be pirated. The difference to be gained by printing it abroad while running the danger of having it pirated would not be enough to have it published abroad.

Mr. WILLIS. After all, we have a high cost of living but we are not the only educated people on earth. I think you could find publishers abroad because they have been publishing abroad for centuries.

Mr. FARMER. The main fact of the matter is that practically no American works are published abroad except in England. The other countries wait and see how they sell here and, if it is an outstanding success, and only if it is an outstanding success, will there be a printing in the foreign country. For example, Gone With the Wind, Zane Grey, and things of that kind. I think you would find that if that did happen, not only the publishing but the motion-picture companies would not be able to be assured of world-wide protection. They would have protection in the United States but they have to make distribution abroad in order to make a profitable venture out of it. If the work was in a country abroad, with their comparatively low production costs, they might be able to go in there and make a quickie with it. This bill deals only with books and periodicals. But when we talk about the threat of retaliation then that extends into the other fields.

Mr. WILLIS. Let me ask you this: If you feel that relief is to be had, do you not think we have gone overboard by jumping from 4 months to 5 years?

Mr. FARMER. I will tell you two reasons why that 5 years is good. In the first place it makes no practical difference to American labor whether you give them 2 years or 5 years. The point is that they are limited to importing 1,500 copies.

The other reason is this: It does happen that there is an interest in works published abroad, not just by the publishers but by the motion-picture companies and radio companies. If they are not protected by copyright, then no motion-picture company wants to make a picture of it.

Mr. WILLIS. This last has nothing to do with motion pictures.

Mr. FARMER. By protecting the book it protects all possible other motion-picture and radio rights. So that it gives your American author and motion-picture manufacturer a protection, and it confers a benefit on the foreign author by covering his rights. There is no objection so long as we limit the copies to 1,500.

Mr. BRYSON. In other words, the time element is not so important as the number of units?

Mr. FARMER. That is right, sir.

Mr. BRYSON. Thank you very much, sir.

We will now hear from Mr. Bracken of the State Department.

STATEMENT OF THOMAS E. BRACKEN, ASSISTANT LEGAL ADVISER, STATE DEPARTMENT

Mr. BRACKEN. My name is Thomas E. Bracken, and I am assistant legal adviser for the State Department.

Mr. Chairman, I wish to furnish a copy of a letter and this is a letter to Mr. Celler, signed by the Acting Assistant Secretary of State for Congressional Affairs, Mr. Gross.

Mr. BRYSON. Do you want that put in the record?

Mr. BRACKEN. If you please.

Mr. BRYSON. All right.

(The letter referred to is as follows:)

Hon. EMANUEL CELLER,

FEBRUARY 25, 1949.

Chairman, Committee on the Judiciary, House of Representatives.

MY DEAR MR. CELLER: The Department wishes to acknowledge your letter of February 7, 1949, in which you request an expression of our views with respect to H. R. 2285, to amend title 17 of the United States Code entitled "Copyrights," with respect to relaxation of provisions governing copyright of foreign works.

The portion of the copyright law to which this bill primarily relates is found in sections 16, 107, 22, and 23 of title 17.

Section 16 of title 17, usually known as the manufacturing clause, provides that no book written in the English language can have copyright protection in the United States unless, generally speaking, the book is "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 within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photoengraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States * * * ""

Section 107 prohibits, with a few minor exceptions, the importation into the United States, during the existence of the American copyright, of any copy of a book in English which has not been produced in accordance with the manufacturing provisions of section 16.

Sections 22 and 23 provide for ad interim or temporary copyright protection for books in English which are first published abroad. Such a book which is deposited in the United States Copyright Office within 60 days of its publication abroad obtains copyright protection for a period of 4 months thereafter. If during the 4-month period the book is published in the United States in accordance with the manufacturing provisions of the law, full-term copyright protection-28 years-may be secured.

Taken together, these provisions of title 17 are clearly designed to preclude any book in the English language from having copyright protection in the United States unless, with a few exceptions, every copy sold here is manufactured in the United States.

This Department has for many years consistently opposed the manufacturing clause of our copyright law and believes that it should be repealed.

*

Looked at from the point of view of the nature and purpose of copyright as set forth in the Constitution of the United States, "to promote the Progress of Science and useful Arts, by securing for limited times to Authors * * the exclusive Right to their * * * Writings," it seems clear that the place of manufacture has no relevancy whatever to the maintenance by an author of an exclusive right. The object of the provision is purely and simply a concealed device to protect the American book printing and related industries from foreign competition.

While it is not believed that any other important country has at the present time a provision exactly similar to our manufacturing clause, this is the kind of device which, in other fields, we have found most harmful to the increase of our exports abroad. If we maintain such a provision with respect to books, we in effect invite other nations to impose similar restrictions against American books. In the current struggle of ideologies in the world, it is vital to the United States that the flow of ideas and information from our country to foreign countries be as unrestricted as possible. Restrictions against American books, periodicals, and motion pictures are already far too current in some parts of the world. The United States can ill afford to provide by its own laws an example of unnecessary restrictions in this field. Moreover, if we maintain such a provision in the field of books, we must expect to encounter similar protective devices in foreign countries which will operate to shut out other American products.

Viewed in this light, as a protective device restricting the flow of trade and ideas, the manufacturing clause is contrary to the interests and international commercial policy of the United States. It cannot but be a source of embarrassment to the programs for the reduction of artificial and unnecessary barriers to international trade, and for freedom of information, in which the United States has vigorously taken the leadership.

There are other objections to the manufacturing clause.

This feature of our law

is an obvious discrimination against authors who write in the English language and who may not be in a position to manufacture in this country separate editions of their works originally published elsewhere. Moreover, as the law stands at present, if an author writing in English abroad is unable to persuade an American publisher to manufacture and publish his book within 6 months of publication abroad, he is deprived not only of all chance of securing royalties from publication in the United States at a later date but also of the opportunity of securing United States radio and motion-picture royalties as well. This unjust discrimination is leading to increased pressures in foreign countries for retaliation against the works of American authors abroad.

Because the manufacturing clause and the related portions of section 107 are inconsistent with the policy of the United States to encourage the freer flow of information and ideas as well as its international commercial policy, the Department believes that these provisions of title 17 should be repealed.

H. R. 2285 would reenact section 16 but would considerably ameliorate the situation by extending the time during which English books published abroad may be deposited for ad interim copyright, by extending the period of such interim protection to 5 years, and by specifically providing that up to 1,500 copies of such a book, manufactured abroad, may be imported into the United States within this 5-year period to test its marketing possibilities in this country before manufacture in the United States is necessary to preserve copyright protection.

However, as indicated above, the Department believes that the manufacturing clause should be entirely repealed. In this connection, the Department is at present reviewing the manufacturing clause and the related section 107 of Title 17 in the light of the Havana Charter for an International Trade Organization. While no final position has yet been reached by the Department in this matter, there is considerable doubt whether these provisions of our copyright law would be consistent with the obligations which would be assumed by the United States if the United States accepts the proposed charter.

It is expected that the charter will be submitted to the Congress in the near future, at which time the Department will be prepared to present its recommendations regarding any changes in existing legislation in this and other respects which may be necessary to permit the acceptance of the charter by the United States.

In view of the foregoing, the Department suggests that legislation with respect to the manufacturing clause be deferred until the Congress has had an opportunity to consider the Habana Charter.

There are, moreover, other aspects of the legislation to which the Department is not prepared to subscribe. For example, it is observed that the elimination of the $4 fee is coupled with an alternate procedure which would require the deposit of a catalog card in form and content satisfactory to the Register of Copyrights. Even though the imposition of this additional formality is merely a part of an alternate procedure, yet it establishes the precedent of a further formality to be observed between nations as a prerequisite to copyright protection.

It is our feeling that we should seek to free our neighbors abroad of as many burdensome conditions of filing as possible. The possibility also arises that this proposed provision will evoke similar provisions in the laws of other countries resulting in an additional requirement to be imposed upon United States authors and proprietors seeking copyright protection in those countries.

There is, in addition, the provision which makes it possible for any United States author or proprietor to use the facilities of the Copyright Office to forward copies of works to foreign countries "with which satisfactory arrangements exist for deposit or registration in conformity with the copyright laws of such country" upon payment of such sums as the Register of Copyrights may determine to be

sufficient to cover the cost of such services.

It is noted that findings of "satisfactory arrangements" for deposit and registration would be required under this proposed provision. Such a finding on the part of a governmental agency would lead, in our belief, to a conclusion on the part of many countries that the United States encourages and sponsors some type of registration and deposit system in such countries. This again could lead to the imposition of further burdensome formalities upon our citizens. It is interesting to note that the Treaty of Mexico City of 1902, referred to in a memorandum supporting the proposed legislation, was ratified by only seven of the American republics, namely, the United States, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua. Each of those republics except El Salvador has become a party to one or more of the subsequent inter-American copyright conventions signed at Buenos Aires, August 11, 1910,

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at Habana, February 20, 1928, and at Washington, June 22, 1946, respectively. None of the later conventions contain any provisions corresponding to the abovementioned provisions of the 1902 convention regarding registration and deposit. It will be of interest to your committee that the matter of our copyright relationships with the United Kingdom was discussed with the official representatives of that nation, within the past 6 months. It was concluded that discussions would be resumed this spring or summer with the hope of a thorough revision of the somewhat patchwork relationship which now exists.

In conclusion, the Department respectfully submits that it endorses without qualification the proposal to eliminate the requirement that a foreign author or proprietor must make a payment of a fee of $4 with respect to works of foreign origin. In the past few months representations have been made to us by various sources to the effect that it has become increasingly difficult, if not impossible, for a foreign author or proprietor to secure $4 for the payment of his fee for copyright protection. The Department, therefore, is prepared to endorse legislative action for the elimination of such fee.

Because of the urgency of the matter, this letter has not been cleared with the Bureau of the Budget.

Sincerely yours,

ERNEST A. Gross, Acting Assistant Secretary (For the Secretary of State).

Mr. BRACKEN. I might mention, Mr. Chairman, that I am chairman of the Policy Committee on Copyrights for the State Department. I would like to premise my remarks, of course, with the statement that with respect to international copyright the Department of State has had that responsibility as one of the executive agencies of the United States.

I had planned to read this rather long letter addressed to Mr. Celler, but you have made it unnecessary for me to do so.

Mr. BRYSON. Since we shall have access to the record before we render any decision on the matter, if you could give us just a kind of recapitulation of the letter, it would be helpful.

Mr. BRACKEN. Mr. Farmer broke down the act into three points, the first being the manufacturing clause. Concerning that particular point the Department of State is not in accord with the present proposal as outlined here. We feel that the manufacturing clause as such should be entirely eliminated. We feel that it has created a good deal of international ill feeling and it comes to us constantly. Last August I was in London and talked to Sir Harold Saunders and Mr. Crew who are the official representatives of the British Government on copyrights.

Mr. BRYSON. Do they correspond with our Register of Copyrights? Mr. BRACKEN. No, Mr. Chairman, they correspond with the State Department.

Mr. BRYSON. Correspond with you?

Mr. BRACKEN. Yes. I do not believe that they have any similar office to the Register of Copyrights as such.

In response to an inquiry from England some time ago, concerning the adjustment of copyright relationships between England and the United States, I presented to Sir Harold Saunders and to Mr. Crew, who is probably the foremost copyright expert in England and represents the Government, the proposition that under the forthcoming International Trade Charter which we are apt to call the Habana Charter, and which will be brought before the Congress in a few weeks for ratification, that it was our opinion that it would be necessary to scrutinize the manufacturing clause and probably to eliminate the manufacturing clause.

Mr. WILLIS. By manufacturing clause, will you tell us your idea of it?

Mr. BRACKEN. Yes. The manufacturing clause states that books printed in the English language must be printed in the United States in order to secure copyright and United States copyright protection. The British representatives concurred in our suggestion and it was agreed that this forthcoming spring or summer our negotiations would be renewed when the Congress of the United States had had the opportunity of deciding whether or not it wanted a manufacturing clause or to consider the ITO Charter.

For those reasons the Department of State now takes the position that it would prefer to have the present legislation with respect to the manufacturing clause provision deferred.

I would like then to come to a further point in the legislation. I wish to interject for just a moment that the ad interim clause of which we have heard a good deal this morning is intrinsically entwined with the manufacturing clause, and it would appear to us that there is no sense in discussing the ad interim clause as such if we take the position with respect to the manufacturing clause that we have already outlined.

Mr. WILLIS. By saying that you want this clause deferred, what do you mean?

Mr. BRACKEN. I have in mind that within the next few weeks the administration will request Congress to consider the Habana Charter. Mr. WILLIS. In other words, you would not want us to do this for the time being?

Mr. BRACKEN. Exactly.

Mr. BRYSON. You mean we could defer the manufacturing part of it or else take no action on it at all?

Mr. BRACKEN. I am directing myself particularly to the manufacturing clause. I will also comment on the other section of the bill. We come to what I call the second point of the bill, namely, the copyright fee of $4. I wish to point out that the Department of State is in full accord with any endeavor to eliminate or to lessen the difficulties which arise in the imposition of the $4 fee for registration in this country. We in the State Department had representations from various foreign governments to the effect that it is impossible or at least very difficult to secure $4 in order to register in this country.

I might say, however, that we are not in accord with the alternate proposal which is suggested here. The alternate proposal provides that the catalog card shall be submitted, which, as I recall, will be acceptable to the Register of Copyrights in form and content.

We do not wish as a matter of general principle to have further formalities imposed which will affect adversely the relationships between countries. A catalog card may be available in any particular country or it may not. The individual abroad, it seems to us, is not in a position to determine whether the card is going to be satisfactory to the Register of Copyrights. It may be that there is a delay in securing such a card.

Mr. BRYSON. May I ask you what is a catalog card? Does that not just state the author, date, and where it is published?

Mr. BRACKEN. I would say, Mr. Chairman, that I do not know from this legislation just what type of catalog is contemplated.