Arguments before the Committee on Patents of the House of Representatives Part 26

Mr. MALCOMSON. I am referring to page 4, line 4.

Mr. CHANEY. "Prints and pictorial ill.u.s.trations?"

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 a.s.sumed, however, that these will be included under the more general terms as prints and pictorial ill.u.s.trations;" 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 ill.u.s.trations 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 a.s.sociation, 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 ill.u.s.tration.

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 pa.s.s 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 ill.u.s.trations produced by lithographic process within a printed book consisting of text and ill.u.s.trations, 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 ill.u.s.tration 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.