Part 13

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_.