it shall be.

Mr. WEBB. Have you suggested your amendment to this section 14 that some word instead of "accessible" should be used? Did you suggest "visible"? Was that your idea?

Mr. BETHUNE. That was the word which we did suggest, but "accessible" is satisfactory to us if "uncovered" is coupled with it.

Mr. WEBB. You want it to read "accessible and uncovered"?

Mr. BETHUNE. Yes.

Mr. WEBB. Would that apply to a magazine picture--a picture in a magazine that had the notice on the back of the original? You could look for it, and it would be uncovered.

Mr. BETHUNE. In the case of a magazine, as I understand, it would be covered by the copyright of the magazine.

Mr. WEBB. Well, that is all right; I did not understand how that would be.

Mr. BETHUNE. Those are the principal features----

Senator MALLORY. I would like to ask you with reference to that suggestion which you were referring to in regard to publication in the matter of a work of art, or a plastic work or drawing. Is there any definite suggestion that you could make, any definite change, so as to convey your idea? I think I know what you want; but it seems to me it is going to be pretty difficult to use an expression there that will convey the exact idea that you desire. Now, in the matter of a work of art, as long as it remains in the hands of the creator of it, one would think it would not be necessary, but it was suggested to me by the chairman here that even the maker of the work of art might want to copyright it, although he did not intend to sell it; he would want to prevent people from infringing on it.

Mr. BETHUNE. Precisely.

Senator MALLORY. And yet there would be no publication; he could keep it in his own library.

Mr. BETHUNE. He has the right to copyright it at any time he pleases, before publication.

Senator MALLORY. I know that; but the point is, What does the word "publication" here mean? And I would like to know, if you have given the thing any thought, if there is any suggestion you could make?

Mr. BETHUNE. Yes, sir; I think the term "publication" should be explained. I do not think we can define altogether what "publication" is; but we can state that certain things shall be included within "publication."

Senator MALLORY. What is your suggestion?

Mr. BETHUNE. I think that sale, whether a public or private sale of the painting, and the public exhibition of the painting, should be construed as a publication.

Mr. WEBB. You suggest inserting after "original" "before publication, exhibition, or offering for sale?"

Mr. BETHUNE. No, sir; I should let "publication" stand there, but I should qualify or partially define in another section what "publication" is----

The CHAIRMAN. Is there not danger in making such definition?

Mr. BETHUNE. No; I think not, if you state what it shall include, or rather what shall be included in it.

The CHAIRMAN. Suppose we define publication in the manner you suggest, would there not be difficulty in cases not covered by that definition?

Mr. BETHUNE. I think not, sir.

The CHAIRMAN. Might not the courts construe that definition as covering all classes of publications?

Mr. BETHUNE. Not if the statute specifically states that those expressions are not meant to be an exact definition of all that publication includes, and I think that can be very easily done.

The CHAIRMAN. We would be very glad to have your suggestion on that point.

Mr. BETHUNE. I should be very glad to submit it if you will be kind enough to permit me to do so.

There are some other matters which I do not care to take up your time with now, and will do so in writing.

Mr. CHANEY. Is your idea of expressing and defining "publication" for the purpose of limiting the word "publication?"

Mr. BETHUNE. Not altogether; no, sir. I think that both the reproducer and the artist should know the exact situation at the very outset. If the artist exhibits a painting in a gallery and people pay fifty cents or nothing to go in and look at the painting, although there is a restriction, perhaps, made by the artist upon copying that painting, when the painting goes to that exhibition he should know at once, and the reproducer should know, that that being a public exhibition is a publication of the painting, and if the copyright notice is not on it then the artist has lost entirely the right to copyright it entirely.

Mr. CHANEY. You are aware of the fact that if you undertake to define "publication" you do limit it to whatever you say it is?

Mr. BETHUNE. I do if I attempt to fully define it, but I should not attempt to so define it. I should attempt to say that certain things should be embraced in the term "publication."

Mr. CHANEY. Do you not thereby exclude everything else?

Mr. BETHUNE. No, sir.

Mr. PUTNAM. If Mr. Bethune will permit me, Mr. Chairman, the attention of the committee may not have been called to the fact that there is a definition of the date of publication where copies are reproduced for sale or distribution. That is in section 63. It is limited to that because, after discussion, the conference did not seem to be able, or none of our advisers seemed to be able, to suggest a definition for "publication" in the case of works of art, for instance, of which copies are not reproduced. It seemed to those who were advising us a dangerous thing to attempt.

Mr. BETHUNE. I think it would be, and I would not undertake it, but I think you will save trouble and expense to both the artists and the reproducers if you will say that the sale, whether private or public, and the public exhibition, shall be a publication of the painting.

Mr. WEBB. That is what I asked you a while ago--if you did not think, speaking of "publication" here, that it would be sufficient if you were to let it read "public exhibition or offering the same for sale," either public or private sale?

Mr. BETHUNE. To be included in the term "publication."

Mr. WEBB. But can you think of any other instance where publication would mean something else than those things?

Mr. BETHUNE. No; I can not for the moment, but I think there is danger, as the chairman has just stated--there may be many things which do not occur to me now, or would not occur to this committee, which should be contained in a definition.

Mr. WEBB. I think you would complicate it very much if you used the word "publication" generally, and then undertook to define "publication" also, and intended that "publication" should cover more points than you specified.

Mr. BETHUNE. Why, sir, this bill starts in and says that all the works of an author may be copyrighted. It then specifies some of the things, and it then says that the things specified are not all that may be included.