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THE AMERICAN PUBLISHERS' COPYRIGHT LEAGUE,
New York, April 4, 1908. MY DEAR SIR: I shall be glad if it may be found practicable and convenient to include in the record of the recent copyright hearing the supplementary statements which were prepared in accordance with your suggestion or instructions, and which have been forwarded by me from New York after the close of the hearings. If this course can be taken, I should be glad to have replaced the memorandum sent three days back in regard to the provisions for the importation of copyright books with the corrected copy inclosed herewith. Respectfully,
G. H. PUTNAM. Hon. REED SMOOT, Chairman Senate Committee on Patents,
Washington, D. C.
Memorandum submitted by G. 1. Putnam, secretary of the Publishers' Copyright
League, on behalf of the authors and the publishers interested, in regard to the proposition to modify section 34 of the Smoot bill, pages 18 and 19, relating to the importation of copyright books.
1. The first section of the bill in question undertakes " to secure for the author and for his assign the exclusive right to print, reprint, publish, cops, and vend the copyrighted work." This provision is in line with the equivalent provisions of all of the American copyright statutes, and it is in substantial accord with the provisions of all the copyright statutes of Europe which undertake, in like manner, to secure for the producer of the copyrighted works and for his assign the exclusive control of the production and the full advantage to be derived from it.
2. In no one of the European copyright statutes is this complete control impaired or interfered with in any manner by other provisions in the statutes. Until 1891 it was the case that the American law was, in like manner, consistent in maintaining for the producer of the copyrighted article and for his assign the full control of the thing produced.
3. In 1891, during the last hours of the session, a clause was introduced into the copyright bill then pending (the chief purpose of which bill was to extend to foreign authors the privilege of American copyright and to secure for American authors equivalent copyright provisions in Europe) which conceded not only to incorporated institutions, libraries, and others, but to all classes of associations, and also to all individuals without restriction, the privilege of importing without reference to the permission of the owner of the copyrighted work, copies of foreign issues of such work.
4. The provisions of the copyright act of 1891 were discussed at very full length during a term of nearly five years. The proposal to free from the restrictions of copyright associations and individuals was never brought before the various conferences or committees which had the responsibility of the shaping of the bill, nor did it come up at any one of the several hearings given to those who were interested in copyright by the committees of the House and of the Senate. This material change in the copyright statute of the United States was arrived at without any opportunity being offered to those whose property was affected, or was in fact being undermined, to be heard in regard to the necessary working of such an unrestricted importation, or in defense of the property rights which, in form at least, the statute had undertaken to secure for them.
5. The bill as shaped in the Senate under the direction of Senator Smoot's committee, and in the House under the committee of which Mr. Currier is chairman, has, in the provision having to do with the matter of importation, brought the law back to the condition prior to 1891 and into line with the equivalent provisions of the European statutes. It provides, namely, that such importations by individuals of works that have secured American copyright shall be made only under the authority of the owner of the copyright or of his assign.
6. It is the contention of the authors and of the publishers that the copyright statute undertakes to give control of the market, and that the author and his assign shall be secured in a full property right in such market. It is proposed by those who undertake to insert in the pending bill a slovenly and ill-considered, or rather unconsidered, provision of the act of 1891, that the American
citizen should enjoy in regard to copyrighted books full “liberty of action." It is pointed out that the exercise of such “liberty of action" involves the appropriation of the property rights of other people, namely, the author and his assim. An American publisher who has purchased from an author, whether American or foreign, the American copyright is entitled to be protected in the control of the market that he has purchased. If the author is not placed in a position, under the law, to secure to his assign the full control of such market, the value of that which the author has to sell is of necessity lessened, and the price that he can secure for the same must be smaller than would be given for a market to which the title was secure.
7. It is the theory of the law of 1891, which theory is maintained in the pending bill, that the works of the authors of states in copyright relations with the United States are placed on precisely the same footing in regard to copyright protection as those of American authors. The author, whether foreign or American, must be in a position to assign a full title or his own receipts are of necessity 'diminished.
8. The American publisher who divides with an English publisher a literary undertaking may be called upon to pay one-half of the amount due to the author for his work. The English publisher secures through his payment not only the exclusive control of the territory in the British Empire, but, under the existing American statute and under the change as now proposed in the pending bill, the right to sell without restriction copies of his edition of this Americau copyrighted work to all classes of buyers in the United States, excepting only booksellers.
9. There is, of course, no logical reason why the bookseller alone should be restricted from a privilege which is extended to the community as a whole. There is also no reason why reader B, who not being fortunate enough to have connections with London, is obliged to buy his books through an American bookseller, should be placed under a restriction which is not in force for reader A, who may possess such London connection. Such a distinction constitutes a discrimination under the law.
10. There is also no reason why the English publisher, or the English bookseller, should in this matter of supplying in the American market copies of American copyrighted books, be given a privilege which is denied to the American publisher in the English market, and which is denied to the American bookseller in his own market. Such a provision of American law has the result of giving a direct commercial advantage to the foreign dealer, and may be described as “boomerang protection."
11. The demand for this liberty of appropriation of the property of other people is not necessary even for the convenience or the advantage of the reader or student. No dilliculty is experienced in England, or in other of the States of Europe, under the exclusive control given by their several copyright laws, in securing, under the authority of the owner of the copyright, copies of foreign editions of certain works in the cases in which, on one ground or another, there may be requirement for such copies.
No difficulty was experienced in the United States prior to the change of the law in 1891 on the part of American readers who preferred an English edition of Irving or of Longfellow in securing, under arrangement with the publisher representing the ownership of the copyright, the importation of the English copies desired. It was not necessary, and to-day, with the better organization of the book trade and with the extension of trans-Atlantic connections, it would be still less necessary that the order for the copy of the foreign crition be placed directly with the publisher controlling the American copyright. Such order would be accepted and filled by any intelligent bookseller, upon who would rest the responsibility of ascertaining who controlled the copyright in the United States and of placing his order through such publisher.
The advocates of this privilege of unrestricted importation have laid stress on the indignity of an American citizen having to “stand as an applicant before the publisher in order to secure permission to purchase a book that he ought to be entitled to purchase without any special permission. This is, of course, a mere figure of speech.
In any use of property it is necessary for the applicant to arrive at an arrangement with the owner of such property. If B wants to secure water power from a water course owned by A, he has to come to terms with the owner of such water course. If B wants to secure a right of way across a field belonging to A, it is necessary for him to arrange with the owner.
The question is simply whether the owner of the American copyright shall have his property taken without compensation. The statute which does not
secure to the producer of the copyright, or to the purchaser of the copyright, the control and the full advantage of that which he has purchased secures neither copyright nor justice.
MEMORANDUM IN REGARD TO MR. WISE'S STATEMENT ABOUT
There is at this time in existence no association that can properly be described
publishing trust." There has at no time been in existence any association of publishers the purpose and the work of which are in line with the purpose and the work of combinations which are technically to be described as " trusts.” The purpose of a trust of quinine manufacturers or of steel manufacturers is to maintain a common market price for quinine or for steel, and this purpose has at different times been carried out. The book publishers never undertook to agree, and never did agree, to maintain any market price for books, and the action of their association never had any influence in fir ing the prices at which books should be published. The members of the association were competing with each other as actively after the organization as before its existence in bringing books into the market at the lowest prices which, in their judgment, would be likely to secure popular sale. The only purpose of the association was to secure for copyrighted books the result that the published price should remain the actual price. Even in regard to this detail the association has ceased to act as an association. Each publisher has always used his own judgment as to the published price of a book, and each publisher uses his own judgment to-day in deciding whether he will or will not continue business relations with dealers who decline to maintain the published price. This is a matter within his own control.
The action of combinations of publishers agreeing together to sell their publications only to dealers who would maintain the prices of copyrighted books has never been questioned under the laws of any of the European States, This routine has been followed in Germany since 1548, in France since 1960, and in Italy for the same period. The routine has been followed in England for the past twenty years, and no critic or opponent of English publishers has ever questioned the authority of the associated publishers under the existing law to maintain the advertised prices as the actual and honest prices. This principle has been maintained in the decisions of the New York court of appeals. The matter is one which need, however, not be permitted to interfere with the wording of the existing statute. It does not, in our judgment, call for any action on the part of the committees who are bringing into its final shape the law of copyright. The point is one which can safely be left to the decision of the courts.
MEMORANDUM IN REGARD TO A SINGLE STATEMENT.
[Selected out of a series of unfounded statements made by Mr. Jenner.] Mr. Jenner, in quoting the words of the writer in regard to the production of American editions of foreign books, undertook to state that these editions are reshaped or garbled as to their text before being placed into the American market. He was perfectly well aware at the time of making this statement that the words “ printed to meet the requirements of the American book-buying public ” had to do simply with the form of the volume and with the price at which it was to be sold.
It is the case that, with a few exceptions, American editions of current English books are published in this market at substantially lower prices than those at which they are published in England.
A book published in England at 16 shillings would, if reprinted in an American edition, be sold in this country at from $3 down to $2.
This means simply that the larger portion of the American public is not prepared to pay the high English prices. It is to the interest of the American public that important books should be printed in these less expensive American editions.
These American editions are, as a matter of fact, and in accordance with the necessary routine of all reputable publishers, printed complete and intact, and differ in no detail of text from the editions as issued in the country of origin.
American publishers have encouragement to produce such editions only if they can be left, after entering the book for copyright, with a secure title to the control of such American copyright.
REPLY BY WILLIAM A. JENNER TO THE ARGUMENT OF THE AMERICAN PUBLISHERS'
I received on April 1 instant a copy of an argument entitled “Importation of copyright books, section 34, pages 18, 19," under the cover of the American Publishers' Copyright League, which I understand has been filed with the committees of Congress having the pending bills under consideration. I append hereto, as Appendix A, a verbatim copy of the argument, excepting that I have numbered its paragraphs for convenient reference. I presume it to have been the work of Mr. George Haven Putnam, the secretary and managing officer of that league. It has the flavor or color, whichever is the more acceptable term, or let me rather say the characteristics, of his written and spoken compositions. It is the best presentation of the publishers' case which I have seen, as it should be, because it avails of the profound and, in part, exclusive knowledge which that advocate of copyright reform claims to possess of every, even the most obscure, phase of the copyright question.
(1) The argument states (par. 1) that “the contention submitted” by me “ provides for the absolute removal of the restrictions for individuals as well as for associations in the importation of copyrighted books."
Reply.—That is not the fact. Instead of contending for the removal of any existing restrictions, I have argued in favor of retaining every existing restriction and have expressed the opinion that existing restrictions might be properly restricted still further by prohibiting the importation of foreign copies of American authors' works, unless Congress thinks that the present liberty of importation in that respect is essential, in order to maintain a reasonable control over American prices for American works. If the committees think that control is unnecessary or inexpedient, I have not a word to say against its surrender.
(2) The publishers' argument asserts (par. 2) that there is "no logical ground why, from the privilege that is extended thus universally, the bookseller should be excepted.”
Reply. The bookseller is not excepted. There are very strong reasons why the bookseller should be deprived of the liberty of importing the foreign-made books for sale, and that reason is found in the following considerations: Under existing law libraries and private persons may import two copies of a foreignmade book, copyrighted here, for use and not for sale. The privilege does not discriminate between the work of an American author printed abroad and the work of a foreign author printed in his own country, but, subject to the policy mentioned above, might well discriminate. The object of the restriction of the right of importation in respect of foreign-made copies of foreign authors' works is to secure for the publishing proprietor of the American rights in the foreign book the principal market, in the reasonable expectation that the importation of foreign-made copies by either libraries or private persons will be, as they are, comparatively few. A bookseller may, under existing law and under the law as I think it should be-viz, the existing law restricted to one copy instead of two-import a foreign-made copy of a copyrighted book on exactly the same footing as any other citizen—that is; for use but not for sale. Practically speaking, a bookseller has no use for a book excepting to sell it, and libraries and private persons have no use for a book except for reading. To allow a bookseller to import foreign-made copies of foreign works, copyrighted here, for sale, would practically destroy the market for the American reprint of the same work, because the bookseller would import a copy and have his dummies import copies and repeat the importation by every mail, and thus impair the market of the proprietor of the American rights. Practical legislative sagacity realizes that the importation of foreign-made books by libraries will be very few and negligible if the price of the American edition is not exorbitant, and that the importation of the genuine foreign work by the private person wilí also be negligible because of the tariff of 25 per cent, the inconvenience of procuring the foreign copy, and indifference to the foreign-made copy, excepting in cases where special reasons exist for desiring or preferring the foreign-made book, such as superiority of its manufacture, completeness of its text, exhaustion of the American reprint or gratification of the esthetic taste which causes the genuine edition brought out under the author's eye to be coveted.
(3) The publishers' argument asserts (par. 3) that “the copyright laws in all the other states of the world are in accord in maintaining consistently the exclusive control given to the producer and to his assign."
I confess that I have been too busy to study the copyright laws of “all the other states of the world," but I infer from the statement of Mr. Putnam, the Librarian, submitted at the joint session of the committees on March 29, 1908, a copy of which he has politely sent me, that in most foreign countries there may be importation, and in Canada the individual is “allowed to import through the Canadian licensee a copy of the foreign edition ” and “has a right to demand that the proprietor shall import for him.”
It would not be expedient to allow the proprietor of the American rights in a foreign author's work to import a copy of the foreign edition even upon the demand of a person desiring it, for the following reason: It has been the policy of our law since the enactment of international copyright in 1891, to require, as a condition of granting copyright on works of foreign authors, that the type for the American edition shall be set in this country, and the pending bills require the printing and binding also to be done here. Whether the governmental policy was wisely adopted or not is not in question. I for one do not object to it. I do not think that policy will be openly changed, and certainly it should not be changed by indirection. If the proprietor of the American rights——that is, the American publisher-could legally import a copy of a foreign-made edition upon the demand of private individuals, it would inevit. ably follow that a few dummies in his interest would give orders and repeat orders for the foreign-made copies, and that publishers' counters and bins would be loaded with such copies for sale to the general public. Of course the proprietor of the American rights-the publisher of the American edition, would, at the least expense, set the type and reprint the book or so much of it, and in such form, adapted, incomplete or otherwise, as would satisfy the re quirements of the law in respect of manufacture, and recoup his expense and make his profit on his investment in the American rights by the sale of the foreign edition, ostensibly lawfully imported. Thus the intent of the law requiring the American book to be made in this country and preserving the substantial market for the reprinted work would be evaded, to the loss of American craftsmen engaged in book making. A scheme which would atford opportunity for such practices ought not to be sanctioned by legislation. In my opinion, whatever the laws of foreign countries may be in respect of importation, they are totally irrelevant because foreign countries do not require, as a condition of copyright, that the book shall be made in the country granting the copyright. That policy is peculiar to this country. I am not, in the least, criticising it, but the existence of that policy in our statute and loyal observance of it requires restrictions upon the actions of the copyright proprietor in respect of his obtaining foreign made copies. Those restrictions are unnecessary in other countries which have no such policy. The interests of scholarship and literature in general require with us that the private individual should have the right of importing for his own use, but not for sale, foreign-made copies of foreign authors' works. It is necessary that those two lines of policy should be made consistent with each other and each practically operative with the other, and that joint policy is observed in the existing law and would be observed in the proposed new law by limiting the right of importation to one copy instead of two, but, so limited, leaving it unrestricted as now.
(4) The publishers' argument (par. 1) that “ there is no difficulty to-day in England, or in other of the states of Europe, in securing, under arrangement with the representative of the copyright owner, foreign editions of books," has already been answered by my comments made last above. That policy can not be adopted by us, if we require the book to be made here.
(5) The publishers' argument (par. 5) next refers to the doings of German students in London. I must leave to Mr. George Ilaven Putnam, if he is the author of the argument, an exclusive monopoly of disquisition in the field of German students' doings in London, and I do so the more willingly because it seems to me that what German students do in London has nothing to do with the case.
(6) The publishers' argument next suggests (par. 6) that the private person's “ order can be placed with any intelligent bookseller, who has no difliculty in arranging through the publisher controlling the American copyright for the importation required.”
This statement seems to read as if it was a statement of present practice under existing law. If it is so, every such transaction is a violation of existing law by the “intelligent bookseller " as well as by " the publisher controlling the American copyright." The bookseller has no right to import for sale, and he does import for sale if he imports for any other purpose than for his own use,