Part 7

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.