Arguments before the Committee on Patents of the House of Representatives Part 2

_Subject-matter of copyright._--A general statement that it is to include "all the works of an author," leaving the term "author" to be as broad as the Const.i.tution intended. Certain specifications follow, but coupled with the proviso that they shall not be held to limit the subject-matter.

The specifications [sec. 5] subst.i.tute, so far as possible, general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statue, and statuary." They a.s.sume, however, that these will be included under the more general terms as "prints and pictorial ill.u.s.trations," or "reproductions of a work of art," or "works of art," or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts"

in the present statute, with the idea that there is subject-matter (e.g., of applied design, yet not within the province of design patents) which may properly be ent.i.tled to protection under the copyright law.

Express mention is made of oral lectures, sermons, and addresses; periodicals, including newspapers; drawings and plastic works of a scientific or technical character, and new matter contained in new editions.

Labels and prints relating to articles of manufacture hereafter to be registered in the copyright office instead of in the Patent Office.

Additions, revisions, abridgments, dramatizations, translations, etc., to be regarded as new works. [Sec. 6.]

_Who may obtain copyright._--As broad as heretofore. International reciprocal arrangements confirmed. The privilege extended to any foreign author who is living in the United States at the time of the making and first publication of his work, or first or contemporaneously publishes here.

_How to secure copyright._--The copyright is to be "secured" by publication of the work with the notice affixed. This section, 9, with section 14, is fundamental. Sections 10, 11, and 13 prescribe subsequent procedure in the copyright office.

Registration is provided for works (e.g., works of art) of which copies are not reproduced for sale, with the requirement that the notice shall be affixed to the original "before publication thereof." [Sec. 10.]

The deposit to be not later than thirty days after publication; in the case of a periodical not later than ten days. The copies deposited to be of the "best edition," as required by the act of 1870. [Sec. 11.] In case of error or omission to make the deposit within the thirty days, permission to make it within a year after first publication, but with the proviso that no action shall be brought for infringement until it has been made. [Sec. 15.]

In case of a printed book the copies deposited must be accompanied with the affidavit called for by House bill 13355, pa.s.sed by the House April 26, 1904, that the requirements as to American typesetting, etc., have been complied with, and the affidavit is to specify the place and the establishment in which the work was done.

Extends [sec. 13] the "manufacturing clause" to include texts produced by lithographic process, and also in certain cases ill.u.s.trations and separate lithographs, but abrogates it in the case of photographs.

The articles required to be deposited are to be ent.i.tled to free transmittal through the mails, as under earlier statutes (e.g., act of February 18, 1867; July 8, 1870). [Sec. 12.]

The notice of copyright simplified. Specified only for the copies "published or offered for sale in the United States." Where right of public performance is reserved on musical compositions, a notice to this effect is required. [Sec. 14.]

_Ad interim term_ [_sec. 16_].--Extends the ad interim term of protection in the case of books first published abroad in foreign languages from one year to two years. Provides for an ad interim term in the case of books first published abroad in English, of thirty days, but with prohibition of importation during the interim.

_Duration_ [_sec. 18_].--Instead of the present term (forty-two years), varying terms according to the subject-matter. Provides a special term of twenty-eight years (instead of forty-two years as now) for labels and prints heretofore registered in the Patent Office; increases the term of other articles, and especially derivative articles, from forty-two years to fifty years; and in the case of original works increases the term to the life of the author and fifty years. Abolishes renewals.

The bill also makes provision for the extension of subsisting copyrights to agree with the term provided in the present bill where the author is living or his widow or a child, provided the publisher or other a.s.signee joins in the application for such extension. (See section 19 of the draft.)

The right of dramatization or translation must be exercised within ten years or it will lapse.

_Protection of copyright._--The present statute (Rev. Stat., sec.

4965) attempts to define acts which shall const.i.tute infringements.

The bill, having defined the exclusive rights which the copyright has secured to the author, defines (sec. 23) infringement as "doing or causing to be done" without his consent "any act the exclusive right to do or authorize which" is "reserved" to him. It contains, however (sec. 22), the one specification that "any reproduction"

without his consent "of any work or any material part of any work"

in which copyright is subsisting, shall be illegal and is prohibited.

The civil remedies open to him (sec. 23) are the injunction and an action for damages and profits, or, in lieu of actual damages and profits, "such damages as to the court shall appear just, to be a.s.sessed" upon the basis of so much per copy or infringing act, but to be not less than a total minimum of $250 and maximum of $5,000.

And the infringing copies are to include all copies made by the defendant, and not merely those "found in his possession" or "sold or exposed for sale." A provision for the impounding and destruction of infringing copies and means for producing them.

Protection provided for [sec. 21] against publication or reproduction of any unpublished copyrightable work.

A willful infringement for profit, now a misdemeanor in the case of such a performance or representation of dramatic or musical compositions, is made a misdemeanor in all cases, as is also the insertion of a false notice of a copyright or the removal of a true one. [Sec. 22.]

_Importations_ [_secs. 26-29_].--Detailed provision for the treatment of copies supposed to be infringing or otherwise prohibited. Exceptions to prohibition modified as below under memorandum "B."

_Suits_ [_secs. 32, etc._]--Actions may be inst.i.tuted "in the district of which the defendant is an inhabitant, or in a district where the violation of any provision of the act has occurred."

Limitation of actions to be three years instead of two and to apply to all actions under the act. [Sec. 34.]

_Transfers_ [_secs. 37-45_].--Definitions of the copyright as distinct from the property in the material object and of the copyrights in derivative works as distinct among themselves.

_The copyright office._--Sections 46 to 60 provide specifically for the administration of this.

_Catalogue of t.i.tle entries._--Detailed provision is made for the continuance of the printing of the catalogue on the allotment for printing of the Library of Congress (see secs. 55 and 56 of the draft); and the catalogue is to be made prima facie evidence of deposit and registration.

Provision is made for the reprinting of the indexes and catalogues in cla.s.ses at stated intervals, with authority to destroy the ma.n.u.script cards included in such printed volumes. The current catalogues to be distributed from the copyright office, and sold at a price fixed by the register; the subscriptions to be received by the superintendent of public doc.u.ments.

Following the provisions for the indexing and cataloguing of the articles deposited, provisions are made, in sections 57, 58, and 59 of the draft for the public inspection of the copyright office record books and deposits; for the permanent use of such deposited articles; for their transfer to other Government libraries where unnecessary to the Library of Congress; and for the disposal of acc.u.mulations of useless articles.

Section 60 provides for fees. A uniform fee of $1 for registration; but this is to include the certificate which is to be furnished in all cases [a separate charge is now made for it]. And the certificate is given a new importance as prima facie evidence of the facts which it sets forth, including deposit and registration, thus exempting the complainant in an action from other affirmative proof of compliance with these formalities.

A single fee for certain registrations heretofore requiring multiple fees.

B.--_Provisions of existing law which are omitted from the bill._

The existing law is set forth in the twenty-odd pages of "Copyright Office Bulletin No. 1." It consists of Article I, section 8, of the Const.i.tution, sections 4948 to 4970, inclusive, of the Revised Statutes, and twelve later acts in amendment thereof. The substantial provisions of these which are intentionally abrogated are the following [references are to pages of the Bulletin, copy herewith]:

[Section 4950, page 6.--Omitted in the bill, but exists still as part of the act of February 19, 1897.]

Section 4952, page 6_A_.--Ad interim copyright. The requirement for notice (of date of publication and reservation of copyright) on the foreign edition is abolished.

Section 4952, page 7.--Labels and prints relating to articles of manufacture no longer to be registered in the Patent Office, but in the copyright office, with corresponding reduction of fee.

Section 4954, page 7.--Renewal term abolished.

Section 4956, page 8.--Requirement that the deposit of copies shall be "on or before the date of publication" is abolished, and a margin of thirty days is allowed, with provisions for making good omissions within a year.

The deposit (registration) is no longer to be the act ent.i.tling to a copyright. The copyright is to be "secured" by "the publication of the work with the notice of copyright affixed," and dates from such publication. Registration with deposit remains compulsory, and after the expiration of the thirty days no action for infringement can be brought until it has been made; but it is no longer expressed as a formality the failure to comply with which is to avoid the copyright.

Section 4956, page 8.--Preliminary deposit of t.i.tle or description abolished. "Photographs" omitted from the "manufacturing clause."

["Chromos" also, in terms, but a.s.sumed to be covered by "lithographs."]

Section 4956, page 9.--Importation by individuals of the foreign edition (two copies at any one time) is abolished except with the a.s.sent of the American copyright proprietor, and the two copies at a time are throughout reduced to one. The privilege of societies and inst.i.tutions (under the act of October 1, 1890) is no longer to include the importation, without such a.s.sent, of "a foreign reprint of a book by an American author copyrighted in the United States unless copies of the American edition can not be supplied by the American publisher or copyright proprietor;" and the society or inst.i.tution must be incorporated, unless it be a "college, academy, school, or seminary of learning" or a "State school, college, university, or free public library."

Section 4957, page 9.--The particular language of the entry in the record books of the copyright office is no longer specified.

Section 4959, page 11.--Deposit of "subsequent editions" not required unless the "changes" which they contain are "substantial"

enough to induce a new registration.

Section 4960, page 12.--Provisions of act of March 1, 1893, dropped as no longer effective.

Section 4962, page 13.--_Notice._--The date and the word "by" no longer required in the notice. The abbreviation "Copr.," and in certain cases the letter C within a circle, permissible instead of the full word "Copyright."