3. There should be added on page 3, line 21, the following: "Provided, however, that nothing herein contained shall affect any extensions granted by Presidential proclamations issued pursuant to the Act of September 25, 1941 (Public Law 258, 77th Cong.). This is to safeguard rights which have accrued under the proclamations.

4. On page 3, line 1, strike out the balance of section 1 which commences with the words "if ad interim copyright," and substitute the following: "if said copies shall contain notice of copyright in accordance with sections 10, 19, and 20 of this title and if ad interim copyright in said work shall be obtained pursuant to section 22 of this title within the 6 months' period provided for in said section 22, provided further that the provisions of this section shall not affect the right of importation under the provisions of section 107 of this title."

The suggested wording is necessary for the following reasons:

(a) It is essential to continue the exceptions of section 107 permitting books to be imported for individual use, the use of the Government and of schools and libraries, without reducing the 1,500 copies.

(b) As the bill now stands, a foreign author would be required to register his work before any copies may be imported for sale in the United States. This is an unnecessary barrier to the free flow of information, and will delay access in the United States to works of current interest published abroad. Such a provision is inconsistent with the basic theory of our copyright law under which copyright is secured merely by publication with notice. Authors abroad writing in the English language should be put upon a similar footing as other authors, both domestic and foreign. They should be entitled to publish their works with notice of copyright and export them to this country without delay or other formality. It is in our national interest and consistent with our belief in the free flow of information to have access to foreign works as promptly as possible. The suggestion that this might result in the circulation of books bearing a false notice of copyright when the copyright has lapsed, is, in our opinion, of no merit. Attention is called to the situation which arises under section 24 under which a copyright may be renewed. If the author fails to renew the copyright at the end of 28 years, the work falls into the public domain, but the copies which have theretofore been circulated bear the notice of copyright, which creates a situation no different than that which we propose. The same is true under other provisions of the act where, for some reason or other, copyright lapses or is unenforceable. The volumes already in circulation bear the notice of copyright and we know of no instance where this has caused any harm or injury to the public. If a person who desires to utilize a foreign book written in the English language wants to ascertain whether registration has been made within the 6 months' period, he need only make a simply inquiry of the Copyright Office.

5. On page 3, line 17, the word "secure" should be eliminated and the word "preserve" should be substituted.

6. We are disturbed by the suggestion made by the Register of Copyrights, at the hearing on H. R. 2285 concerning a proposal to permit importations only upon a certificate issued by the Copyright Office or other governmental agency. We understand the proposal to be that a foreign author, in order to import books into the United States (even after he has made registration and has deposited copies), would be obliged to apply for an importation certificate for the number of books he wants to import at any particular time. For example, a British author who wants to import 10 or 100 copies of his book into the United States, would be required to apply for some sort of a certificate or license to permit him to do so, and this license would have to accompany the importation. Then successively, as he wished to import additional copies, he would be required to apply for new certificates or licenses.

We are unalterably opposed to any licensing system for the importation of books. May we point out that the United States is an active participant in UNESCO and has been among the chief supporters of the principle of free flow of information. Any system of licensing as suggested would create a barrier absolutely inconsistent with these principles. Such a system of licensing might develop into a weapon for censorship and the creation of an iron curtain to bar knowledge and information from the United States. We do not say that this will necessarily happen, but any such licensing system has these potentialities. We therefore suggest the addition of the following language to section 1: "The author or copyright proprietor of a book of foreign origin in the English language shall not be required to obtain any certificate or other governmental consent under this title for importation of said copies."

7. At the hearing, the question was raised whether consideration of H. R. 2285 should be had now or postponed until the ITO charter is under consideration. This is a matter of an over-all national policy which must be taken into account, but it might not be amiss to formulate a relaxation of the manufacturing clause pending the determination whether it is consistent with the charter itself. It is on this basis that we have discussed the provisions of H. R. 2285.

Very truly yours,

Re H. R. 2285 (81st Cong., 1st sess.) (relaxing provisions governing copyright of foreign works).

Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

House Office Building, Washington, D. C.

DEAR CONGRESSMAN CELLER: I read with great interest H. R. 2285, introduced by you on February 3d, and understand that your Judiciary Committee will hold a public hearing on February 25th.

I do not represent any groups or interests having an immediate concern in the subject matter of this bill. However, as a member of various bar association committees on copyright during the past 19 years, chairman of one such committee for the period 1938–46 (that of the section of patent, trade-mark and copyright law of the American Bar Association), a participant in the Professor Shotwell committee conferences of some years ago on general revision of the copyright law, a consultant to the United States delegation during the Inter-American Copyright Conference in 1946, resulting in the Washington convention of that year, and a present member of the United States consultant's panel for the UNESCO study on international copyright, I have become familiar with the problems and have heard the conflicting points of view on the requirement of our copyright statute for domestic manufacture of books and periodicals in the English language.

Accordingly, the views here expressed are entirely personal, as a member of the public who has long had a deep interest in copyright legislation.

I feel this is a good bill. It attempts a substantial measure of relief to those who have complained of the difficulties under our copyright statute in securing copyright protection in the United States for books and periodicals of foreign origin, in the English language only, resulting from our rigid provisions for ad interim copyright and the mechanical work to be done in the. United States. I understand that the International Allied Printing Trades Council which has objected for its members to elimination of these provisions in the past, approves the relaxation of these provisions proposed by H. R. 2285. This change of view, in the interests of compromise, came after taking into consideration present economic conditions in the field of United States publication, where there appears to be no real interest in domestic printing and manufacture unless at least from 3,000 to 5,000 copies of a book may be sold. H. R. 2285 will permit the United States market to be tested by the importation of 1,500 copies, while preserving protection here for the foreign copyright under a more liberal ad interim period. I think the bill represents a long step forward in compromising the deadlock of the last generation over the manufacturing clause.

With reference to the proposed amendment to section 215 of title 17, to permit a foreign copyright applicant to deposit an additional copy of the work of foreign origin in lieu of payment of the copyright fee of $4, if he applies for registration and makes his deposit of copies within a year from the date of first publication abroad, I feel H. R. 2285 takes into consideration the realities of foreign exchange restrictions in respect of dollars. The $4 may not be substantial by American standards, but the legal red tape, if it can be cut, at all, in exporting dollars for this purpose from many foreign countries, makes the registration of foreign copyrights exceedingly difficult. The enrichment of the Library of Congress to the extent of the extra copy of the work and the saving in cataloging cost by the copyright owner furnishing a library card descriptive of the work, should be an adequate quid pro quo for the $4 in cash lost to general treasury funds, particularly since this may be the incentive for the registration of many foreign copyrights within the 1-year period, the owners of which might otherwise have been

content to rely for their validity under United States law, without deposit and registration, under the doctrine of Washingtonian Co. v. Pearson, (306 U. S. 30). I heartily approve the purposes of H. R. 2285 and recommend its approval by the House Committee on the Judiciary.

Sincerely yours,

EDWARD A. SARGOY.

Hon. EMANUEL CELLER,

STERN & REUBENS,

New York 17, N. Y., February 23, 1949.

Chairman, Committee on the Judiciary of the House of Representatives,

Washington, D. C.

DEAR SIR: The following is addressed to you in connection with H. R. 2285, introduced by you in the House of Representatives on the 3d instant. The bill is intended to amend certain sections of the present copyright law and to alleviate some of the difficulties attendandant upon the sale in this country of printed books and periodicals in the English language first published abroad in the English language by permitting the importation of such works during a period of 5 years after publication in the first instance in a foreign country, without loss of American copyright. That is the purport of the amendment to section 16.

Section 2 on page 3 of the bill, referring to section 22 of title 17 of the United States Code, is intended to extend the period during which ad interim copyright can be obtained, from 60 days to 6 months, and also to extend the time of publication in the United States from 4 months after the initiation of ad interim copyright to 5 years after the date of first publication abroad.

Section 3 on page 3 of the bill, referring to the second paragraph of section 215 of the copyright law, is intended to eliminate the payment of the $4 registration fee with respect to works of a foreign origin, and provides, in lieu thereof, for the deposit of two copies for registration instead of 1, together with a catalog card. This provision includes a recognition of a practice which has been instituted by the Register of Copyrights, the purport of which is to permit the creators of works first published in the United States to forward copies of the works to the Register who in turn will forward them to the proper authorities of designated foreign countries at a fee covering the Register's expense involved in this proceeding.

The period stated in section 3 is 1 year from the date of first publication abroad. I believe this should be changed to read "6 months" after first publication abroad so as to make it consistent with the amendment to section 22. It is undoubtedly the purpose of this amendment to cover all works of foreign origin.

Unhappily, I cannot attend the hearing on this bill, scheduled for Friday of this week, as my health will not permit my making the trip to Washington. If I could be there I certainly would give voice in favor of your bill becoming part of our copyright law. The basis for my conclusion is the experience which I have had, dating back to the discussions which ended in the 1909 act, and the various efforts to amend our copyright law in 1926, succeeded by the efforts embodied in the Vestal bill, the Duffy bill, and the Sirovich bill. The bill prepared by the Shot well Committee, of course, never reached the floor of Congress.

In addition to the foregoing, it has been my experience to be chairman of the copyright committee of the Association of the Bar of the City of New York and I have also given courses at New York University law school on the subject of copyright, and after practicing in this city for over 50 years, please be assured that I am very much interested in copyright and urge the passage of H. R. 2285. Respectfully yours,

BENJAMIN H. STERN.

STERN & REUBENS,

Hon. EMANUEL CELLER,

New York 17, N. Y., February 28, 1949.

Chairman, Committee on the Judiciary,

House of Representatives, Washington, D. C.

DEAR MR. CELLER: Hon. Joseph R. Bryson, chairman of the subcommittee of your Committee on the Judiciary, which is considering H. R. 2285, a bill to amend title 17 of the United States Code, entitled "Copyrights," was kind enough to give me permission, at the conclusion of my testimony before the subcommittee on Friday, February 25, to submit a memorandum summarizing my testimony

before the subcommittee. I therefore submit this memorandum in behalf of the American Book Publishers Council, Inc. The American Book Publishers Council, Inc., is a nonprofit organization, organized under the laws of the State of New York, the membership of which consists of the publishers of approximately 85 percent of the trade, text and technical books in the United States.

H. R. 2285 embodies three propositions. The first proposition is contained in sections 1 and 2 of the bill and seeks to alleviate the hardships imposed upon the creators and producers of books and periodicals of foreign origin in the English language by the provisions of sections 16, 22, and 23 of title 17. The second proposition appears in the first sentence of the amendment to section 215 of title 17, that is, in section 3 of the bill, and seeks to alleviate the hardships imposed upon foreign authors and publishers in obtaining United States funds in an amount sufficient to pay the $4 fee required for copyright registration. The third proposition is contained in the second and third sentences of section 3 of the bill and authorizes the Register of Copyrights to forward to foreign countries with which satisfactory arrangements exist, copies of works published in the United States, for the purpose of complying with the laws of the foreign countries. Turning now to sections 1 and 2 of the bill, it is important to note that they do not effect any radical change in the present copyright law. Section 2 amends the present section 22 of title 17 in only one substantial effect, viz: it extends the 60-day period now provided in section 22 for ad interim registration of works first published abroad in the English language, to 6 months from the date of first publication abroad, and it extends the period of 4 months after ad interim registration for United States publication of the work, to 5 years. The further change in this section merely effectuates the decisions of the Federal courts which have held that periodicals are included in the word "books" as used in this section, by specifically naming periodicals as among the works covered by its provisions. The proposed amendment to section 22 redounds to the advantage of foreign authors whose English language works are first published abroad and to the advantage of English and American publishers, by giving them more time, in the first instance, to secure ad interim copyright, and in the second instance, to explore the desirability of publishing in the United States, English language works first published abroad. Nothing in these amendments can possibly prejudice the right of any of our citizens, whether authors, publishers, printers, members of labor organizations or the general public.

These amendments to section 22 do, however, require two purely formal amendments to section 23, which states the method by which ad interim copyright may be extended for the full term of 28 years. The amendment consists merely of adding the words "or periodical" in the third line of the section after the word "book," and adding the words "or periodical" after the word "book" in the last line of the section. These amendments will make section 23 consistent with section 22 in specifying periodicals as coming within the purview of ad interim registration.

The amendment to section 16 is intended to give to the author and publisher of a work first published abroad in the English language the right to import into the United States, during the period of ad interim protection, up to 1,500 copies of the work. The importation of these copies, on the one hand, will not prejudice either labor or the American publishers, and on the other hand, will be of considerable advantage to the foreign author and publisher, and may be of great advantage to the American publisher and American labor. They will not harm American labor because the publication of an edition of fewer than 3,000 copies of a work in the United States is impracticable inasmuch as the costs of publishing a work in the United States are such that a sale of fewer than 3,000 copies will mean a loss to the publisher. The advantage in the enactment of this section will be that it will become possible for the American publisher to test the market for a foreign work in the English language by importing up to 1,500 copies, placing them on sale in the leading book buying centers of the United States and thereby testing the market for the work. If the response is favorable, the American publisher will publish the work in the United States thereby benefiting labor and the book manufacturers and, it is hoped, the American publisher. If the response is unfavorable, no one will be harmed.

During the hearings on H. R. 2285, the representative of the State Department pointed out that there were grave threats of retaliation by England and other foreign countries against the United States because of the existence of the requirement, in order to secure United States copyright, that a work first published abroad in the English language be published in the United States. In response to questions put to one of the witnesses, he testified that no such requirement

existed outside the United States and that all that was required for a citizen of the United States to acquire copyright in foreign countries was the placing on sale in a single country adherent to the Berne Convention (the International Copyright Union), sufficient copies to satisfy the estimated public demand. It is our belief that the amendment to sections 16 and 22 of title 17 will give such relief to the foreign publishers and authors that the threat of retaliation may be dissipated, a result which is not only desirable from a business point of view, but is also desirable as a matter of policy.

It was suggested at the hearings of the subcommittee that ad interim registration should not be made a prerequisite to the importation of 1,500 copies of the work. We are firmly convinced that this requirement should be retained for the following reasons:

1. Section 16 requires that each copy of the work so imported must bear a notice of copyright in accordance with sections 10, 19, and 20 of title 17. The purpose of this provision is to put these foreign works on the same copyright footing as works first published in the United States so far as copyright notice is concerned. If ad interim registration were not required as a prerequisite to the importation of copies of the work, then the foreign publisher could export to the United States up to 1,500 copies of the work bearing copyright notice and then fail to obtain ad interim registration for the work. The result would be that these copies would bear a false copyright notice, and as users of copyrighted material customarily assume that a notice of copyright means that the work is protected by United States copyright, the foreign author and publisher would obtain substantially the benefits of copyright protection without having actually complied with our law.

2. American authors who desire to quote from or otherwise use copyrighted works must obtain the permission of the copyright proprietor. When they find a notice of copyright in a work, the customs is for them to write to the proprietor asking for such permission. In the case of books subject to ad interim registration this would mean that they would write to the foreign country for such permission. If in fact no ad interim registration had been obtained by the party named in the notice of copyright, the probabilities are that no answer would be given to their request, or it is possible that permission would be refused, or that it would be granted only upon the payment of a stated amount. The result would be either a great delay in the progress of the American author's work, or the exaction of a fee where none could be properly claimed, or the denial of the right to use the foreign work where in fact the work was in the public domain and no such right of denial existed.

3. Until ad interim registration is obtained, it is impossible to tell whether the book is in the public domain or will be protected by copyright. Section 2 of the act gives the foreign author and publisher 6 months in which to apply for ad interim protection. It is highly desirable that every incentive be provided to cause the foreign author and publisher to apply for copyright as soon after publication abroad as may be possible so that the period in which the work is neither copyrighted nor is in the public domain may be cut to a minimum. The requirement that ad interim registration be obtained before any copies of the work may be imported, will have the effect of causing prompt registration for ad interim copyright.

For the foregoing reasons it is most important that ad interim copyright registration be made a prerequisite to the importation of the 1,500 copies.

Upon the hearing before the subcommittee the representative of the State Department testified that it was the desire of the State Department that these sections be not enacted at the present time for two reasons: First, because section 16, the manufacturing provision, should be entirely eliminated, although the amendment embodied in section 1 was a step in the right direction; and second, that Congress would, within the next few weeks, consider the Habana Charter, which might be so construed as to effect the elimination of the manufacturing clause of our copyright law. These contentions may be answered shortly.

1. It is a very grave question whether the manufacturing clause should be wholly abrogated. Unless a high duty were to be imposed upon the importation of books of foreign manufacture, the repeal of the manufacturing clause would result in the flooding of the American market with the products of cheap foreign labor. American publishers are well aware of the type of competition that foreign labor can offer American labor because of the flooding of the Philippine, Mexican, and other markets, of pirated editions of books published by American publishers, at a price representing only a fraction of the amount which the American publisher must necessarily charge in order to make a minimum profit.