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diff --git a/40613-8.txt b/40613-8.txt deleted file mode 100644 index 567b4f1..0000000 --- a/40613-8.txt +++ /dev/null @@ -1,15298 +0,0 @@ -The Project Gutenberg EBook of Arguments before the Committee on Patents -of the House of Representatives, conjointly with the Senate Committee on Patents, on H.R. 19853, to amend and consolidate the acts respecting copyright, by United States Committee on Patents - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: Arguments before the Committee on Patents of the House of Representatives, conjointly with the Senate Committee on Patents, on H.R. 19853, to amend and consolidate the acts respecting copyright - June 6, 7, 8, and 9, 1906. - -Author: United States Committee on Patents - -Release Date: August 29, 2012 [EBook #40613] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK ARGUMENTS ON COPYRIGHT *** - - - - -Produced by Mark C. Orton and the Online Distributed -Proofreading Team at http://www.pgdp.net (This book was -produced from scanned images of public domain material -from the Google Print project.) - - - - - - -ARGUMENTS BEFORE THE COMMITTEE ON PATENTS - -OF THE HOUSE OF REPRESENTATIVES, - -CONJOINTLY WITH THE SENATE COMMITTEE ON PATENTS, - -ON H.R. 19853, - -TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT. - - -JUNE 6, 7, 8, AND 9, 1906. - - -COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, - -FIFTY-NINTH CONGRESS. - - FRANK D. CURRIER, NEW HAMPSHIRE, _Chairman_. - SOLOMON R. DRESSER, PENNSYLVANIA. - JOSEPH M. DIXON, MONTANA. - EDWARD H. HINSHAW, NEBRASKA. - ROBERT W. BONYNGE, COLORADO. - WILLIAM W. CAMPBELL, OHIO. - ANDREW J. BARCHFELD, PENNSYLVANIA. - JOHN C. CHANEY, INDIANA. - CHARLES McGAVIN, ILLINOIS. - WILLIAM SULZER, NEW YORK. - GEORGE S. LEGARE, SOUTH CAROLINA. - EDWIN Y. WEBB, NORTH CAROLINA. - ROBERT G. SOUTHALL, VIRGINIA. - JOHN GILL, JR., MARYLAND. - EDWARD A. BARNEY, _Clerk_. - - -WASHINGTON: -GOVERNMENT PRINTING OFFICE. -1906. - - - - -Transcriber's Note: Printer's inconsistencies in spelling, punctuation -and hyphenation have been retained. In this etext a caret (^) is used to -indicate that the character following it is printed as superscript text. - - - - -ARGUMENTS ON H.R. 19853, TO AMEND AND CONSOLIDATE THE ACTS RESPECTING -COPYRIGHT. - - -COMMITTEE ON PATENTS, - -HOUSE OF REPRESENTATIVES, - -_Wednesday, June 6, 1906_. - -The committee met at 10 o'clock a.m.; at the Senate reading room, -Library of Congress, conjointly with the Senate Committee on Patents. - -Present, Senators Kittredge (chairman), Clapp, Smoot, Foster, and -Latimer; Representatives Currier (chairman), Bonynge, Campbell, Chaney, -McGavin, Sulzer, and Webb. - -The CHAIRMAN. We are met to consider Senate bill 6330, -relative to the copyright law. We would like to hear first from Mr. -Putnam regarding the history of the proposed legislation. - - -STATEMENT OF HERBERT PUTNAM, ESQ., LIBRARIAN OF CONGRESS. - -Mr. PUTNAM. Mr. Chairman and gentlemen of the committee, the origin of -this bill is indicated in the message of the President to Congress last -December. The passage is brief; let me read it: - - Our copyright laws urgently need revision. They are imperfect in - definition, confused and inconsistent in expression; they omit - provision for many articles which, under modern reproductive - processes, are entitled to protection; they impose hardships upon - the copyright proprietor which are not essential to the fair - protection of the public; they are difficult for the courts to - interpret and impossible for the copyright office to administer - with satisfaction to the public. Attempts to improve them by - amendment have been frequent, no less than twelve acts for the - purpose having been passed since the Revised Statutes. To perfect - them by further amendment seems impracticable. A complete revision - of them is essential. Such a revision, to meet modern conditions, - has been found necessary in Germany, Austria, Sweden, and other - foreign countries, and bills embodying it are pending in England - and the Australian colonies. It has been urged here, and proposals - for a commission to undertake it have, from time to time, been - pressed upon the Congress. - - The inconveniences of the present conditions being so great an - attempt to frame appropriate legislation has been made by the - Copyright Office, which has called conferences of the various - interests especially and practically concerned with the operation - of the copyright laws. It has secured from them suggestions as to - the changes necessary; it has added from its own experience and - investigation, and it has drafted a bill which embodies such of - these changes and additions as, after full discussion and expert - criticism, appeared to be sound and safe. In form this bill would - replace the existing insufficient and inconsistent laws by one - general copyright statute. It will be presented to the Congress at - the coming session. It deserves prompt consideration. - -So far the message. It did not contain what was the fact as to the -origin of this project, that it did originate in an informal suggestion -on the part of the chairman of this committee. - -The conferences to which it refers were not open, public meetings; they -were not conventions; they were conferences, and conferences of -organizations--that is to say, associations representing a group of -interests; and those organizations were specially invited, additions -being made to the list later as suggestions were made of others that -should be added. - -The organizations selected were the most representative organizations -that we could think of or that were brought to our attention as having -practical concern in the amelioration of the law, but especially, of -course, those concerned in an affirmative way--that is to say, in the -protection of the right. They were nearly thirty in number. The list of -them and their representatives is before you. - -(The list referred to was, by direction of the committee, made a part -of the record, and is as follows:) - - _List of associations invited to take part and the delegates - nominated to be present at the conference on copyright, together - with other participants._ - - - AUTHORS. - - American (Authors') Copyright League: Edmund Clarence Stedman^1,^2, - president; Richard R. Bowker, vice president; Robert Underwood - Johnson^1,^2, secretary; Edmund Munroe Smith, acting secretary (not - present). - - National Institute of Arts and Letters: Edmund Clarence - Stedman^1,^2, president; Brander Matthews^1,^2. - - - DRAMATISTS AND PLAYWRIGHTS. - - American Dramatists Club: Bronson Howard, president; Joseph I. C. - Clarke^1, first vice president; Harry P. Mawson^1,^2, chairman - committee on legislation; Joseph R. Grismer^1, committee on - legislation; Charles Klein^3. - - Association of Theatre Managers of Greater New York: Charles - Burnham^1, first vice president; Henry B. Harris^1, secretary. - - - ARTISTS: PAINTERS, SCULPTORS, ARCHITECTS. - - American Institute of Architects: Glenn Brown, secretary. - - Architectural League of America: D. Everett Waid^1,^2. - - National Academy of Design: Frank D. Millet. - - National Sculpture Society: Daniel Chester French^3, president; - Karl Bitter^2,^3, vice president. - - Society of American Artists: John La Farge^1, president; John W. - Alexander^1,^2. - - - COMPOSERS. - - Manuscript Society: Miss Laura Sedgwick Collins^1 (charter member), - F. L. Sealy^2. - - - PUBLISHERS. - - American Publishers' Copyright League: William W. Appleton, - president; George Haven Putnam^2,^3, secretary; Charles - Scribner^1,^2, treasurer; Stephen H. Olin^2,^3, counsel. - - Association of American Directory Publishers: W. H. Lee^2,^3, - president; W. H. Bates, secretary; Alfred Lucking^3, counsel; - Everett S. Geer^3, president Hartford Printing Company; William E. - Murdock^3, trustee of the Association of American Directory - Publishers; Ralph L. Polk^3, trustee of the Association of American - Directory Publishers; S. T. Leet^3. - - - PUBLISHERS OF NEWSPAPERS AND MAGAZINES. - - American Newspaper Publishers' Association: Don C. Seitz^1,^2, - acting chairman copyright committee; John Stewart Bryan^1,^2, - copyright committee; Louis M. Duvall^1,^2, copyright committee; - Thos. J. Walsh^2, at the request of Mr. Seitz. - - Periodical Publishers' Association of America: Charles - Scribner^1,^2. - - - PUBLISHERS OF ARTISTIC REPRODUCTIONS: LITHOGRAPHERS, PHOTOGRAPHERS. - - National Association of Photoengravers: B. W. Wilson, jr.^2 - - Photographers' Copyright League of America: B. J. Falk, president; - Pirie MacDonald; A. B. Browne^3, counsel. - - Print Publishers' Association of America: W. A. Livingstone, - president; Benjamin Curtis^3, secretary; George L. Canfield^3, - counsel. - - Reproductive Arts Copyright League (Lithographers' - Association--East): Robert M. Donaldson, president: Edmund B. - Osborne^2, vice-president; A. Beverly Smith, secretary; Fanueil D. - S. Bethune^2,^3, counsel. - - - PUBLISHERS OF MUSIC. - - Music Publishers' Association of the United States: J. F. - Bowers^2,^3, president; Charles B. Bayly^3, secretary; George W. - Furniss, chairman copyright committee; Walter M. Bacon, of - copyright committee; Nathan Burkan^2,^3, counsel; A. R. Serven,^3 - counsel; Leo Feist^3; Isidore Witmark^3; R. L. Thomæ,^2,^3 (Victor - Talking Machine Company, of Philadelphia). - - - PRINTERS AND LITHOGRAPHERS. - - United Typothetæ of America: Isaac H. Blanchard^1, of executive - committee; Chas. W. Ames^2,^3. - - International Typographical Union: J. J. Sullivan, chairman I. T. - U. copyright committee; P. H. McCormick, president, and George J. - Jackson, organizer, of New York Typographical Union No. 6. - - Central Lithographic Trades Council: W. A. Coakley^3. - - - EDUCATIONAL INSTITUTIONS. - - National Educational Association: George S. Davis^1, associate city - superintendent of schools; Claude G. Leland^2, librarian board of - education of New York. - - - PUBLIC LIBRARIES. - - American Library Association: Frank P. Hill, president; Arthur E. - Bostwick. - - - BAR ASSOCIATIONS. - - American Bar Association--Advisory committee: Arthur Steuart^1,^3, - chairman; Edmund Wetmore^2, Frank F. Reed (not present). - - Association of the Bar of the City of New York--Advisory committee: - Paul Fuller^3, chairman; William G. Choate, John E. Parsons, John - L. Cadwalader, Edmund Wetmore^2, Henry Galbraith Ward, Arthur H. - Masten. (Of this committee, appointed after the second conference, - only Mr. Fuller was present.) - - - MISCELLANEOUS. - - International Advertising Association: Will Phillip Hooper^1,^2; - James L. Steuart^2, counsel. - - The Sphinx Club: Will Phillip Hooper^1,^2. - - - OTHERS PRESENT, BUT NOT FORMALLY PARTICIPATING. - - Samuel J. Elder, of Boston; André Lesourd^3, of New York; A. Bell - Malcomson^3, of New York; Ansley Wilcox^3, of Buffalo; A. W. - Elson^2,^3, of Boston; Gen. Eugene Griffin^3, of New York; Charles - H. Sergel^3, of Chicago. - - Librarian of Congress, Herbert Putnam. - - Register of Copyrights, Thorvald Solberg. - - Commissioner of Patents, Frederick I. Allen (was not present, but - submitted written suggestions). - - Department of Justice, Henry M. Hoyt^3, Solicitor-General (present, - but not formally participating); William J. Hughes^2,^3, of the - Solicitor-General's Office (present, but not formally - participating). - - Treasury Department, Charles P. Montgomery, of the Customs - Division. - - NOTE.--Persons marked ^1,^2, or ^3 were present only at the - sessions thus indicated. The absence of a mark following a name - indicates attendance at all three sessions. - -Mr. PUTNAM. These men are the writers of books, the writers of plays, -the composers of music, the architects, painters and sculptors, the -photographers and photoengravers, the publishers of books, newspapers, -periodicals, music, and prints, and the manufacturers, printers, -typographers, and lithographers. The conference included, therefore, -those interests that abroad are considered primary in such a -matter--that is, the creators of the works which are to be protected -and the publishers through whom the property in these becomes effective -and remunerative; but it included under each of these genera several -species and various subsidiary interests. It included the National -Educational Association and the American Library Association as -representing to some extent the consumers; and in addition to the legal -counsel representing special interests it included two committees of -the American Bar Association and of the New York Bar Association of -experts upon copyright law, who gave gratuitous service as general -advisors to the conference and in the framing of the bill. - -Upon questions of importation the conference had the benefit of -information and advice from a representative of the Treasury -Department, expert in the practice of that Department at ports of -entry. The Solicitor-General, whose name appears upon the list, was not -a formal participant, but his representative was present throughout as -an observer of the proceedings; and if I do not emphasize the aid which -he and which the Solicitor-General himself, in later informal criticism -and suggestion, rendered, it is only because the practice of his office -forbids him to take part in the initiation of legislation; and his -assistance in this matter must not be taken as a precedent to his -inconvenience. - -The conference held three meetings in June and November of last year -and in March of this year, but, of course, as a conference it included -various minor consultations and much correspondence. At the outset of -the meeting last June each organization was invited to state the -respects in which it deemed the present law defective or injurious, -either to its own interest, or, in its opinion, to the general -interest. The second conference had before it a memorandum prepared by -the register embodying provisions deemed by the office important for -consideration at that stage. The third conference, in March of this -year, had before it a revision of this memorandum. The last conference, -this third, resulted in the draft of a bill, which was sent to each -participant for comment and suggestion, and the bill itself is before -you. - -We would have no misunderstanding as to what this bill is. It is a bill -resulting from the conference, but it is not a conference bill; for the -conference did not draw it, nor did it by explicit vote or otherwise -determine its precise provisions. It is rather a copyright office bill. -The office submits it as embodying what, with the best counsel -available, including the conferences, it deems worthy of your -consideration, in accordance with your previously expressed desire. In -calling the conferences and in submitting the draft it has proceeded -upon your suggestion. Apart from the chapter relating to its own -administration, it has no direct interest in the bill, except its -general interest to secure a general amelioration of the law. It does -not offer the bill to you as the unanimous decision of a council of -experts, for it contains certain provisions as to which expert opinion -as well as substantial interest was divided. It does not offer to you -the bill as one that has passed the test of public discussion, for it -has only now come before the public. It knows already of objection to -certain of its provisions--objection which will be entitled to be heard -by your committee; and it is informed by one critic that his objections -are sufficient to cover fully one-half of the provisions of the bill. - -The bill comes before you with precisely that presumption to which its -history entitles it--no less, but no more. - -The conference had certain aids prepared in advance by the copyright -office, which were embraced in these particular publications, setting -forth the present law in this country and all previous enactments in -this country--a bibliography, indeed, of all bills introduced into -Congress, all amendments of the copyright laws, and the laws in foreign -countries so far as they could be epitomized. - -The conferences occupied eleven days in all, of twenty-two -sessions--two sessions a day. Their labors are evidenced by these four -volumes, which are the stenographer's record of the proceedings. The -sincerity of their endeavor to secure a result that should be -scientific yet conservative, is, perhaps, evidenced by the brevity of -the bill. The memorandum of last November contains some 16,000 words; -that of March contains some 11,000 words; the bill contains slightly -over 8,000 words. I believe that the present group of statutes -embodying the existing law will contain somewhat over 4,000 words; and -they are alleged to be imperfect and neither systematic nor organic. - -The bill attempts to be both. It is, as you see, divided into eight -chapters, with some supplementary miscellaneous provisions. I say that -it is divided into chapters--that is, recited in the contents of the -bill as printed officially and set forth in marginal references in the -bill as printed at the Library. These chapters deal with the nature and -extent of copyright, the subject-matter of copyright, who may obtain -copyright, how to secure it, the duration of it, the protection and the -transfer of copyright, and the copyright office. - -I have furnished to your committee some analysis of it. That analysis -is contained in the printed statement marked "Memorandum," of which -there are additional copies here dated June 5, including those before -you, containing some slight changes from those sent out to members of -your committee. I would ask to have this one, dated on the outside June -5, considered the recent one. - -(The memorandum above referred to was, by direction of the committee, -made a part of the record, and the same is as follows:) - - - MEMORANDUM. - - A.--_Some leading features._ - - As the present law consists of but a group of statutes, and - the proposed bill is systematic and organic in form, the changes - which it introduces other than mere abrogations are not easily - explained by mere reference to the existing statutes. Throughout - attempt has been made to substitute general terms for particular - specifications, to provide for a protection as broad as the - Constitution contemplated, and to insure that no specification - shall tend to limit unduly either subject-matter or the protection. - Important respects in which the bill modifies or amplifies existing - law are as follows: - - _Nature and extent._--Section 1, like section 9, is fundamental. - The existing law (Rev. Stat., sec. 4952) specifies as the exclusive - right "the sole liberty of printing, reprinting, publishing, - completing, copying, executing, finishing, and vending;" of public - performance or representation; and of dramatization or translation. - The bill omits the specifications "printing, reprinting, - publishing, completing, executing, and finishing," but attempts - others intended to be fully as broad. [Please see sec. 1.] It adds - the right of oral delivery in the case of lectures, and the right - to make, sell, distribute, or let for hire any device, etc., - especially adapted to reproduce to the ear any musical work, and to - reproduce it to the ear by means of such a device; but these latter - are limited to works hereafter published and copyrighted. - - The copyright is to protect "all the copyrightable component parts - of the work copyrighted and any and all reproductions or copies - thereof in whatever form, style, or size." - - _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 Constitution intended. Certain specifications - follow, but coupled with the proviso that they shall not be held to - limit the subject-matter. - - The specifications [sec. 5] substitute, so far as possible, general - terms for particulars. They omit, for instance, the terms - "engravings, cuts, lithographs, painting, chromo, statue, and - statuary." They assume, however, that these will be included under - the more general terms as "prints and pictorial illustrations," 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 entitled 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, passed 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 - illustrations and separate lithographs, but abrogates it in the - case of photographs. - - The articles required to be deposited are to be entitled 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 assignee 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 constitute 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 - assessed" 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 instituted "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 title 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 classes at stated intervals, with authority to destroy the - manuscript 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 documents. - - 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 - accumulations 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 - Constitution, 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 entitling 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 title or description - abolished. "Photographs" omitted from the "manufacturing clause." - ["Chromos" also, in terms, but assumed 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 - assent of the American copyright proprietor, and the two copies at - a time are throughout reduced to one. The privilege of societies - and institutions (under the act of October 1, 1890) is no longer to - include the importation, without such assent, 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 - institution 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." - - Sections 4963, page 13; 4964, page 14; 4965, page 15; 4966, page - 16.--Penalties imposed for acts in the nature of misdemeanors no - longer to be shared by the United States with "a person" suing for - them; sums recovered by way of compensation to the copyright - proprietor not to be shared by him with the United States. All - infringements willful and for profit made misdemeanors, and the - remedies provided by sections 4965 and 4966, including the - specifications of a definite sum for each infringing copy, etc., - and a minimum and maximum total are expressed definitely as - compensation to the copyright proprietor rather than penalties. - - Section 4964, page 14.--Witnesses not to be required for the - written consent of the copyright proprietor. - - Act of March 3, 1891, page 18.--Only one fee to be required in case - of several volumes, or numbers or (in certain cases) parts of a - series deposited at the same time with a view to a single - registration. - - Act of January 7, 1904, page 19.--Omitted as obsolete. - -I have particularly noted in this memorandum the points in which the -bill intentionally abrogates existing law and the more significant -respects in which it modifies or amplifies it. The respects in which it -intentionally abrogates existing law are very few, as shown in Part B -of the memorandum. The phraseology of existing law is only here and -there recognizable in the bill. That is because the bill attempts to be -systematic and organic, and, second, because it has sought general -terms, wherever descriptive, rather than particular specifications. -Especially has it preferred this where the specifications might be -limiting. This, as I have noted in the memorandum submitted to you, is -particularly illustrated by the treatment of the "subject-matter." The -bill contains only the general statement that the subject-matter is to -include "all the works of an author," leaving the term "author" to be -as broad as the Constitution intended; and, as you know, the courts -have followed Congress in construing it to include the originator in -the broadest sense, just as they have held "writings," as used in the -Constitution, to include not merely literary but artistic productions. - -After this general statement certain specifications follow in the bill -of particular classes under which a particular application is to be -made in the office, but these specifications are coupled with the -proviso that they shall not be held to limit the subject-matter. The -specifications so far as possible also substitute general terms for -particulars. They omit, for instance, the terms "engravings, cuts, -lithographs, painting, chromo, statues and statuary." They assume, -however, that all of these articles will be included under the more -general terms, as "prints and pictorial illustrations" 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 (for -instance, of applied design, not yet within the province of design -patents), which may properly be entitled to protection under the -copyright law. - -The attempt to substitute general terms for particulars is evidenced -also in the definition of the right, and of the acts which constitute -an infringement of the right. The present statute (sec. 4952) defines -the right to consist in the sole liberty to do certain things. The bill -(sec. 1) defines the right to be the sole and exclusive right to do -certain things, and it specifies those things; but its specifications -are in terms very different from those in the present statute. - -The present statute (secs. 4965 and 4966) specifies certain acts which -are to be deemed an infringement. The bill, having defined the right of -the copyright proprietor as the exclusive right to do certain things, -defines an infringement to consist in the doing or causing to be done -without his consent of any of those things, the right to do or -authorize which is exclusively reserved to him. It contents itself with -this, adding only the one specification that "any reproduction," -without his consent, "of any work or material part of any work in which -[his] copyright is subsisting," shall be an infringement. - -So as to the person who may obtain copyright: The present statute -mentions the "author, inventor, designer, or proprietor," and elsewhere -the "originator." The bill rests with the term used in the -Constitution, "author," adding only "proprietor," which is not merely -in the existing statutes, but has been construed in a series of -judicial decisions. - -Copyright consists of the exclusive right within a defined period to do -certain things with certain subject-matter and to prevent other people -from doing these things. The fundamental provisions of the copyright -law are therefore these four: - -What is the subject-matter? - -What are the acts? - -How may the exclusive right to do them be secured? - -And who may secure it? - -Upon the third point, "How may the right be secured?" the bill modifies -substantially the existing requirements of law. These make deposit and -registration in the copyright office a condition precedent. They -require the deposit to be at least coincident with the publication, and -they stipulate that failure to comply precisely with this requirement -shall avoid the copyright ab initio. - -The bill, in section 9, initiates the copyright from the date of the -publication of the work, with the notice of copyright affixed. So, in -effect, does the present law initiate the copyright from that date, -provided the deposit and registration be effected then; but by the bill -the publication with notice not merely initiates the copyright, it -"secures" it. That is the expression used in the bill. - -Deposit and registration in the copyright office are still requisite, -but a reasonable period after publication is allowed for them. The -period is thirty days, and in the case of error or omission may be even -an entire year, but with the proviso that after the thirty days no -action for infringement may be brought until these requirements have -been complied with. The right is to be exclusive for a limited period. -This period is now twenty-eight years, with a possible renewal for -fourteen years--a maximum, therefore, of forty-two years. The bill -abolishes renewals and provides for three terms, according to the -subject-matter. The shortest is twenty-eight years for labels and -prints relating to articles of manufacture heretofore registered in the -Patent Office, but which the bill proposes to be taken over into the -copyright office. The second term, fifty years, is substantially -identical with the present possible maximum of forty-two. It applies to -some original and to all derivative works. It would probably cover the -majority of copyright entries during any particular period--the -majority in number, I do not say in importance. The longer term--the -life of the author and fifty years after his death--applies only to -original works, but applies to most of those. - -As to the merit of these terms, Mr. Chairman, and their necessity you -will hear discussion. I merely call your attention to them with, -however, these suggestions, which I feel in duty bound to communicate, -because they have been so insistently urged upon us: - -First, that the present term, a maximum of forty-two years (and that a -conditional maximum), does not insure to the author his copyright even -throughout his own life, and it makes no certain provision for his -immediate family after his death. These are admittedly grave defects, -and they are perhaps not met by the fact--it is a fact--that at present -the privilege of renewal is taken advantage of by only a small -percentage of the authors or their families. - -The second is, that a term as long as life and fifty years exists in -fifteen countries, including France; that England, with the minimum -term of life and seven years proposes a term of life and thirty years, -and that Germany, with a term of life and thirty years, is -discussing--informally thus far, but is discussing a term of life and -fifty years. - -The third suggestion is that a common disposition to question a long -term for copyright, on the ground that a short term suffices for -patents, is based upon false analogy. Literary and artistic productions -and useful inventions may be equally the creations of the mind, and -they are coupled in the Constitution; but they are coupled, it is -pointed out, only as deserving protection. Their character, and the -duration of the protection required by each, may be very different. It -is alleged to be very different. The monopoly is different; the returns -to the creator are different, and the interests of the public are -different in the two cases. The monopoly by patent in an invention is a -complete monopoly of the idea. The monopoly by copyright in a literary -or artistic work is a monopoly merely of the particular expression of -the idea. The inventor's exclusive control of his idea, it is said, may -bar innumerable other inventions, applications of his idea, of -importance to the public, while the author's or artist's exclusive -control of his particular expression bars no one except the mere -reproducer. The returns to an inventor are apt to be quick; the returns -to an author are apt to be slow, and the slower in proportion to the -serious character of his book, if a book. The returns to a successful -inventor are apt to be large; the returns to even a successful author -or artist are not apt to be more than moderate. - -Then the idea, it is said, covered by an invention or discovery, may -concern the essential welfare, even the lives, of the community, and -should be freely available at the earliest possible moment not unjust -to the creator of it. Now, it is remarked that no particular book, at -least none currently copyrighted to-day, can be said to be essential to -the welfare or protection of the community. Many a man's pleasure may -be enhanced by it, some men's profit; but no man's essential welfare -depends upon it, and no man's life, save, perhaps, the author's own. - -I communicate those suggestions as having been pressed upon us. - -In no respect are the present statutes alleged to be less satisfactory -than in their provisions for the protection of the right, and redress -to the copyright proprietor for invasion of it. One inconvenience is -that they provide a different class of remedies and recoveries for -different subject-matter; another is that they seem to confuse the duty -of the Government to punish a deliberate infringement as it would -punish any other theft with the right of the copyright proprietor for -compensation for his particular losses. The bill attempts to provide -uniform remedies, and it divorces the civil action from the criminal. -As the memorandum states it, "Penalties imposed for acts in the nature -of misdemeanors are no longer to be shared by the United States with a -person suing for them;" nor "are sums recovered by way of compensation -to the copyright proprietor to be shared by him with the United -States." Nor is his right to recover such sums to be imperiled by the -necessity of proving that the defendant has committed an offense -against the community as well as profited at his expense. - -The deliberate theft of a dramatic or musical composition by the -willful performance of it for profit, without the assent of the owner, -author, or copyright proprietor, is now by law a misdemeanor. The -conference could not see why this provision should not apply to any -infringement which is both willful and for profit, and section 25 of -the bill extends it to all such. - -The existing provision (sec. 4966, Rev. Stat.) which provides remedies -and penalties for infringement of dramatic and musical copyrights, is -of great moment to the dramatists and composers; and now that it is -merged in the general provisions of this and other sections of the bill -they are in great apprehension lest it may suffer accident, if accident -befall these. To guard against this the general repealing clause of the -bill excepts and continues in force section 4966 of the Revised -Statutes, but it does so with the intention that this exception shall -be dropped in case the general provisions stand. - -The reason or merit of these and other provisions of the bill will at -the proper time have to be made clear to you, if challenged. That is -no part of my present duty, which is merely to introduce the bill to -your attention, with some explanation as to how it came to be, and -some note as to its leading features. But I except two matters, and I -do so to avoid misapprehension; and I feel free to do so because both -involve the administration of the copyright office. One is as to -fees. The impression has gone out that the fee for registration is to -be doubled. The fee for registration is now 50 cents, but 50 cents -additional is charged for a certificate when furnished. The proposed -fee is $1, but this is to include the certificate, which is to be -furnished in all cases and as a matter of course. It ought to be -furnished, in the opinion of the office, and no claimant of copyright -ought to rest easy without it. It is the evidence of registration and -deposit--indispensable formalities, even hereafter--and it is now to -be prima facie evidence in a court of law of the facts which it sets -forth. - -If the copyright is worth the 50 cents for the registration, it seems -certainly worth the additional 50 cents for the certificate. But I note -here that objections are to be raised to the provision for fees, and -particularly as working hardships in some cases not made exceptions, as -the case of a series of studio photographs registered under one title -at the same time is made an exception. You will have some suggestions -as to cases in which the exaction of this fee, without some special -modification in certain cases, would work an undue hardship. - -On the other hand, the bill tends to reduce the aggregate fees payable -by any one publisher and the aggregate receipts of the office by -enabling a number of volumes of the same work, and in the case of -photographs, prints, and like articles, an entire series, if registered -at the same time, to be registered for a single fee. - -The other matter is that of copyright deposits. The volume of these is -now prodigious. During the last year alone the articles deposited -exceeded 200,000 in number. A large proportion of these are of great -value to the Library and are drawn up into it. The rest remain in the -cellar. The accumulations in the cellar now number a million and a half -items. Many of these would be useful in other Government libraries; for -instance, medical books in the library of the Surgeon-General's Office. -Some of them might be useful in exchange with other libraries. A few -might have value in exchange with dealers. The remainder are a heavy -charge upon the Government for storage and care, without any -corresponding benefit. They ought to be returned to the copyright -proprietors if they want them, or, if not wanted, destroyed. Such -dispositions are, I believe, already within the authority of law; but -it is fair that they should be expressed. The bill (secs. 58 and 59) -definitely expresses them. I ask your attention to them in due course. -They have been accepted by the conferences, and therefore by the -interests outside of the Government most nearly concerned with their -operation. But they may awaken some apprehension elsewhere because of a -quite common misunderstanding of the significance of the deposit and -its relation to the copyright protection. - -The original purpose of such deposits was the enrichment of the -Library. This is clear from their history, both in this country and -abroad. They were made a condition of securing copyright, but they had -no continuing relation to the copyright once secured. In England, for -instance, the copies required (now five) are to be for the use of the -libraries--five libraries--no one of which is the office of -registration for copyrights. The earliest act in this country was that -of Massachusetts, in 1783, which exacted a copy as a gift to the -library of the University of Cambridge, Harvard University, "for the -use of said university," which was not the office of copyright. The -earliest act providing for deposit in the Library of Congress, that of -1846, provided that the copyright proprietor should give one copy of -the book to this Library, and at the same time it provided that he -should give one copy to the library of the Smithsonian for the use of -that library. - -In 1867 the library of the Smithsonian became a part of the Library of -Congress. The act of 1870 provided two copies, both to be addressed to -the Library of Congress. But by that same act of 1870 the Library of -Congress became the office of registration for copyright; and from that -time, and because the failure to deposit not later than the date of -publication actually voided the copyright, an impression has grown up -that the articles deposited are an integral part of the record of -registration, and have a peculiar sanctity as such. The fact of the -deposit has been and will be an integral part of the record, and in -times past this could most readily be proved by the copies themselves, -the law providing neither for a certificate to the claimant admitting -the receipt of the deposit nor an entry in the official record showing -it. But hereafter the fact of deposit will be proved by the certificate -itself. - -There is an impression--a very natural one, too--that the copies -deposited are necessary evidence of the thing copyrighted, and -essential as such in litigation. Now, during the past thirty-six years -the copyright office has record or memory of only four cases in which -articles deposited have been summoned into court, and an authority on -copyright litigations remarks that in three of these he is quite -certain that the reason was a fanciful one, and in the fourth he did -not see any necessity for it. - -For the matter of that, however, there is little prospect that any -article of sufficient importance to be a subject of litigation would be -deliberately destroyed, or would fail to be drawn into the permanent -collections of the Library--at least one copy of it. - -Mr. Chairman, having indicated something of what the bill is, let me -say a word as to what it is not, in intention. - -First. It is not an attempt to codify the common law. The conservative -bar was very fearful that it would be. Even more than the present -statutes, it leaves to the courts to determine the meaning and extent -of terms already construed by the courts. It does this even in cases -where the temptation to define was considerable and where foreign -statutes attempt a definition. For instance, Who is an author? What is -publication in the case of works not reproduced in copies for sale? -What is fair use? Now, many such definitions were proposed and -lengthily discussed, and omitted because they did not stand the test of -the best expert opinion of the most conservative advisers of the -conference, particularly the committees of the bar associations. - -Second. The bill does not, in intention, attempt to regulate relations -between authors and publishers which are or may be matter of private -contract. - -Third. It is not an attempt at abstract and theoretic perfection, nor -is it an attempt to transplant to this country theoretic or what might -be charged to be sentimental provisions of foreign law. It tries to be -a bill possible for this country at this time and under conditions -local here. It contains, therefore, some provisions which are, in our -judgment, neither theoretically sound nor according to modern usage -abroad nor satisfactory to particular participants in the conference. -These are a compromise between principle and expediency or between one -interest and another at the conference, between which we could not -decide for either extreme--I mean decide in the sense of bringing -before you a suggestion in this particular form. We had not any -decision in any other sense; we were not a commission. The bill is a -compromise. I doubt if there is a single participant in the conferences -whom it satisfies in every particular. - -Fourth--and I feel really, Mr. Chairman, in justice to the conferences, -after their year of labor, impelled to say this--the bill is not a mere -congeries of provisions proposed by a selfish group, each member of -which was considering solely his own particular interest. It contains, -of course, some provisions which concern only particular interests--for -instance, the provision as to sound records, or that as to affidavit of -domestic manufacturers. But these are easily distinguishable; we -suppose and we should hope that they would be distinguished, and -particularly so if, as we know to be true in the case of sound records, -there is to be definite objection before you against the bill as it -stands; and we should hope that that objection, with the arguments of -those with whom the proposal originated particularly, should be set -aside for special discussion distinct from the general discussion on -the bill as a whole. I say there are provisions which concern -particular interests, of course, particularly; but these we should hope -would be distinguished in your consideration of it. - -The bill is the result of a sincere attempt, as we have seen it, to -frame a reasonable general statute. I say "sincere," and I feel the -right to say it because I followed the conferences closely, and had the -best opportunity to judge of their temper and disposition. If some of -the interests were selfish in one direction, they were met by the -selfishness of others in another direction, and both were under -criticism from the general advisors and under the influence of the main -body. And neither such interests--and I am speaking of history now, of -course--neither such interests nor any other participant in the -conference initiated the conference, nor determined its composition, -nor controlled its proceedings. The conference was initiated by the -Copyright Office at your suggestion, Mr. Chairman. It was composed of -organizations invited by the office, and it was theoretically held in -the office. The Librarian presided at it, and except for the purpose of -some formal resolutions it never organized or in any other way passed -out of the control of the office. - -If the bill reveals some selfishness, it is perhaps condonable. It is -the selfishness of men trying to protect their own property; for of -course, as I have emphasized, the interests that were especially -invited to the conferences were those that are concerned in an -affirmative way with the protection of the right. The conferences were -not generally representative--completely representative--in other -respects. The bill has that purpose--that is, for the protection -particularly of the property. It comes before you for consideration on -the ground that it goes too far. It does not create, of course, a new -species of property; it merely recognizes a species of property created -by the Constitution and already recognized by statute. Its purpose is -simply to secure to the man who has created it a species of property -which peculiarly requires the protection of law, because the very act -which makes it remunerative to him lays it open to expropriation--that -is, the act of publication--and seems peculiarly entitled to the -protection of the law, because it is that act, and that alone, which -makes it of any use to the public; and of course it secures this -protection--not permanently, but only against untimely expropriation. - -It may be said that the public was not represented at the conferences. -The public in this matter would, I suppose, belong to one of four -classes: In the first place, the producer, the creator, with his -publisher and manufacturer; or, second, one who is to enjoy the work as -a consumer; or, third, one who wishes to utilize the work in some other -work, or to reproduce and market it for his own benefit, when this can -be done innocently; or, fourth, the student and critic of the rights -and obligations of property, and of the regulation of this by law. -There may be a fifth class, the mere pirate. He was not invited to the -conferences, and I suppose he would not be to your hearings. But the -innocent reproducer was not unrepresented at the conferences or in the -discussions. In fact, most of the producers were also reproducers, and -quite insistent upon their convenience as such. The original producers, -publishers, and manufacturers were there as of right, and the student -and critic through their interest and public spirit. As for the -consumers, two considerable groups were actually represented, and more -would have been if organizations could have been found to represent -them. Others also there spoke for them. - -But as I understand it, it is in the interest of the consumer just -because it is in the interest of the producer that copyright laws were -originally designed and were called for by the Constitution; and if -this proposed one fails fairly to regard that interest of the consumer, -its defects will surely be brought to your attention by the third great -estate which is jealous of those interests--the newspaper and -periodical press; for the bill is now before the public. - -Finally, Mr. Chairman, notwithstanding the labor put upon it, the bill -is doubtless still imperfect in expressing its intentions; and I have -no doubt that while it is under consideration those especially -concerned will ask leave to submit to you some amendments of -phraseology. I understand that any such amendments proposed by -participants in the conferences will be communicated first to the -copyright office, so that they may be formulated by the register for -your convenient consideration; and the office will gladly do the same -for any that may reach it from any other source. - -The relation of the office to this project has been peculiar, Mr. -Chairman, and that alone has excused me in introducing the bill to you. -But having introduced it, the office will, with your permission, -relapse into its more normal position of informant to your committee on -matters of fact, and an adviser when its opinion is asked. With the -general structure of the bill, including its phraseology, the office -will of course have especial concern. Upon the general principles -involved and upon matters of practice the office will naturally have -some opinions, and may not avoid ultimately expressing these, even -though in doing so it incidentally supports a provision which concerns -particularly a particular interest. It can not avoid this where a bill -is referred to it by your committee for its opinion, and still less can -it do it in the present case where it is itself in possession of the -reasons which induce the various provisions and the principles supposed -to underlie them. It must, as occasion requires and you think -necessary, expound the bill. Mere advocacy, however, Mr. Chairman, of -any particular provisions it must leave to others. - -Mr. Chairman, ordinarily I assume that in such a case as this those who -are in a sense proponents of the measure would be heard in the -affirmative in argument in support of the measure. It is my -understanding that in so far as the proponents can be said to be those -who participated in the conferences, they do not care for leave to make -any argument as such. Certain of them, representing typical interests, -would, however, be glad to submit a word or two in behalf of those -interests--a very brief word, no one of them speaking for more than -five minutes. We have thus far (which I am under duty to communicate to -you) notice of objections to two or three particular provisions and -then to the bill substantially as a whole. - -One of the particular provisions is that against reproduction of -copyrighted musical compositions by means of some device or appliance -for reproducing it to the ear. Another particular provision is that -which, in two respects, curtails the privilege of American libraries to -import foreign editions of works copyrighted here. - -Mr. CURRIER. It does so in more than two respects, does it not? - -Mr. PUTNAM. The present law permits two; the bill cuts the two to one. - -Mr. CURRIER. Yes; but there are various other restrictions embodied in -the bill, are there not? - -Mr. PUTNAM. In regard to libraries? - -Mr. CURRIER. In regard to importation for libraries. - -Mr. PUTNAM. Yes; there may be other points. I was speaking of the two. - -Mr. CURRIER. The individuals are cut out, are they not? - -Mr. PUTNAM. The individuals are cut out. - -Mr. CURRIER. That is one restriction. - -Mr. PUTNAM. They are noted as cut out. - -Mr. CURRIER. The number of books is reduced from two to one? - -Mr. PUTNAM. In all cases; yes. - -Mr. CURRIER. Then the phraseology is so changed that it must mean -something. When you say, "To any book published abroad," beginning on -page 16, "with the authorization of the author or copyright -proprietor," what does that mean? - -Mr. PUTNAM. Page 16 of the library print? - -Mr. CURRIER. Yes; it is subdivision E, page 16. - -Mr. PUTNAM. Section 30--"any book published abroad with the -authorization of the copyright proprietor"--that is, the authorized -foreign edition. - -Mr. CURRIER. Well, that phraseology is new. - -Mr. PUTNAM. I was not of the impression that the intent was new in -that. It refers to the foreign authorized edition as distinguished from -the foreign unauthorized edition, because the importation of any -unauthorized edition is prohibited as a fraudulent invasion of the -right. It may be, of course. If there is any diminution under that of -the present privileges of libraries, there is a group of librarians who -desire to be heard. I do not know that they had that so particularly in -mind as the exception under subsection 3. - -Mr. CURRIER. In subsection 3 there is still another new restriction, is -there not? - -Mr. PUTNAM. Yes. - -Mr. CURRIER. As to the privilege of importation without the consent of -the American copyright proprietor, etc.? - -Mr. PUTNAM. Yes. - -Mr. CURRIER. That is still another restriction? - -Mr. PUTNAM. Yes; two copies reduced to one, this prohibition of the -importation of the foreign edition of a book of an American author -published here of which there is an authorized American edition---- - -Mr. CURRIER. And the cutting out of the right of the individual? - -Mr. PUTNAM. And the cutting out of the right of the individual. I was -speaking of libraries first; yes. - -Mr. CURRIER. And then such restrictions as may be embodied in that -phraseology? - -Mr. PUTNAM. Yes; if there is any restriction there, that also. - -Mr. CURRIER. I understood some two months ago that an agreement had -been reached between the publishers and the librarians, satisfactory to -both, which was to be embodied in the bill. Was that the proposition -that is now a part of the bill? - -Mr. PUTNAM. I think that can best be answered, Mr. Currier, by Mr. -Bostwick, who is here, who was a participant in the conferences in -behalf of the American Library Association. That is the general -association of this country. Mr. Bostwick and Mr. Hill were the two -delegates to the meeting; and Mr. Bostwick will say whether this -provision is satisfactory to his association as an association. - -Mr. CURRIER. I simply desire to say that my mail is filled with -protests from librarians and from universities and colleges against -this restriction. - -Mr. PUTNAM. Yes; and as I was saying, Mr. Currier, we have already note -of that protest. Mr. Cutter, Doctor Steiner, and perhaps -others--certainly those two, however--Mr. Cutter being librarian of the -Forbes Library, at Northampton, and Doctor Steiner being librarian of -the Enoch Pratt Library, at Baltimore, are here in behalf of -remonstrants against any diminution of the present privileges of -libraries. I had understood that this provision as it stands had been -accepted by the representatives of the association simply as -participants in the conference. May Mr. Bostwick state as to that, Mr. -Chairman? I only suggest it because you asked the question. - -The CHAIRMAN. We have concluded that it is best to adopt the suggestion -to hear first the proponents of the bill and then, at a later period, -hear those who object to its provisions. - -Mr. PUTNAM. In that case, Mr. Chairman, if you will let me suggest, the -interests represented at the conference are easily classifiable. They -were the creators of literary productions, the authors; they were the -dramatists; they were the composers and the publishers of those -productions, the manufacturers, the reproducers; they were these two -associations, so far as we had them there, representing the consumers; -and then there were the two committees of the American Bar Association -representing our general legal advisers. - -Mr. Bowker is here representing the author class particularly. - -The CHAIRMAN. We will hear from Mr. Bowker. - -Mr. SULZER. Mr. Chairman, I would like to have it noted on the record -that I have received a letter from former Judge A. J. Dittenhoefer, the -well-known lawyer of New York City, who represents the American -Dramatists' Club and the Managers' Association, of New York, and who -desires to appear at some subsequent time in favor of certain -provisions in this proposed law. - -The CHAIRMAN. Does he desire to be heard if the committee is in favor -of them? - -Mr. SULZER. No; not if the committee is in favor of them. That is the -point. - -The CHAIRMAN. Perhaps that can be taken up, then, at a later date. - -Mr. SULZER. Yes. - - -STATEMENT OF RICHARD ROGERS BOWKER, ESQ., VICE-PRESIDENT OF THE -AMERICAN COPYRIGHT LEAGUE. - -The CHAIRMAN. Will you please state your name, Mr. Bowker, your -residence, and whom you represent? - -Mr. BOWKER. My name is Richard Rogers Bowker. I speak as vice-president -of the American Copyright League, commonly called the Authors' -Copyright League. - -Mr. Chairman, the American Copyright League, for which I speak as -vice-president in the absence of its president, Mr. Edmund Clarence -Stedman, who regrets in this letter that ill-health detains him in New -York, and who desires to be recorded as well satisfied with the bill as -a basis for Congressional consideration, and in the absence of our -secretary, Mr. Robert Underwood Johnson, of the Century, who has been -our sentinel for years in respect to all matters as to copyright -legislation, the American Copyright League asks that the first half -hour be devoted by your committee to the originators of copyright -property. - -Mr. Clemens, I understand, has reached Washington, and hopes to be -present at one of these sessions as a member of the council of our -league. Mr. Bronson Howard, the president of the American Dramatists' -Club, and also a vice-president of this league, I hope will be present -to speak for the dramatists. Mr. Sousa and Mr. Victor Herbert are here -to-day representing musical composers. Mr. Frank D. Millet is here as -the delegate of the National Academy of Design and of the Fine Arts -Federation, and possibly Mr. Carl Bitter, president, or Mr. Daniel C. -French, ex-president of the National Sculptors' Association, may also -be here. We ask that a half hour be given to those gentlemen presently; -and I shall occupy but five minutes or so of that time. - -The conference, sir, proceeded at its first session on a memorandum -which formed the basis for discussion, presented by the American -Copyright League; and I mention that to say that that memorandum -included two important suggestions which were not incorporated in the -bill--one the suggestion that the bill should be, as it were, a group -of bills, representing separately and distinctively the literary, -dramatic, musical, and artistic varieties of copyrightable property. An -honest endeavor was made to do that, but it proved not practicable and -workable. Again, members of our council, Mr. Stedman and Mr. Clemens -among them, desired very much that the authors should be safeguarded in -their relations with publishers by certain insertions in the bill. It -was held by the legal authorities that that was not a proper subject of -introduction in a copyright code; and on those two points the American -Copyright League, I think I am authorized to state, recedes from any -possible dissension. And I say it, sir, because there are doubtless -many points on which the several organizations would prefer to have -additions or omissions. - -A little girl I knew spoke of a compromise as something where everybody -got what they did not want. Now, in that sense this bill is not a -compromise. It represents, rather, the consensus of opinion of the -originators of copyrightable property, of the reproducers, publishers -and similar interests, and of representatives, as Mr. Putnam has told -you, of various other interests. On behalf of the league we believe, -sir, that you have before you a working basis for a just, broad, clear, -workable copyright bill; and we feel confident that such a bill will -emerge from your deliberations. - -We ask you, sir, to keep in mind two vital points: First, that the -rights of the producing classes shall be first of all thought of, but -not to the detriment of the great body of reproducers and readers, on -whom the author classes depend for the possibility of realizing from -their productions. As has been said to you, copyright is on a different -basis from patents, in that it not only does not interfere with the -rights or privileges of others as succeeding inventors, but that the -world is the better for any original work contributed by help of the -copyright laws to the community without detriment to anyone, and -therefore it should have a broader scope before you in copyright -legislation than in patent legislation; and we ask that in that view, -in that spirit, the rights of the producing classes shall be kept in -mind. - -Secondly, sir, this is a very difficult and complicated question. Those -of us who have met in conference have recognized most fully the care, -fairness, and wise consideration which have been given to all interests -by the copyright office and the difficulties under which a practical -bill has been framed. We ask you, sir, in your considerations in the -committee and in the discussions in Congress so far as they are shaped -by the committee, that you will keep in mind, sir, the importance of -keeping a consistent bill throughout these difficult provisions. The -copyright office has been of the greatest service to all of us in that -very function; and I have no doubt, sir, from our experience, that it -will be of the greatest service to your committee. - -The league had stood for a copyright commission instead of this -conference. But when we find this bill, sir, presented as the result of -only a year's work, and remember that the English copyright commission -took years to produce a draft which has not yet, after nearly a -generation, been enacted into law, we can not but express the greatest -satisfaction with the result now before you. We do not feel, sir, that -any bill can be presented to your committee which does not call for the -most careful consideration, for protest from outside interests, and for -discussion, not only in your committee and in the halls of Congress, -but throughout the public. We do not feel that any such bill would be -possible; and I wish very heartily, sir, to record the American -copyright league as favoring the fullest discussion and the fullest -consideration of any of what may be called the minority interests. We -believe that the interests of the office are perfectly consistent with -the interests of the public; and in that view, sir, we support most -heartily, individually and as members of the conference, the bill which -you have before you. - - -STATEMENT OF FRANK D. MILLET. - -Mr. MILLET. I shall have very little to say, Mr. Chairman. The artists -are interested in this bill because, as the committee undoubtedly -understands, the copyright of a picture is often, almost always, more -valuable to the artist than the original work--that is, of greater -money value. We have had long experience with the law, and we have not -found that we have been protected. So little protection has been -afforded that it is no longer the habit for the artist to copyright his -picture. We have gone out of the business of copyrighting, practically, -as you will find if you will go to any exhibition, because we have not -been able to get any relief in case our work had been infringed upon. -We have always objected to the copyright notice which we have been -obliged to put on the picture, because it is considered a -disfigurement. That is another reason why we have not copyrighted. That -has been a very great loss to us as a class. That has been one of the -reasons why we prefer, many of us, to spend much of our time abroad. - -If you will pardon me for a moment I will give a personal instance. - -I have painted in England and in Europe over twenty years. I never had -one bit of difficulty with my copyrights over there, and I have had -considerable income from my copyrights; and I think $7 or $8 is about -all the money I have ever gotten in America out of copyrights here. - -Since the conferences began last winter two of my pictures have been -reproduced by a journal in New York, one of them in color. They cut off -my name and copyrighted the picture themselves. In the case of the -other they left my copyright on and published it without my consent. I -have absolutely no redress, because the law says that I can get a -dollar for every copy found in their possession, and they were not -fools enough to have any copies in their possession, of course. I -relate this little personal tale, because that is what has been the -experience of all the artists, painters, and sculptors. - -We do not pretend to say that this bill, in these particular cases, or -in the first case of notice, meets our highest desire, because we would -like to have it exactly as it is abroad, no notice being required -whatever. But we met our friends, our dearest foes, the reproducers, -and made this compromise, which is satisfactory to us on the question -of the notice, as to what we shall put on the picture without -disfigurement, and we think that the bill is the best one that we could -possibly agree to, and we are all of us fully in favor of the bill as -it stands. - -I thank you. - -Mr. SULZER. Is the bill as it is drawn at present satisfactory to you? - -Mr. MILLET. It is satisfactory to us. - -Mr. SULZER. And you want it passed just as it is? - -Mr. MILLET. We would like to have it passed as it is. - -Mr. SULZER. That would protect the artists? - -Mr. MILLET. As far as we can make out, that would protect us. - -Mr. CURRIER. Is it the criminal remedy that is provided by this bill -that would give the protection you need? - -Mr. MILLET. That is one of the things. - -Mr. BONYNGE. What are the new remedies given to the artists by the -provisions of this bill? - -Mr. MILLET. At the end of the bill you will find them. - -Mr. CHANEY. Just state them from memory. - -Mr. MILLET. There is a misdemeanor clause that we are very keen on, the -same as for the dramatists. We do not see why it should not be a -misdemeanor, to apply to us as well as to the dramatists--sections 23 -and 25. - - -STATEMENT OF JOHN PHILIP SOUSA. - -Mr. SOUSA. Mr. Chairman, I would much rather have my brass band here. I -think it would be more appreciated than my words will be. [Laughter.] - -Mr. CHANEY. We would rather have you, just now. - -Mr. SOUSA. Thank you. - -Mr. Chairman, I would like to quote Fletcher, of Saltoun, who said that -he cared not who made the laws of the land if he could write its songs. -We composers of America take the other view. We are very anxious as to -who makes the laws of this land. We are in a very bad way. I think when -the old copyright law was made, the various perforated rolls and -phonograph records were not known, and there was no provision made to -protect us in that direction. Since then, the talking machines have -come out, and the claim is made that the record of sound is not a -notation. - -There are three ways for the composer to make a living by his music: By -sight or by sound or by touch. The notation of my compositions or the -compositions of any other composer for the blind must be entirely -different from the ordinary, because it must be read by the sense of -touch. The notation that is made for a combination of instruments is -brought out by sound. The claim that is made about these records is -that they can not be read by any notation--simply that no method has -been found to read them up to the present time, but there will be. Just -as the man who wanted to scan the heavens discovered a telescope to do -it. No doubt there will be found a way to read these records. - -We are entirely in favor of this bill. The provisions satisfy us, and -we want to be protected in every possible form in our property. When -these perforated-roll companies and these phonograph companies take my -property and put it on their records they take something that I am -interested in and give me no interest in it. When they make money out -of my pieces I want a share of it. - -Mr. SULZER. They are protected in their inventions? - -Mr. SOUSA. Yes, sir. - -Mr. SULZER. And why should you not be protected in yours? - -Mr. SOUSA. That is my claim. They have to buy the brass that they make -their funnels out of, and they have to buy the wood that they make the -box out of, and the material for the disk; and that disk as it stands, -without the composition of an American composer on it, is not worth a -penny. Put the composition of an American composer on it and it is -worth $1.50. What makes the difference? The stuff that we write. - -Mr. BONYNGE. What is the protection by the terms of this bill that is -given you? - -Mr. SOUSA. That in any production of our music by any of these -mechanical instruments they must make a contract with us or with our -publishers; that they must pay us money for the use of our -compositions. - -The publishers of this country make contracts with the composers, and -agree to give them a sum outright or a royalty on sales for each and -every copy that they publish and sell. - -The companies making records for talking machines take one copy of a -copyrighted piece of music and produce by their method a thousand or -more disks, cylinders, or perforated rolls. If they would buy one copy -from my publishers and owners of my copyright and sell that one copy, I -would have no objection; but they take the copyrighted copy and make -what they claim is a noncopyrighted copy, sell it, and do not give the -owner of the copyright a penny of royalty for its use; and they could -not do this if the composer had not written it and the publisher had -not published it, and I want to be paid for the use they make of my -property. - -Mr. WEBB. Does this affect records already made? - -Mr. CURRIER. No; it does not affect existing copyrights. - -Mr. SOUSA. No. That is a sop--I am willing to let it stand for the sake -of the future, but I think it is wrong. That is a sop to them, the -talking-machine companies, and hereafter they will make money after -this law passes on the pieces that I made before the law went into -effect. - -Mr. CHANEY. So that we will get "El Capitan" from the phonographs in -various places? - -Mr. SOUSA. Yes, sir; and I'll get nothing for it; and I am the man that -made "El Capitan." [Laughter.] - -I speak in the interest of the publishers and the composers, and some -of them asked me to come here because I could talk from the heart, and -I do. I am sure of what I say. There may be some interests opposed to -the bill for selfish reasons, but these interests know the bill simply -gives us rights we are entitled to. - -As to the artists, Mr. Millet said that he got $8.75 for one of his -pictures. You can take any catalogue of records of any talking machine -company in this country and you will find from 20 to 100 of my -compositions on it. I have yet to receive the first penny for the use -of them. - -There is another point to consider. These talking machines are going to -ruin the artistic development of music in this country. When I was a -boy--I was born in this town--in front of every house in the summer -evenings you would find young people together singing the songs of the -day or the old songs. To-day you hear these infernal machines going -night and day. [Laughter.] We will not have a vocal chord left. -[Laughter.] The vocal chords will be eliminated by a process of -evolution, as was the tail of man when he came from the ape. The vocal -chords will go because no one will have a chance to sing, the -phonograph supplying a mechanical imitation of the voice, -accompaniment, and effort. - -On this river, when I was a young man, we went out boating and the -music of young voices filled the air. - -Last summer and the summer before I was in one of the biggest yacht -harbors of the world, and I did not hear a voice the whole summer. -Every yacht had a gramophone, a phonograph, an æolian, or something of -the kind. They were playing Sousa marches, and that was all right, as -to the artistic side of it [laughter], but they were not paying for -them, and, furthermore, they were not helping the technical development -of music. Go to the men that manufacture the instruments that are -nearest the people--the banjo, the guitar, and the mandolin--and every -one of them will tell you that the sale of those instruments has fallen -off greatly. You can not develop music without these instruments, the -country singing school, and the country brass band. Music develops from -the people, the "folk songs," and if you do not make the people -executants, you make them depend on the machines. - -Mr. CURRIER. Since the time you speak of, when they used to be singing -in the streets---- - -Mr. SOUSA. Well, Mr. Currier, I am 50 years old---- - -Mr. CURRIER. I was just going to ask you: Since that time, the law has -been passed to protect the authors of musical compositions, which would -prohibit that. Is not that so? - -Mr. SOUSA. No, sir; you could always do it. - -Mr. CURRIER. Any public performance is prohibited, is it not, by that -law? - -Mr. SOUSA. You would not call that a public performance. - -Mr. CURRIER. But any public performance is prohibited by the law of -1897? - -Mr. SOUSA. Not that I know of at all. I have never known that it was -unlawful to get together and sing. - -Mr. CURRIER. It probably has not been enforced to that extent. - -Mr. MCGAVIN. You think it ought to be against the law for some people -to attempt to do it, do you not, Mr. Sousa? [Laughter.] - -Mr. SOUSA. Yes. - -Mr. CURRIER. It is possible that that has deterred the young people -from singing. - -Mr. SOUSA. Would you not consider it a greater crime to turn on a -phonograph---- - -Mr. CURRIER. I do not consider singing a crime. - -Mr. SOUSA. If you would make it a misdemeanor, do you not think it much -worse to have a lot of these machines going than to have a lot of fresh -young voices singing? - -Mr. CURRIER. I think a great many people in this country get a great -deal of comfort out of the phonograph. - -Mr. SOUSA. But they get much more out of the human voice, and I will -tell you why: The phonograph companies know that. They pay Caruso -$3,000 to make a record in their machine, because they get the human -voice. And they pay a cornet player $4 to blow one of his blasts into -it. [Laughter.] That is the difference. The people, the homes, want the -human voice. First comes the country singing school, and next comes the -country brass band. Let us do something to help them. You can do it by -making these people pay me for everything that I compose. [Laughter.] - - -STATEMENT OF VICTOR HERBERT, ESQ. - -Mr. HERBERT. Mr. Chairman and gentlemen, it is hardly necessary for me -to add anything, I think, to Mr. Sousa's statement. I think he has made -the question very plain and clear. - -I would like to say this, that both Mr. Sousa and I are not here -representing ourselves as individuals and our personal interests, but -we stand here for many hundreds of poor fellows who have not been able -to come here--possibly because they have not got the price--brother -composers whose names figure on the advertisements of these companies -who make perforated rolls and talking machines, etc., and who never -have received a cent, just as is the case with Mr. Sousa and myself. - -I do not see how they can deny that they sell their roll or their -machine, because they are reproducing a part of our brain, of our -genius, or whatever it might be. They pay, as Mr. Sousa said, the -singer who sings a song into their machines. They pay Mr. Caruso $3,000 -for each song--for each record. He might be singing Mr. Sousa's song, -or my song, and the composer would not receive a cent. I say that that -can not be just. It is as plain a question, Mr. Chairman, as it could -be, to my mind. Morally, there is only one side to it, and I hope you -will see it and recommend the necessary law. - -Mr. CURRIER. Just an incident: The talking machine company that pays a -singer gets no protection on that record under the law, either, does -it? - -Mr. HERBERT. I think they do. - -Mr. CURRIER. Could not a competing talking machine company immediately -reproduce those records? - -Mr. HERBERT. Well, they would go for them. - -Mr. CURRIER. I have an impression that there is no law under which they -could. - -Mr. HERBERT. I think they would. - -Mr. CURRIER. I think there is no protection at all. - -Mr. HERBERT. I know that we are not protected. Since the courts have -held that the perforated roll is not an imitation of the sheet music we -have absolutely no ground to stand on. - - -STATEMENT OF MR. HORACE PETTIT. - -Mr. PETTIT. I represent the Victor Talking Machine Company. While I am -not here as one of the advocates or proponents of the bill, it is very -fitting, I think, at this time, immediately after Mr. Sousa's and Mr. -Victor Herbert's appearance, that I should state what we have to say in -regard to the talking machines. It may be that Mr. Herbert and Mr. -Sousa have been somewhat abused by the talking-machine companies. They, -however, certainly do not show it in their appearance. - -Our position is to be equitable and just in the matter. We believe that -there should be protection, and we are willing that this bill, with -certain amendments we have to suggest, should be passed, substantially -on the lines indicated, so that the composer should have the protection -against his music or his compositions being copied on a record of a -talking machine; with the understanding, however, that it does not -apply to subsisting copyrights. I believe that is the understanding as -expressed, although there is some ambiguity in the language, and -therefore I would suggest that section 3, in that regard, be modified, -either by striking out the section or by adding to it. Section 3 reads -(reading): - - SEC. 3. That the copyright provided by this act shall - extend to and protect all the copyrightable component parts of the - work copyrighted, any and all reproductions or copies thereof, in - whatever form, style, or size, and all matter reproduced therein in - which copyright is already subsisting, but without extending the - duration of such copyright. - -I therefore would add to that, in view of that somewhat ambiguous -language: - - _And provided_, That no devices, contrivances, or appliances, - or dies, or matrices for making the same, made prior to the date - this act shall go into effect shall be subject to any subsisting - copyright. - -This, I believe, is the intention of the framers of the bill, although -it is somewhat doubtfully expressed. So much in that regard. - -Further, gentlemen, if the talking machine companies are to pay the -author and composer, as they will under this act if passed, a royalty -on the copyrighted compositions, the talking machine companies should -also be protected. We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, -or any of the opera singers, a thousand dollars for making a record. It -is perfectly possible, within the known arts, for that record, after we -have made it, to be reproduced by a mere copperplating process by -somebody else and copied, so that we would pay the thousand dollars or -so and have no protection against the party manufacturing a duplicate -of it. Therefore, not only for that reason, but for the other reasons -which I shall briefly mention, the talking machine manufacturers should -be entitled to register the particular records which they prepare, and -that, therefore, should be included in the act. - -The bill evidently is intended to cover talking-machine records, -although it is somewhat doubtfully expressed. - -Section 4 is the section upon which everything more or less hangs, and -that is [reading]: - - That the works for which copyright may be secured under this act - shall include all the works of an author. - -That is all that it says in that regard. The purport, however, is to -cover substantially everything that was covered by the former copyright -act. In section 18 the different things copyrighted are specified, in -which section the duration of the terms are provided. Section 18 -states, for instance: - - For twenty-eight years after the date of first publication in the - case of any print or label relating to articles of manufacture. - -Then comes a proviso, and then: - - (b) For fifty years after the date of first publication in the case - of any composite or collective work; any work copyrighted by a - corporate body or by the employer of the author or authors; any - abridgment, compilation, dramatization, or translation; any - posthumous work; any arrangement or reproduction in some new form - of a musical composition; any photograph; any reproduction of a - work of art. - -I would suggest that you include in there, on line 14 of page 14, after -the word "composition," the words "any talking-machine record;" so that -there would be no room for doubt but what talking-machine records are -intended to be included. - -For this purpose I would also amend section 5 (p. 4, lines 2 and 3) by -adding between lines 2 and 3, before the word "Phonographs," the -following: "(j) Talking-machine records." - -I want to say one more word in that regard: The talking-machine record -is a new art. At the time that the former acts were passed and the -Revised Statutes it had not acquired the state of perfection in which -it is to-day. The talking machine is a writing upon a record -tablet--not to be read visually, but audibly to be read through the -medium of a vibrating pencil engaging in the record groove. This -reproduces the thing that is uttered, in the characteristic manner in -which it is uttered, and therefore that particular thing ought to be -the subject-matter of a property right. - -For instance, we might say that a particular piece would be sung or -played by some country brass band, such as Mr. Sousa alludes to. The -instrumentation there of that particular piece as recorded would be as -different from the instrumentation of the particular piece when played -by Mr. Sousa himself, from the stage of one of the great opera houses, -as could be imagined; and what should be protected there is the -particular instrumentation as it is played by Mr. Sousa, as he has -rendered it. The same thing applies to any orator, or any actor, or any -recitationist. It is a picture of the voice, as perfectly as a -photograph is the picture of a man, or of a thing; and all the -personality and all the characteristics of speech of the man uttering -it are there recorded. - -Mr. BONYNGE. Do you mean that if that lecturer delivers the lecture to -one of the talking machines that you should take a copyright upon that -disk, or whatever it is, that record, I suppose is what you call it, so -as to prevent him from giving another reproduction of the same lecture -to another talking machine? - -Mr. PETTIT. No, sir. That would be his right. His lecture is -copyrightable. He has a perfect right to copyright that in the ordinary -manner, and he has the further right, if he pleases, to have it -copyrighted through the means of a talking-machine record, or, with his -permission, we could do so. But wherever the thing is primarily -copyrighted we could not use it in any sense without his permission. - -Mr. BONYNGE. Yes; but after he has copyrighted it and you have got his -permission to use it in your particular talking machine and have paid -him whatever you may have agreed to pay him as compensation for the use -of it, would you seek to prohibit him from giving that same lecture to -another talking machine? - -Mr. PETTIT. That would depend entirely on the terms of the contract; -but that is not the idea at all. It is merely the means of recording a -voice, the production of a particular man or band, or instrumentation, -with all the characteristics of that particular voice or -instrumentation, which we think should be subject to copyright. - -Mr. CHANEY. Do you not think, then, if you want that sort of an -amendment to section 18 that you should also amend section 4? - -Mr. PETTIT. No, sir; I do not think that is necessary. - -Mr. CHANEY. You think that includes it? - -Mr. PETTIT. I think section 4 is broad enough to include it. You will -understand that section 4 is understood to include a photograph. It is -understood to include everything which is the subject-matter of -copyright. - -Mr. CHANEY. I was just about to ask this: Understanding that this -talking machine is a new arrangement, and was invented later than the -date of the original copyright law, by that very fact it might be -necessary to mention it in section 4. - -Mr. PETTIT. Well, I assumed that the word "author," as used by the -Librarian of Congress in presenting the bill, was sufficiently broad to -include anything which was originated of that character: and, as -interpreted by the courts, for instance in the Sarony case (111 U. S. -Repts., 59), it has been decided that the word "writing" was broad -enough to include a photograph, and that therefore it would not be -necessary to amend section 4, provided section 18 had specifically in -it the words "talking-machine record," showing that it was meant to be -included. Of course I should not object to including it. I should not -object at all to having section 4 amended for that purpose, but I doubt -whether it would be necessary under the circumstances. - -Mr. CHANEY. You would be satisfied without its amendment? - -Mr. PETTIT. I think so, provided the talking-machine record was -inserted in sections 5 and 18. - -There should be no question but that the particular characteristic -utterances of a singer, or recitationist, or of an actor, or of an -orator, or the particular instrumentation of a pianist, or leader of an -orchestra, etc., independent of the composition itself, whether it is -copyrighted or not, should be equally entitled to protection, as a -photograph or reproduction of a work of art. - -The present-day thoughts and ideas may be recorded and reproduced -through this new form of writing--that is, by recording the uttered -sound upon a properly prepared surface in a sound groove, by which the -varied undulations of the voice are formed in the groove by -corresponding undulations, lateral or vertical. Here we have a true -writing of the voice, recording uttered sound, recording not only -words, thoughts, and ideas, but also recording the special particular -expression and characteristic method of speech employed by the person -uttering the sound. In other words, we have the exact voice, with all -its individuality recorded, to be reproduced through the medium of the -reproducing device employing a stylus operating in the groove. - -Certainly a sound record is within the contemplation of the -Constitution and should be unquestionably included in this proposed new -act relative to copyrights. - -It matters not whether the subject-matter of the record is otherwise -copyrightable or not. If the piece played is copyrighted as a musical -composition it can not be reproduced on a sound record, in accordance -with the bill, without the permission of the composer. A Paderewski, -however, may play the copyrighted selection, and a record of his -rendition of it, with all his personality and individuality thrown into -the piece, should be entitled to a copyright on a sound record for -reproducing purposes. - -This is true, also, of the voice of a Caruso or a Melba singing either -a copyrighted or uncopyrighted piece. It is true, also, as a further -illustration, of the recitation by Henry Irving of "Eugene Aram's -Dream." What is here copyrighted in these records is the individuality -and personality of the rendition by the performer. It is the picture of -the voice or of the instrumentation as, for instance, a copyrighted -photograph is a picture of a person or thing. - -Should another performer play the same piece played by a Paderewski the -personality of Paderewski would be absolutely wanting, and the same -difference between the two performances of the same composition would -be in the respective sound records as would exist at the actual -performance of the respective pieces. The same differences between -Caruso's rendition of a selection from Rigoletto and a concert-hall -singer's rendition of the same would exist in the sound record and the -reproduction therefrom as would exist in the actual singing of the -selection. This is true regarding the personality of every voice and -instrumentation recorded. - -A large portion of the selections, musical and recitational, on -talking-machine records are not copyrightable or copyrighted. These -records, however, with all their originality, personality of the -recitationist or singer, and peculiarity of arrangement, etc., should -be copyrighted, and the private competitor prevented from purloining an -artistic and characteristic production. - -So-called talking-machine records in this respect differ quite -materially from the mechanical organ and piano for the reason that a -so-called talking-machine record is an exact record of all the -modulations, and all the characteristic articulations of the voice, as -well as of all the characteristics of an instrumentation. In other -words, it is an exact picture of all the merits and demerits of the -original, and the original is reproduced with an exactness, so that -frequently, at a distance, in the present perfected state of the art, -the reproduction may very well be mistaken for the original. - -This record of the voice and instrumentation for sound reproducing is -an art which was not commercially available or perfected when the -earlier copyright laws were passed, and therefore was not included. - -The following were submitted by Mr. Pettit at the meeting of June 8, -1906, embodying his proposed amendments to the bill: - - - JUNE 7, 1906. - - _To the honorable Joint Committee of the Senate and House of - Representatives._ - - GENTLEMEN: Referring to the proposed bill, "To amend and - consolidate the acts respecting copyrights," now before the - committee, I would propose the following amendments: - - Amend section 3 (p. 3, line 8) by adding continuously at the end of - said section the following: - - "_And provided_, That no devices, contrivances, or appliances, or - dies, or matrices for making the same, such as referred to in - clause (_g_), section 1, made prior to the date this act shall go - into effect, shall be subject to any subsisting copyright." - - Amend section 5 (page 4, lines 2 to 3) by adding between lines 2 - and 3, before the word "Photographs," the following: "(_j_) - Talking-machine records." - - Amend section 18, clause (_b_), (page 14, line 14) by adding - between the word "composition" and the word "any" the words "any - talking-machine record." - - Amend section 23 by striking out from the clause marked "First" - (page 17, lines 18 to 20) the following: "or any device especially - adapted to reproduce to the ear any copyrighted work." - - Amend section 23 by inserting in the clause marked "Fourth" (page - 18, line 4), between the words "of" and "all," the following: "any - device, contrivance, or appliance mentioned in section 1, clause - (_g_) and." - - These amendments to section 23 are for the purpose of making the - penalty relative to unlawful use of devices, etc., enumerated in - section 1, Clause Z, one dollar instead of ten, which latter amount - is excessive. It puts the device for reproducing sound on basis of - books, etc., instead of in the class of paintings, statuary, or - sculpture. - - A brief memorandum of argument will be submitted later. - -Senator SMOOT. I would like to ask Mr. Sousa a question. I was very -much interested in your statement, Mr. Sousa, pertaining to talking -machines taking the place of the human voice, and I will ask you this -question: If you were protected in your productions and received a -royalty from the talking machines, would that lessen the use of the -talking machines any and strengthen the use of the voice and the brass -band and the home choir, and so on? - -Mr. SOUSA. I do not think so, but I think it will reduce two wrongs to -one. - -Senator SMOOT. Then, it is simply a question of your receiving the -royalty that you think you are entitled to? - -Mr. SOUSA. Yes, sir. - -Senator SMOOT. I think there are other causes besides the general use -of the talking machine that account for the fact that there is less -singing than there used to be. I think we do not live quite as close to -nature as we used to, and that that is what used to make us sing. - -Mr. SOUSA. That is very true. But the more leeway you give the talking -machine the greater encroachments they will make. If they are made to -pay a royalty on all compositions that they use, perhaps they will not -have so many bad ones in their records. [Laughter.] - -Senator SMOOT. That is what I intended to find out, as to whether it -was simply a personal affair. - -Mr. CAMPBELL. Is not the real reason that if it protects you and other -composers, there is an incentive to you to compose? - -Mr. SOUSA. Oh, yes; I can compose better if I get a thousand dollars -than I can for six hundred. [Laughter.] - -Mr. CAMPBELL. That is the real reason. - - -STATEMENT OF PAUL FULLER, ESQ., OF NEW YORK. - -Mr. FULLER. My original rôle, Mr. Chairman and gentlemen, was as one of -the members of the Bar Association of New York, and as chairman of the -committee to express to you gentlemen all the efforts that had been -made and the most extraordinary result that has been accomplished from -conflicting interests in getting up the framework of this bill, and to -say on behalf of a number of the conferees, we will call them--the -American Publishers' Copyright League, the America Publishers' -Association, the National Academy of Design, the Fine Arts Federation, -the Music Publishers' Association, the American Library Association, -the Print Publishers, the Engraving Copyright League, the United -Typothetæ, and the National Typographical Union--that they felt that a -great achievement had been reached in getting the framework of this -bill in its present condition. It is in such shape now that when -anything is the matter with it we know where to apply the remedy. In -the present chaotic condition of the copyright laws it would require an -X ray to find where the mistake was and how to remedy it. - -I did not intend to say more than a word, but the suggestions made by -the last speaker, Mr. Pettit, are of so vicious a character--not -intentionally so, but they show precisely how a good bill can be made -bad--that I am going to extend my remarks for the five or ten minutes -required to point out why they should not be regarded at all. - -For instance, take section 3. Our friend wants to alter that, and it is -absolutely unalterable if justice and common sense are to prevail. All -that section says is that the copyright shall extend to all the -copyrightable component parts of the work copyrighted, any and all -reproductions or copies thereof, in whatever form, style, or size, and -all matter reproduced therein in which copyright is already subsisting. - -If there is no copyright subsisting to keep a man from singing my song -through a phonograph, there is no harm done. If it is subsisting, he -must pay the penalty, and the courts will ultimately determine that. -The question is now before the courts. It seems to me strange that any -court should hesitate to say that a man who not only copies my -notation, but who actually reproduces the music, the sound, should not -be required to pay me for that privilege. If a man engraves my music -and sells it by the sheet, he is a counterfeiter, and I can get money -from him and punish him, but if he does more than that--if he completes -that counterfeit to the extent of the reproduction of the actual sound -that the composer had in his brain when he put it there--they say he -has not imitated. That question is before the courts. Do not touch it. -Do not touch it. This new law makes it certain for the future, but do -not endeavor to touch the past. Let the courts decide what the present -law is. - -I say that the present law will protect these gentlemen from that -piracy--because it is the ultimate form of piracy. It goes further than -the reproduction of the composer's music sheet. It reproduces the -sound. So that they have taken everything from the music man when they -reproduce it on the disk. Therefore I say leave this provision in the -bill: "And all matter reproduced therein in which copyright is already -subsisting." Do not touch it. - -In section 18 my friend (Mr. Pettit) wants to have the disks -copyrighted. Mr. Bonynge put his finger right on the point of that -proposition, and perhaps it is unwise for me to say anything further. -That is a patentable device, and it has been patented, and there is -nothing original on that disk--nothing original to the company that -makes that disk. The company has borrowed it or bought it or stolen it -from somebody else, and they want to copyright that. For heaven's sake, -let the copyright stop somewhere. - -Mr. Bonynge said: "Would you prevent the man who sang into your -phonograph, or talked into it, from singing or talking into any other?" -Certainly not. It is not an original production. It is not the work of -an author or composer or artist. There is nothing intellectual about -it, except that it is scientific, and the scientific part of it is -protected by his patent. The reason I am so emphatic about that is that -when you endeavor to put in the ideas of patents and the protection of -inventions into this law you dislocate it and disarrange it. - -Senator LATTIMER. The musician may memorize that music, and may -entertain an audience with it, but he can not sing it into a -phonograph; is that it? According to your position, as I understand it, -the singer may take the music of Mr. Sousa, commit it to memory, and -may stand before an audience and entertain the audience with Mr. -Sousa's music and reproduce it to the audience, but he can not -reproduce it in a phonograph? - -Mr. FULLER. If he has paid Mr. Sousa for the privilege of that public -performance. But he can not, at the same time, under the payment for -the privilege of a one-night stand, sing it into a phonograph and give -it to a million people all over the country. - -Mr. BONYNGE. And he can not give that public performance unless he has -paid Mr. Sousa his royalty? - -Mr. FULLER. No. - -Mr. MCGAVIN. Would not the copyrighting of this phonograph record give -the musician, say Mr. Sousa, double protection? He already has the -protection of the copyright on his sheet music, has he not? - -Mr. FULLER. Yes. - -Mr. MCGAVIN. And he would have the further protection of the copyright -of the music as it goes into the phonograph, would he not? - -Mr. FULLER. No; it is the talking-machine people who want a copyright -on that, and to hold it against the original composer. - -Mr. CHANEY. I did not understand Mr. Pettit that way. - -Mr. FULLER. Mr. Sousa is entitled to it, whether he prints his music on -a sheet of paper or whether he prints it on a disk; but the man that -prints it on the disk is not entitled to it. That is all. - -Mr. BONYNGE. He has not originated anything. - -Mr. FULLER. No. - -Mr. BONYNGE. Except that the disk is a patentable thing, and on that he -has a patent. - -Mr. FULLER. Yes. The bill is a compromise, and one which every lawyer -here and every lawyer who was at the conference thinks he can better; -but it is the best that could be had to protect and satisfy all the -interests. It has been stated that perhaps none of the interests are -entirely satisfied. If that is true, it is the best kind of a bill. -There are only two kinds: The bill that is perfect, the one that -satisfies everybody--and there is none such; and the one that satisfies -nobody, because nobody has had injustice done. - -Mr. SULZER. Mr. Chairman, I move that two copies of the proceedings of -these hearings be printed, one for the Senate and one for the House. - -Mr. CHANEY. I second that motion. - -(The motion was carried, and the committee thereupon adjourned until -to-morrow, Thursday, June 7, 1906, at 10 o'clock a.m.) - - -COMMITTEE ON PATENTS, - -HOUSE OF REPRESENTATIVES, - -_Thursday, June 7, 1906_. - -The committee met at 10 o'clock a.m., pursuant to adjournment, -conjointly with the Senate Committee on Patents. - -Present: Senators Kittredge (chairman), Mallory, and Latimer; -Representatives Currier, Hinshaw, Bonynge, Campbell, Chaney, McGavin, -Sulzer, and Webb. - -Mr. PUTNAM. Mr. Chairman, Colonel Olin was next upon the list of those -who were to speak for particular groups in the conference. Colonel Olin -participated in the conference as counsel for the American Publishers' -Copyright League, and I think that he tends in his remarks to express -something of the sentiments of some others of the publishing group. - - -STATEMENT OF STEPHEN H. OLIN, ESQ. - -Mr. OLIN. Mr. Chairman and gentlemen, a number of different bodies, -mainly publishing and reproducing bodies, which participated in this -conference, thought it proper, in view of the dignity of this occasion, -the unprecedented meeting of the committees of the two Houses, that -they should collectively say in very few words what they all thought of -this bill, that so they could best serve the committee, so they could -best provide that nothing should belittle the force of the language of -the President or the clearness of the presentation as to the bill made -by the Librarian. - -These bodies who have authorized me to speak in their behalf in this -matter are the Academy of Design, the Fine Arts Federation, the -American Publishers' Association, the American Publishers' Copyright -League, which two bodies include practically all the publishers of the -United States; the United Typothetæ, which include all the great -employing printers of the United States; the Music Publishers' -Association, some forty-two music publishers who, by habit, not only -represent themselves but those musicians who rely upon them for -protection; the Photographers' League of America, the Print Publishers' -Association, which two bodies represent largely the illustrating -interests of the country; the International Typographical Union, which, -as the committee knows, represents the typesetters and printers; and -finally the American Library Association, wish me on their behalf to -say that this bill in its present form has their substantial approval. -It is understood that suggestions of modifications as to detail may be -made by these organizations individually through the Librarian of -Congress; and I submit their signed paper to that effect to the -committee. - -Mr. Chairman, it seems to me that this simple statement on behalf of -these bodies carries a very strong prima facie argument in favor of -this bill. The greater part of the effort of the authors of this bill -has been to provide in that field of copyright which Congress has -already bounded and established, and which the existing law creates, a -reasonable and orderly regulation; to provide against these conflicts -and uncertainties and difficulties which the repeated amendment of the -law has brought about. - -I think everybody would, further, be glad if there could be such a bill -as most men could read with some intelligence; that would not need not -merely a lawyer, but a copyright lawyer, to interpret. I think most men -would be glad, furthermore, in view of the importance of international -copyright, if it were such a bill as an intelligent foreigner could -understand and an intelligent foreign lawyer could advise about, and -such a bill as that the people who are used to it here would thereby be -taught something of the general copyright law and could better -understand foreign rules. But at any rate, these organizations whose -names I have read to you represent, with some few exceptions, roughly, -the whole body of men interested in the actual working of the law. Most -of them, I think, except those who are purely authors and creators, -like the arts associations, have at some time or other been on each -side of a copyright controversy. In their business some of them are -owners of copyrights and desire to enforce their copyright as far as -possible, and most of them are also desirous at times of using literary -or artistic matter which is protected by copyright, and they desire -that the law shall be precise, so that they can understand their rights -and not unwittingly be guilty of offense. - -So, for all these reasons, it seems to me that when they come to you -and say, substantially, "This law is satisfactory to us," you may be -sure that prima facie there is a law here that is an improvement on -what at present exists, and which, on the whole, will give a reasonable -and sane regulation of this most important matter. And of course if any -of them come to you with special ideas as to improvement, you will hear -and pass upon them for what they are worth. - -I am going to leave that without any argument, because it seems to me -the fact itself is persuasive and that it must impress this committee -with the substantial value of this bill that has been presented. - -There is one thing which the committee will naturally scrutinize with -great attention, and that is every provision of this bill which in any -respect seems to extend the field of copyright as Congress has -previously bounded it; that is to say, which gives copyright upon some -new article, or extends the term of copyright, or gives copyright to -people who did not formerly possess it, or which in any degree limits -the right of the public as against the copyright owner. The bill, I -think, makes no very large incursion into that region, but it is that -region which, I am sure, this committee will principally wish to -examine. With your permission, I shall briefly speak of those things -which occur to me as to such extensions. - -First of all, the bill does extend the privilege of copyright to -preventing the reproduction of musical sound or spoken words by -machinery. That was spoken of before the committee yesterday. All that -I can say about it is that this body whom I represent, although some of -them have special interests in it (and they wish to be heard on it -hereafter), in general look upon the matter as the circuit court of the -United States in the second circuit looked upon it in their last -decision on the subject, as being a matter germane to the copyright -law, relating to the same kind of rights that Congress has hitherto -protected, and that they see no reason why such rights should not -hereafter be properly protected; and they respectfully refer the -committee, so far as their suggestion goes, to the special information -and advice of those on both sides of the question who have the greatest -interest in it and the greatest capacity to inform the committee in -regard to it. - -The CHAIRMAN. Can you give the citation of the decision that you have -mentioned? - -Mr. OLIN. I can hand it to you. A printed copy of the decision was -handed to me yesterday. It has not yet been reported. - -Mr. CHANEY. That was the decision that was distributed yesterday? - -Mr. OLIN. Yes; that is the one. - -The CHAIRMAN. Unless there is objection on the part of the committee, -we will have this decision put in the record. - -(The decision referred to is as follows:) - - UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT. - - White-Smith Music Publishing Company, appellant, against Apollo - Company, respondent. - - Judges Lacombe, Coxe, and Townsend. - - These causes come here upon appeal from a decree of the United - States circuit court for the southern district of New York - dismissing bill alleging infringement of copyright. The facts are - stated in the opinion of the court below. (139 Fed. 427.) - - Per curiam: The questions raised in these cases are of vast - importance and involve far-reaching results. They have been - exhaustively discussed in the clear and forcible briefs and - arguments of counsel. We are of the opinion that the rights sought - to be protected by these suits belong to the same class as those - covered by the specific provisions of the copyright statutes, and - that the reasons which led to the passage of said statutes apply - with great force to the protection of rights of copyright against - such an appropriation of the fruits of an author's conception as - results from the acts of defendant. - - 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. - - We are therefore of the opinion that a perforated paper roll, such - as is manufactured by defendant, is not a copy of complainant's - staff notation, for the following reasons: - - It is not a copy in fact; it is not designed to be read or actually - used in reading music as the original staff notation is; and the - claim that it may be read, which is practically disproved by the - great preponderance of evidence, even if true, would establish - merely a theory or possibility of use, as distinguished from an - actual use. The argument that because the roll is a notation or - record of the music, it is, therefore, a copy, would apply to the - disk of the phonograph or the barrel of the organ, which, it must - be admitted, are not copies of the sheet music. The perforation in - the rolls are not a varied form of symbols substituted for the - symbols used by the author. They are mere adjuncts of a valve - mechanism in a machine. In fact, the machine, or musical playing - device, is the thing which appropriates the author's property and - publishes it by producing the musical sounds, thus conveying the - author's composition to the public. - - The decree is affirmed, with costs. - -Mr. OLIN. The second extension or modification of the present rights of -the copyright proprietor as against the public are those instances -mentioned yesterday by the chairman of the House committee in regard to -the exceptions to the prohibition of importation. As the law stands -to-day the importation into this country of a book which is copyrighted -here is prohibited, and there are certain exceptions, in the first -case, of certain libraries and colleges who may import not exceeding -two copies in one invoice, and individuals who may import not exceeding -two copies in one invoice. This bill makes a modification of the -present rule. - -I would like to call the attention of the committee to the reason why -the present law is as it is, and the reason why this suggestion of -amendment is made. Of course, prior to 1891 there was nothing like this -in the law. The law was perfectly simple, and had been perfectly simple -for a hundred years. There could be no importation of the copyrighted -article from abroad without the consent of the copyright proprietor. -With his consent it could be freely imported. So far as I know there -had never been the slightest dissatisfaction on the part of copyright -proprietors or of the public with the working of that rule. As a matter -of fact, it was to the interest of the copyright proprietor to bring -in, I will say, the English edition of the book which he was publishing -here, and to sell it--and so far as the public wanted it they always -got it--at his shop or at other shops, through the regular channels of -trade, so that the public and he alike were perfectly satisfied. - -Mr. CURRIER. Were there any importations before 1881? - -Mr. OLIN. Before 1891? I think there were. - -Mr. CURRIER. With the consent of the copyright proprietor? - -Mr. OLIN. I think, as a matter of fact, if you went into a bookstore -you always found and could buy, at a somewhat higher price---- - -Mr. CURRIER. That is not the question. Were there any importations of -such books? - -Mr. OLIN. There were, by the copyright proprietors, who put them on -sale and sold them through the trade. - -Mr. CURRIER. Importations solely by the proprietor of the -copyright--not by individuals? - -Mr. OLIN. Yes, sir; not by individuals. Congress undertook in 1891 to -do two things: First, to admit to the privileges of copyright the -foreigners resident in certain countries; and, second, to require that -the manufacture of copyrighted books should be by American typesetters -and plate makers here in this country. And they undertook to do these -things with the minimum changes in the language of the statute. They -inserted a few words in one section, and then a few words in another, -and both of the desired results were brought about, just as they exist -to-day. Then, in the last part of the discussion in Congress, as I -remember it--and I am open to correction as to the historical -account--it became apparent that the typesetter was not duly protected -if only those changes were made, for the reason that the copyright -proprietor, having the free right to import books from abroad, might -perhaps comply with the typesetting clause colorably only, in an -imperfect way, and might satisfy the public demand for his books by -importation of those set up and printed abroad. Therefore, at the -typesetters' request, there was imposed a prohibition of importation -which affected the whole world, including the copyright proprietor. -Nobody could import books. - -Mr. CURRIER. That was a perfectly satisfactory provision. - -Mr. OLIN. That was a perfectly satisfactory provision, both to the -copyright owner and to the typesetter; but then the general public were -heard, and they said "no;" an English edition may be better than an -American edition, for one reason or another, and you must not deprive -us of the privilege of getting the best books. Libraries were heard, -and individuals were heard. And Congress then hit upon this expedient, -which was very simple and on the whole has been very effectual. -Congress said: - - But this prohibition shall not apply in the cases mentioned in - certain specified sections referred to of the tariff act. - -The sections of the tariff act referred to enumerated a certain number -of classes which Congress had thought were worthy of benefit from the -Government to the extent of allowing them to import books in limited -numbers free from duty. So there was ready-made for the hands of -Congress a certain list of people who import books who might be -allowed to benefit at the expense of the copyright proprietor, just as -they had been theretofore benefited at the expense of the customs. -That is the law as it stands to-day. - -Then Congress added this further provision, that any individual also -shall be allowed to import not exceeding two copies in one invoice on -payment of the duty thereon, for use, and not for sale. - -Like every other provision of a law after it has been duly tested by -use, it is fair to bring it before the legislature again and to call -attention to its results, and that is especially true where the -provision of law was necessarily adopted with haste and was obviously -a mere expedient for arriving at a wished-for result. And when this -conference convened the publishers said: "To some extent this section -has worked badly in certain ways," which I shall now point out. The -librarians in libraries and the colleges have generally availed -themselves of this privilege, being coupled with the privilege to -import without the payment of duty, and have imported copyrighted -books in those ways in large numbers. How far individuals have availed -themselves of their privilege it is impossible, or at all events would -be difficult, to tell; probably not to any great extent. The number of -men who care so much for an English edition of a book that they are -willing to write for it to a London bookseller and import it -themselves is not very large. - -So far as it goes, the privilege of importation is an inroad on the -rights given to the copyright proprietor. It is an inconsiderable -inroad so far as most popular books--novels and the like--which have -circulation are concerned. The few hundred books that come to -individuals here amount to not a very substantial burden upon the -proprietor of such copyrights. But there are certain classes of books, -expensive to produce, and with a very limited circulation--books of a -scientific character, books illustrated with plates--and they -circulate among the precise classes; that is, the libraries and the -colleges and these individuals who are particular about their -libraries, the precise individuals who import books under these -exceptions; and there were instances brought before the conference -where publishers here had declined to undertake a book which would -have been valuable to the public, which would have been valuable to -the typesetter to set up, and the American publisher to bring out, and -to the American bookseller to sell, for the reason that the very -limited public which these books addressed would all, in the natural -course of events, have their demands filled through these exceptions -to the prohibition of importations. - -That did not hurt the libraries or the individuals who habitually get -English editions. It did hurt, we maintain, the American public, the -reading public, and a great many individuals among the American -producing classes. So that there was a modification requested of the -present rules, and the modification in regard to the libraries is -this: There is to be not exceeding one copy to be introduced on an -invoice, the privilege is not to relate to books which have their -origin here in America. With your permission, I will briefly explain -those two points. In the first place, ordinarily a library or a -college needs only one book at a time. If it needs another copy of the -same book it is not too much to ask that it make another importation -to bring it in. Under the present rule, while delicate and careful men -would not take advantage of it, it is constantly a temptation to a -librarian who can import free of duty and free of the copyright -proprietor's claims, two copies of a book from England, to import one -for the legitimate use of the library and one for some other use. The -effect of that influence can not be particularly measured. - -The other point is one which can be clearly understood. It is now the -right of colleges and libraries, an important right, that in case of -an English book they should be able to get the English edition, which -in some instances is more complete or for other reasons better than -the American edition. But it can almost never be an important right to -obtain the English edition of an American book since the American -edition is almost always more complete, or equally complete. So that -the right to import the foreign edition of an American book, a book of -American origin, would ordinarily be confined to the Tauchnitz and the -like editions with which the gentlemen of the committee are all -familiar, where a continental publisher publishes English and American -books for the benefit of travelers, and they are not allowed to be -reimported into England or America. It seems to the publishers fair -that the same rule which applies to every Englishman and every -American as to such Tauchnitz editions should be applied to libraries; -that is, that they should get the American edition, and not the other, -of which the only advantage is cheapness, arising from its special -purpose. - -Whether or not these are reasonable changes has been very largely -passed upon, it seems to me, in the controversy that has gone on with -the American Library Association, which is a very powerful and very -diligent and active association, and which has been very much -interested in these matters; and in laying before you their approval -of the bill in its present shape, it seems to me that as to this -clause it must establish in the minds of the committee a clear prima -facie case, at least, that this compromise that is agreed upon is a -reasonable compromise. There are gentlemen here who represent certain -libraries who, I understand, think that it is not a reasonable -compromise. - -Mr. CURRIER. That minority is a very strong one, is it not? - -Mr. OLIN. I think it is a strong one; and they undoubtedly will be -heard. They object that this compromise goes too far; and all that we -can reasonably ask the committee at this moment is that if it -occurs--if it seems to the committee that what this minority of -librarians have to say overcomes the presumption of fairness that -arises from a compromise satisfactory to the majority--that then the -publishers may have their opportunity of showing to the committee that -it is a fair compromise and a reasonable disposition of the matter. - -Now, we come to the next clause of these exceptions. - -Mr. CURRIER. Just an instant. Would the people you represent object -seriously to an amendment to subdivision 3, on page 16, which would -strike out all after the words "United States" where they occur? - -Mr. OLIN. On page 16? - -Mr. CURRIER. In the tenth line of subdivision 3. - -Mr. OLIN. Are you reading from the printed form of the bill? - -Mr. CURRIER. The library print. - -Mr. CHANEY. Section 21? - -Mr. CURRIER. I have not compared them. I have been using the library -print all the time. - -Mr. CHANEY. Just take the other bill. - -Mr. PUTNAM. Section 30 of the bill. - -Mr. CHANEY. Page 24 of the Senate bill. - -Mr. CURRIER. Now, strike out all after the words "United States," in -the twenty-fifth line, down to the fourth section. - -Mr. OLIN. I am now speaking merely for the publishers, whom I do -represent generally, and not for these other associations. - -Mr. CURRIER. I was simply asking if the people whom you represent -would make serious objection to that amendment. - -Mr. OLIN. Speaking only for the publishers, I think they would. I -think they would wish to be heard fully on that before any such change -was made. - -Mr. CURRIER. Right in that connection, let me call your attention to -the first subdivision, beginning on line 13, which deals with the -importation for an individual. - -Mr. OLIN. On what page? - -Mr. CURRIER. Page 24, line 13. - -Mr. OLIN. Yes. - -Mr. CURRIER. We would understand, would we not, that that was a -practical prohibition of importations by individuals? - -Mr. OLIN. No, sir. - -Mr. CURRIER. Do you imagine that a book would ever be imported by an -individual under that provision? - -Mr. OLIN. I should think they would be habitually, and to a much -larger extent than at present; and I will give you my reasons for it. - -Mr. CURRIER. Would it not be a considerable inconvenience to secure -the permission of the proprietor of the copyright? - -Mr. OLIN. I should think none at all. - -Mr. CURRIER. We would be glad to hear you on that, because it occurred -to me that that was an absolute prohibition, in effect. - -Mr. OLIN. I am glad to have my attention called to this, because this -is a matter where we have not been able to make any compromise. There -are no representatives of the public who could discuss such a -compromise, and we come before the committee to submit it to their -judgment as to its fairness in the first instance. - -What I want to call the attention of the committee to is that the -effect of this is simply to put the business back, as to importing one -copy, to the condition that existed before 1891 as to importing all -copies. We would be very glad, the copyright proprietors would be very -glad, and the public would be very glad if it could altogether go back -to that condition; that is, if you say books shall not be imported -without the consent of the copyright proprietor. The copyright -proprietor would then, as he did before, import books and put them -into the trade and sell them freely. - -Mr. CURRIER. Yes; the proprietor would import, but I think, in answer -to an inquiry a few moments ago, you said that under the former law -individuals did not import. - -Mr. OLIN. No; but they did not need to. - -Mr. CURRIER. Under that provision beginning on line 18, while the -proprietor might import, do you think an individual would ever -import--go to the trouble of getting the consent of the proprietor? - -Mr. OLIN. I think the practical working of that would be just this---- - -Mr. CURRIER. I am only asking for information. - -Mr. OLIN. The practical working would be this: Scribner & Co. would -publish here a book which was also published in England. An individual -would wish to get a copy of it in the English edition, and he would -either go to the Scribners' store, or write to him, or he would go to -his bookseller, who would send word to the Scribners, asking that a -copy should be imported for that individual through Mr. Scribner, and -Scribner would import it for him. That is to say, the individual would -have far less difficulty, wherever he was situated throughout the -country, in getting the English edition of the book than he has at -present, when he himself writes to an English bookseller in London and -imports it himself. - -Mr. CURRIER. I am not expressing any opinion at all as to the -correctness of that proposition, whether the individual should not be -prohibited from importing. - -Mr. OLIN. My point is that the facility with which the individual -would obtain an English edition of an American copyrighted book would -be greatly increased by the passage of this bill, because it would put -it in the regular course of business, just as it used to be before -1891, for the owner of the American copyright to see to those -importations. The law would not allow the proprietor himself to make -the importations, but he would be exceedingly glad to import that book -for A, B, C, D, and E, all over the country, and to make it just as -easy as it was possible to do for them to get that English edition. - -Mr. CURRIER. I am not at all sure that that is not so, but I think you -agree with me that the individual himself, under that provision, would -never directly import a book. - -Mr. OLIN. I think he would not. - -Mr. CURRIER. The proprietor would always do it for him. - -Mr. OLIN. It would be so much easier for him to make the proprietor -his agent, and the proprietor would be so glad to act as his agent, -and it would be so much to the interest of both parties that that -should be so that that would be naturally the course that it would -take. - -Mr. HINSHAW. Under existing law is the proprietor of the American -copyright seriously injured by these importations? - -Mr. OLIN. In ordinary cases, as I said, he is not seriously -injured--that is, in the case of popular books he is not substantially -injured at all. He does not know how much he is injured, because there -is no means of estimating the precise amount. It is an injury, but how -great he does not know. - -Mr. HINSHAW. It is a sufficient injury, so that you think it ought to -be restricted? - -Mr. OLIN. It is a sufficient injury, especially in the cases that I -have spoken of, where valuable books that cost very much to produce -and that have a limited field of sale are in question, and there it -does repeatedly prevent such books from being published in America. - -Those are the only two limitations which affect the general public -until we come to this provision of the bill which increases the term -of the copyrights in different cases. As to them, of course the main -argument is made by the producer, the author, or artist. He is the one -who wants that addition to the term, and it is a matter of no great -importance to these general organizations of reproducers whom I -represent, one or two of them permanently and some only for the -moment. But we may fairly make these observations: First, I repeat -what was very clearly put by the Librarian yesterday, that the -copyright is simply in the form of an idea, as the patent right is in -the idea itself, and that consequently there is never like oppression -to the public from the monopoly. - -If I have a patent on a needle with the eye in the point, nobody in -the country can use that until my patent is out, and that is a great -oppression. If I write a book about a needle with the eye in the -point, or about anything else under the sun, my idea, for what it is -worth, is at everybody's disposal when my book is published. He can -not copy my form, but whatever good the idea does him in his own -thinking or his own work he has. That is the first consideration which -has always actuated Congress and all governments, so far as I know, in -making the copyright term much more extensive than that of the patent. - -Then the next is a practical consideration which I think must be -within the knowledge of every member of the committee, and that is -that for practical purposes in most cases the public gives up nothing -by extending the term, for the reason that at the end of forty-two -years a very great majority of copyrights--I hesitate to say how large -the majority would be--has become worthless. As a matter of fact, it -is familiar to every member of the committee that people do not -reproduce books that have fallen into the public domain by the expiry -of the time of the copyright, except in very special cases of -particularly popular works. So that in most instances the public would -not be giving up anything really in adding to the end of this term a -certain number of years. - -Then, next, there is the consideration that in practice it is true -that the public does now get the fullest opportunity to buy cheaply -(which, I think, must be the only interest of the public as -distinguished from the interest of the different producing classes) -because books start at a certain price and at the end of a year they -go down below that price. At the end of two years there are new -editions at perhaps half the price, and in a very few years the -publisher is making every effort to attract the public by every -reduction that is possible. - -There is one other consideration that I think may possibly be alluded -to, and that is that since this term was fixed, partly by the -improvements of science and partly by changes in legislation, the -actual value of a given term of copyright has diminished. Part of the -value of a term of copyright was always that at the expiration of the -term the owner of the copyright had the plates and had the books and -could compete to great advantage with other people. His right, his -privilege in that respect, has been largely taken away by these -photographic processes which have come into use. It is not necessary -for the man who wishes to publish a book to go to work and have type -set for it. He simply takes the existing edition and he photographs -it, and he does that with great cheapness. Perhaps there would be an -answer to this suggestion that the public should have the advantage -that would come from all such cheapening processes; but it seems to me -that it could reply that Congress has prohibited the copyright owner -from taking advantage of these processes, by saying that he at first -must make his book, as long as the copyright exists, in the most -expensive way, from plates made by American mechanics and who receive -American wages; and consequently that he is handicapped from the -beginning. - -I do not wish to press this argument unduly. It is something, it seems -to me, that may be suggested to the committee, whether or not this -committee is now to act with the same liberality which Congress showed -when the existing term was fixed, if it would not necessarily in some -degree extend the term by reason of the facts to which I have -referred. - -There is only one other, so far as I know, important extension of the -right of copyright contained in this bill, and on its face it appears -to be a matter of inadvertence. It is contained in section 8, where -there are provisions A and B, on page 5. The present law of copyright -allows a foreigner to take out a copyright if he is a resident in the -United States, or if he is a citizen of one of those countries which -allow similar privileges to citizens of the United States. Those are -the two categories. - -At first glance at A and B, in section 8, it would appear that those -were intended to represent the same classes and to give precisely the -same rights; but, apparently by inadvertence, in the second line of -subdivision A the word which should, I think, be "and" has become -"or," so that as it at present reads a foreigner, no matter where he -lives, no matter whether the country of which he is a citizen gives -similar rights to citizens of the United States or not, may, if he -shall first or cotemporaneously publish his work within the limits of -the United States, have a copyright. I am not here to say that that -would not be a wise extension of the law. I am not here to say on -behalf of any of the parties whom I represent that they would or would -not oppose it. I do not know anything about their views. This -extension of copyright is not an extension which has been discussed in -the conference. I have no right to give any approval of it, even to -the limited extent that I have a right to give an approval of this -bill on behalf of any of these bodies whom I represent. - -Mr. BETHUNE. Would not the interest of the publishers be safeguarded -if the law provided that an individual may import one copy of the -foreign edition, but only after he has asked the proprietor of the -American copyright to buy one for him and his request has been -refused? - -Mr. OLIN. If the committee chooses to put that in, I can see no harm -in it at all. It seems to me that it will result in that, necessarily, -if the American publisher is not actuated by his own interest, as he -used to be prior to 1891, and as I think he would be again, and if he -is not glad to import that copy from abroad. If he refused I think if -anybody who is aggrieved should come to Congress, Congress would -change the law instantly and compel the copyright proprietor to give -consent; and if Congress thinks it right to put in that provision in -the beginning nobody could complain. So that my answer is that I do -not think anybody would object. - -Mr. JOHNSON. I would like to ask if an American citizen traveling in -Europe should at the time he was there purchase one of these editions, -would it not be a hardship on him to compel him to forego the bringing -of that copy into the United States without the consent of the -American proprietor? - -Mr. OLIN. Is that question addressed to me? - -Mr. JOHNSON. Yes. - -Mr. OLIN. If a hardship, it is inflicted by the English custom-house -at present in regard to these very Tauchnitz editions. It is one of -the few things they are rigorous about, and I think members of this -committee may have had experience with the English customs and their -rule about that. But in this bill it is provided that where there are -parts of libraries or books in baggage brought back by traveling -people they shall be admitted. I think it is a question of de minimis. -I think in the case of a man bringing back such a book it would be no -hardship worthy of the consideration of Congress. - -Mr. JOHNSON. All personal baggage is included also? - -Mr. OLIN. Yes. - -Mr. PUTNAM. For the information of Mr. Johnson, Mr. Chairman, I think -that Mr. Olin was referring, in answer to that question, substantially -to subsection 4, on page 25, which was supposed to take care of the -person bringing in copies in his personal baggage. - -Mr. Ogilvie is here from Chicago, but before his statement is made I -wish to say that, as I understood, Colonel Olin spoke in two -capacities; in the first place, giving some general expression in -behalf of a certain group of organizations, and their substantial -acquiescence in the bill; in the second place, as counsel specially -for the book publishers, with reference to certain particular -provisions, particularly this importation clause. - -Mr. OLIN. Yes; and, finally, I wished merely to modify the general -approval of the bill which I had given on behalf of all these -organizations, by expressing my understanding that they considered the -bill, as I supposed was intended, with "and" instead of "or" in the -second line of subdivision A, in section 8, on page 5. - -Mr. PUTNAM. In that latter capacity, the provisions of the bill as to -which Colonel Olin spoke were those as to importations particularly -affecting the interests of the libraries; and, considering what will -be most helpful to the committee, it would seem to me appropriate, and -I submit it as a suggestion, that as soon as possible after the -statement that you have had from Colonel Olin in explanation of those -provisions you have the statement from representatives here of the -group of libraries--librarians--that would dissent from the provision. -Mr. Cutter is here, and, if I understand him rightly, his statement -will be brief. Mr. Ogilvie, however, had been promised an opportunity -to be heard early this morning. As I understood him, the oral -statement that he proposes to make is an objection to certain -provisions of the bill, and that he would be content with an -opportunity for a ten-minute statement, to be supplemented, if he -chose, in writing, to go into the record. - - -STATEMENT OF GEORGE W. OGILVIE, ESQ., OF CHICAGO. - -Mr. OGILVIE. Mr. Chairman and gentlemen of the committee, as I -understand that this bill is to take the place very largely of the -copyright act of 1891, it may be proper to refer to some of the -arguments that were advanced at that time as to why that particular -bill should pass. In furtherance of that idea, I read from The -Question of Copyright, by George Haven Putnam, on page 103, in which -it is said: - - It is admitted that the proposed act or any other of a similar - nature will raise the price of the very cheap reprints of English - stories yet to be written a few cents apiece. A pamphlet of that - sort now costing 20 cents will then cost 25 cents. Of the - additional price, 2 cents will go to the author and 3 cents will go - into better paper, better print, and better binding. For the 5 - cents of increased cost an American story will be furnished oftener - than an English story, an American author will get pay for his - labor, and the reader will get a book that is 100 per cent better - than the old one in paper, print, and binding. - -I submit that if an additional cost of 3 cents is to go into paper, -print, and binding, and will produce a book that is 100 per cent better -than the 20-cent book, and 2 cents of the increased price is to go to -the author, that the publisher would receive no benefit whatever; and -it is well to bear in mind that the disinterested patriots who -requested the passage of the international copyright law did so for the -purpose of benefiting not themselves, but the author of a book 2 cents -per copy, and the producer of paper, printing, and binding 3 cents per -copy, out of which they got nothing. It is the same gentlemen, as I -understood it, who were sponsors for that bill who are the sponsors for -this. Twenty cents per copy for a book costing 3 cents to produce shows -a profit somewhere of 666 per cent; and it is probable that they were -satisfied with that percentage. As a basis for further remark along -that line, I desire to draw your attention to section 13 on page 6 of -the bill, as I have it here. - -Mr. PUTNAM. That is the library copy. - -Mr. OGILVIE. It is section 13 of the third paragraph [reading]: - - Any person who, for the purpose of obtaining a copyright, shall - knowingly be guilty of making a false affidavit as to his having - complied with the above conditions shall be deemed guilty of a - misdemeanor, and upon conviction thereof shall be punished by a - fine of not more than one thousand dollars, and all of his rights - and privileges under said copyright shall thereafter be forfeited. - -The CHAIRMAN. For whom do you appear, Mr. Ogilvie? - -Mr. OGILVIE. For myself as a publisher and for several other Chicago -publishers, none of whom were represented at or invited to the -conferences of which this hill is the result. - -Mr. CHANEY. Had you no notice that there was going to be a conference? - -Mr. OGILVIE. The first information that I had that there was a -conference was from a gentleman representing Lyon & Healy, of Chicago, -in the Manhattan Hotel in New York, last November. That was the first -intimation I had that there had been a conference. I knew that there -were likely to be some, but I had no notice of their dates. - -Mr. CHANEY. We wanted you as well as everybody else. - -Mr. OGILVIE. I knew nothing about it. I may say, also, that the first -draft of this bill that I have seen was received in my office in -Chicago Saturday morning last. - -Again, on page 18 of the bill, section 25: - - That any person who willfully and for profit shall infringe any - copyright secured by this act, or who shall knowingly or willfully - aid or abet such infringement or in any wise knowingly and - willfully take part in any such infringement shall be deemed guilty - of a misdemeanor, and upon conviction thereof shall be punished by - imprisonment for not exceeding one year or by a fine, etc. - -It seems to me a little out of order for the gentlemen who are -sponsors for this bill to make it possible for them to get a copyright -on a book, and if they are not caught in making a false affidavit in -securing it, that a man shall go to the penitentiary for a year for -pirating that particular book. It will be rather difficult for one to -prove, after a number of years, that a publisher who has made an -affidavit to secure a copyright to which he really was not entitled -had committed perjury in connection with the securing of that -copyright; but the question as to one's piracy of the book is open and -"he that runs may read." It seems to me that there is a punishment -there that they have applied to the wrong crime. If the man who makes -a false affidavit were to go to the penitentiary for the year, I think -it would protect the interests that desire protection in this country, -in the form of labor, in the matter of setting up and manufacturing -books wholly within the limits of the United States. - -The CHAIRMAN. Do I understand you to contend that the Librarian should -be charged with any special duty in that regard, for the registry of -the copyright? - -Mr. OGILVIE. No, sir; the Librarian can not determine whether a man is -making a false or correct affidavit, but if one makes a false -affidavit he is the man who should go to the penitentiary and not the -individual who pirates his book. - -Mr. BONYNGE. Does not section 13 provide that the man who makes the -affidavit shall be guilty of a misdemeanor? - -Mr. OGILVIE. Yes; and the penalty therein provided is, "he shall be -fined not exceeding one thousand dollars." That is all. - -Mr. CURRIER. What is your suggestion? - -Mr. OGILVIE. That you change the punishment. - -Mr. CURRIER. And make it a penitentiary offense? - -Mr. OGILVIE. Let them both go to the penitentiary, if either one goes. - -Mr. CURRIER. In both cases? - -Mr. OGILVIE. In both cases, if necessary. Do not eliminate the -publisher. I am a publisher, but if I have made a false affidavit, -there is no reason why the man who pirates my book should go to the -penitentiary and I should only have to pay a fine, if I am caught. I -see no reason why a man should go to the penitentiary in either case, -really. He may unwittingly infringe the copyright of a book. - -Mr. CURRIER. This says "willfully." - -Mr. OGILVIE. That is subject to the construction of the courts. We all -know what that means. - -Mr. CURRIER. No; it puts the burden of proof on the Government to show -it beyond a reasonable doubt. - -Mr. OGILVIE. The proof of the perjury should also be beyond a -reasonable doubt and the one guilty of it should be equally punished. - -Mr. CHANEY. If he did it unwittingly it would not be willful, you -know. - -Mr. OGILVIE. It is impossible for a publisher to make an "unwitting" -affidavit of that sort. The publisher knows where the article that he -is publishing is manufactured. I have been a publisher for a great -many years, and I know where the articles that I am turning out are -manufactured. It is possible for him to make an affidavit that is -literally and absolutely true in regard to the place of manufacture of -every article that he produces. - -Senator MALLORY. Where he willfully makes a false affidavit it is -equivalent to perjury, and the penalty for that is generally -imprisonment in the penitentiary. - -Mr. OGILVIE. Then why change the penalty in this law? It certainly -limits his liability under this act. - -Mr. CURRIER. There is not any liability at all. No affidavit is -required. There is no penalty for a false statement at all under the -law now. - -Mr. OGILVIE. Not as it is at present, but as this new law proposes it -there is a liability. - -Mr. CURRIER. This was a bill that passed the House last winter and was -not reached in the Senate. - -Mr. OGILVIE. Well, the facts are here. - -The CHAIRMAN. It was reported favorably by the Senate committee. - -Mr. CURRIER. Yes; and not reached. - -Mr. OGILVIE. Section 19, the last portion of that section, reads: - - _And provided further_, That should such subsisting copyright - have been assigned, or a license granted therein for publication - upon payment of royalty, the copyright shall be renewed and - extended only in case the assignee or licensee shall join in the - application for such renewal and extension. - -Mr. PUTNAM. That provides for the extension of the existing copyright -for an additional term. - -Mr. CHANEY. What is your suggestion on that? - -Mr. OGILVIE. That the gentlemen who framed this bill, and who wished -to let themselves out of the penitentiary for committing perjury, -would be likely to make a very liberal arrangement with the author, or -his widow or children, if it was within his power to refuse to consent -to a renewal of a copyright. He may have been paying a royalty of 20 -per cent, and when the time came for securing a renewal of the -copyright he would be likely to say, "I will give you 1 per cent, and -if you do not agree to that I will not join the request for an -extension of the copyright." I think that is wholly beyond the -province of this act. - -Mr. CHANEY. Whose consent should be required? - -Mr. OGILVIE. Eliminate the publisher. He has no concern with it. The -Constitution does not grant him any rights under the copyright law. He -is not the "inventor" or the "author." Eliminate the publisher wholly, -unless you desire, in case there may be an investment there that the -publisher desires to protect, to let the author take care of that by -contract, so that at the expiration of the copyright the publisher may -have the right to continue the publication on the payment of the same -royalty. - -Mr. CURRIER. Can you suggest an amendment to carry out your idea in -the matter? - -Mr. OGILVIE. Yes, sir. - - Unless the publisher shall agree to pay at least the same royalty - for an extension of the copyright as has been paid during the - previous years, the author shall have the sole right to apply for - and secure an extension of copyright. - -Mr. CHANEY. You are really talking against your own interests as a -publisher just now? - -Mr. OGILVIE. I am, absolutely, talking against my interests as a -publisher. - -Mr. SULZER. Do you contend that this provision would apply where the -publisher had no interest in the publication beyond the ordinary time -of copyright? - -Mr. OGILVIE. That is all; it shall apply only to that case. - -Mr. SULZER. I construe this provision in here to be just what you say. - -Mr. OGILVIE. No; I read it differently from the way you do, and place -a different construction upon it. We will again refer to it and see if -I am wrong. If I am wrong, I shall be glad to be put right, and if you -are wrong, I know that you will be glad to be put right. - -Mr. SULZER. It says here unless the assignee or licensee shall join in -the application. If a man is an assignee or licensee he has an -interest in the copyright. - -Mr. OGILVIE. He takes it for the time limit only. - -Mr. SULZER. If he is not he has no interest, and would not have to -join with the widow or children in this application for an extension -of the copyright. - -Mr. OGILVIE. But if he is the assignee or licensee then he is -interested in it only during the life of the copyright. - -Mr. SULZER. I do not understand it that way. - -Mr. HINSHAW. How could the licensee have any interest in the copyright -beyond the life of it? - -Mr. SULZER. He would have an interest in it so far as it could be -extended. - -Mr. OGILVIE. Why should he? - -Mr. BONYNGE. He has not. There is no provision now for the extension, -and he would not have, except as he might get it under this bill. - -Mr. CAMPBELL. He would provide for that in his contract. - -Mr. OGILVIE. Yes. Leave it out of the law. - -Mr. CAMPBELL. When the assignment was made, he would provide for all -extensions. - -Mr. OGILVIE. That is right. - -Mr. HINSHAW. Are these contracts for royalty made to include a -possible extension of the copyright? - -Mr. OGILVIE. Not generally; because the author may be dead when the -time for the renewal comes. - -Mr. CURRIER. But it can be renewed then by his widow. - -Mr. OGILVIE. But they do not do it generally. - -Mr. CURRIER. I should suppose that in almost all cases under the -existing law they would get a renewal. - -Mr. OGILVIE. They do at times, but not often. - -Mr. SULZER. I think I understand what you mean, and that is this: That -where there is no subsisting contract, then that the publisher shall -not join---- - -Mr. OGILVIE. The publishers shall not be required to join. - -Mr. SULZER (continuing). In the application for the renewal of the -copyright? - -Mr. OGILVIE. Yes. As this is, it makes it impossible for the author or -his widow or children to secure the extension of the copyright without -the licensee joining. Then he has it in his power to diminish the -royalty paid to suit his own purpose. - -Mr. CAMPBELL. If the contract for the copyright does not provide as -between the author and the publisher for any renewal, what position -would you be in then? - -Mr. OGILVIE. According to this law it is impossible to get a renewal -unless the licensee joins in the request. - -Mr. CAMPBELL. The license expires---- - -Mr. OGILVIE. But the license does not expire until after the copyright -expires. - -Mr. CAMPBELL. What is the length of your contract that you usually -make? - -Mr. OGILVIE. This is a new provision entirely. - -Mr. CAMPBELL. Under the old law, I mean? - -Mr. OGILVIE. Under the old law it usually lasts as long as the -copyright lasts. - -Mr. CHANEY. You suggest that we leave out this last proviso -absolutely? - -Mr. OGILVIE. Yes, sir. - -Mr. BONYNGE. Not to leave it out absolutely---- - -Mr. OGILVIE. I think it should be left out altogether. It is wholly -unfair to an author. I can see no reason why the publisher should have -any right of that kind. The Constitution grants the right to an -author, and if the publisher desires to secure those rights that is a -matter of contract. Let him make a contract covering that point. - -Mr. HINSHAW. If the copyright had been assigned, the original -proprietor would have lost all interest in the copyright; would he -not? - -Mr. OGILVIE. The party who now takes a copyright takes it with the -understanding that it shall expire at a certain time; and then he is -in no better position and no worse than any other publisher who has -not had a contract with the author. - -Mr. CHANEY. Suppose your contracts under this bill, should it become a -law, should provide for the life of the copyright, together with any -extensions thereof--then what would you say as to the proviso? - -Mr. OGILVIE. Suppose the bill should provide for the life of the -contract, together with any extension thereof? - -Mr. CHANEY. Suppose under this bill, should it become a law, your -contracts with the author should provide for the license and -assignment to extend the copyright during its life and all extensions -thereof? - -Mr. OGILVIE. If the author wishes to make a contract of that sort, -that is the author's business; but let the author thoroughly -understand what he is doing. As it is here, the author may think he is -entitled to the license for a renewal term, whereas he finds the -publisher has it wholly within his hands. The publisher is not -entitled to it; it is not his. - -Mr. SULZER. After all, it resolves itself down to a mere question of -contract? - -Mr. OGILVIE. Yes; but this eliminates the necessity for making a -contract, because this gives certain people rights. - -Mr. SULZER. Only where there is a subsisting contract, however. - -Mr. OGILVIE. But the contract as at present expressed is for the life -of that copyright. - -Mr. MCGAVIN. The life is fourteen years? - -Mr. OGILVIE. Twenty-eight and fourteen. Now, then, let us assume, -under this section, that a copyright expires next year. Let us assume -that this bill passes, that a copyright expires next year, and that I -am the author of a certain book. I go to my publisher and say: "Here -under the law I am entitled to a renewal of the copyright for my book -for a term of fifty years in all, or during my life, or whatever the -term may be." The publisher replies: "Very well; you want me to join -in the securing of that extension, do you?" "Yes." "Well, I have been -paying you 20 per cent royalty; I will pay you 2 per cent hereafter, -and if you do not take that I will pay you nothing." Is it impossible -to suppose that some publishers would do that when they carefully -provide against going to the penitentiary for committing perjury? I -think not. - -Another point: in section 15, in the last paragraph, this language -appears: - - Where the copyright proprietor has sought to comply with the - requirements of this act as to notice, and the notice has been duly - affixed to the bulk of the edition published, its omission by - inadvertence from a particular copy or copies, though preventing - recourse against an innocent infringer without notice, shall not - invalidate the copyright. - -Now, let us see where that lands us. How have the public any means of -determining whether "the bulk" of the books has contained a notice of -copyright? Assume that I get hold of a book that contains no notice of -copyright, and as a publisher I reprint it. It may have been an -expensive book to reprint. It may have cost me several thousand -dollars. What provision is there in this law to reimburse me for -having innocently done that which, under the law, apparently I had a -perfect right to do? Not any. I think there should be some provision -to reimburse a man who does a thing of that kind under an apparent -right. - -Mr. CHANEY. This is not a case of ignorance of the law; you think it -is a case of ignorance of fact? - -Mr. OGILVIE. Ignorance of fact. You are not obligated at present to go -to the Copyright Office to ask any questions. The book itself is -supposed to present all evidence of existing copyright. - -Mr. CHANEY. Could you not obtain that information at the office of the -Librarian? - -Mr. OGILVIE. In regard to that as arranged at present, just to -illustrate the point, I will state that I printed a book in Chicago, -an English book, apparently published in England, containing no notice -of American copyright. I spent several thousand dollars in getting the -book out, and have spent several thousand dollars since then in -lawyers' fees. The point was this: The book was published under one -title in the United States and under another title in Great Britain. -It contained no notice of American copyright. - -In an excess of caution I communicated with the Librarian of Congress -asking whether a copyright existed on that particular book, by title, -in either the name of the English publisher or the name of an American -publisher, whose name also happened to be on the title-page of the -book; and I was informed that no copyright existed. I reproduced the -book. Judge Kohlsaat, in the Federal circuit court of Chicago, decided -that I was strictly within my rights. The circuit court of appeals -reversed his decision and has refused a rehearing, and we must, -consequently, take the matter to the Supreme Court. Now, I claim that -under the law a man who does that is entitled to compensation. - -Mr. PUTNAM. Excuse me just a minute, Mr. Ogilvie; will you permit, Mr. -Chairman, the register to say a word? - -The CHAIRMAN. Certainly. - -Mr. PUTNAM. It is simply in answer to Mr. Ogilvie's intimation that he -answered his inquiry, and that his inquiry was whether a copyright -existed upon that book. What was the answer that he got from the -office of copyright? - -Mr. SOLBERG. The only purpose in making any remark on that point is -that there shall not be a misunderstanding as to the nature of the -replies to such inquiries. Any matter of fact on record in the -copyright office is always at the disposal of any inquirer, but the -copyright office is very careful not to undertake to state the -termination of any copyright. It simply gives facts as to the -registration of title or whether it has discovered any. In fact, it is -very careful not to say even that there is no registration, but that -the indices of the office and the records of the office after careful -search do not disclose any. - -Mr. CHANEY. Mr. Ogilvie is substantially right in his statement, then. - -Mr. OGILVIE. And at this time I wish to publicly thank Mr. Solberg and -Mr. Putnam for the uniform courtesy with which they reply to all -inquiries that are addressed to their office. The gentleman is quite -right. That was exactly the phraseology used in his reply. But that, I -beg to submit, is the only source of information that publishers have; -and when they get that sort of information they are justified in -proceeding along lines indicated thereby. - -I say that every edition of a book that is copyrighted under the -United States law should contain notice of copyright, irrespective of -where it may be printed, and thus give the public due notice. - -Senator MALLORY. Let me ask you in regard to that instance that you -speak of in your experience. That book had two different titles, you -say? - -Mr. OGILVIE. Yes, sir. - -Senator MALLORY. That is, there was an English publication under one -title and an American publication under a different title? - -Mr. OGILVIE. Yes. - -Senator MALLORY. Were they identically the same book? - -Mr. OGILVIE. No; not identically the same book, even. - -Senator MALLORY. Which title did you publish under? - -Mr. OGILVIE. Under the English title. - -Mr. SULZER. Was the subject-matter different? - -Mr. OGILVIE. The subject-matter was different. A portion of it, -consisting of some 500 pages, was alike, but a considerable portion of -it was different. - -Mr. HINSHAW. The English book was copyrighted in the United States? - -Mr. OGILVIE. The American book was copyrighted in the United States. -The English book contained no notice of copyright, and I may go -further and say---- - -Mr. SULZER. Did you publish the English book? - -Mr. OGILVIE. We published the English book. I may go further and say -that the American publisher, by contract, agreed to the elimination of -the American copyright mark; and he did that for this reason: The -people who live in Great Britain refuse to buy, if they can avoid it, -American books. I have had opportunities to sell several thousand -copies of my copyright books, provided I would leave out of them the -American copyright notice. I have in my office in Chicago at the -present time a great number of American copyright books that have been -printed in the United States and sold to publishers in Great Britain, -who required the elimination of the American copyright notice; and the -American publishers were foolish enough to comply with that request, -thereby, in my humble judgment, vitiating their copyright. I say that -in the case of an American copyright book the public are entitled to -be informed, not merely by the insertion of the word "copyright," but -by the insertion of the word "copyright," together with the date on -which the copyright was taken out and the name of the person who took -it out, exactly as the law is at present. It is not enough to simply -substitute the word "copyright;" it means nothing. - -Mr. CURRIER. Suppose in the case you have referred to you began to -publish this book without any knowledge that it was protected by -copyright? Could you not go right on and publish and sell that book? - -Mr. OGILVIE. The courts have enjoined me. - -Mr. CURRIER. If this law is passed, could you not do that? Let me read -it. (Reading:) - -"It's omission"--that is, notice of copyright--"by inadvertence from a -particular copy or copies, though preventing recourse against an -innocent infringer without notice." - -You are an innocent infringer; you can go right along and dispose of -the books. That is your case; that is your defense in any proceeding -against you for selling these books. - -Mr. OGILVIE. Yes. - -Mr. CURRIER. But it does not invalidate the copyright as against all -others, nor prevent recovery for an infringement against any person -who, after actual notification of the copyright, begins an undertaking -to infringe it. - -Mr. OGILVIE. Well, will you tell me what this means--"shall not -invalidate the copyright?" - -Mr. CURRIER. Why, the copyright exists as against everybody but you in -that edition of the book. - -Mr. OGILVIE. Very well, if that is the case. - -Mr. CURRIER. But if this bill passes, you would have a right to go on -and complete the edition of the book and sell it. - -Mr. OGILVIE. If that is the construction that the courts give it, very -well. - -Mr. CURRIER. There can not be any doubt about the construction. It is -only the man who, after actual notice that the copyright exists, -begins an undertaking to infringe it who is affected. - -Mr. OGILVIE. I read that section very carefully, and I see the point -that you raise; but I could not---- - -Mr. CURRIER. I think this gives you full protection. - -Mr. OGILVIE. I could not get over the statement, however, that it did -not invalidate the copyright. - -Mr. CURRIER. But it does not invalidate the copyright. - -Mr. OGILVIE. As applied to everybody else? - -Mr. CURRIER. To anybody who has notice before he begins. - -Mr. OGILVIE. Very well. Now, then, with regard to the insertion of -notice, to get back to the subject, I consider that the insertion of -the notice is essential. If we are ashamed of the United States, if we -must cater to England, and France, and Germany, and other nations by -the elimination of a notice that indicates the origin of our books, -why do we desire to protect their authors? - -Mr. CURRIER. Oh, this omission that is referred to is a mere -inadvertence in a particular copy. - -Mr. PUTNAM. I understand now, Mr. Chairman, if you will permit me, Mr. -Ogilvie, it is in aid of your statement---- - -Mr. OGILVIE. Yes. - -Mr. PUTNAM. I understand now that Mr. Ogilvie is referring to the -requirement as to the notice being in terms limited to the edition -sold in the United States. - -Mr. OGILVIE. Yes. - -Mr. PUTNAM. And it does not extend to any edition that may be produced -and sold abroad? - -Mr. OGILVIE. Yes. - -Mr. PUTNAM. I understand that you think that it ought to be on all -authorized editions of books? - -Mr. OGILVIE. All authorized editions. The copyright law says that the -notice shall go on the title-page or the page immediately following. -You turn to any book, and what do you find on the page immediately -following? Practically nothing, unless the copyright notice is there. -There is plenty of room for it. If they can engrave the Lord's prayer -on a three-cent silver piece, there is certainly room enough to put -those half dozen words on the back of their title-page. - -In regard to the publication of books under two titles, it seems to me -that some provision should be made in the law to protect a man who -publishes a book that is printed abroad under one title and is printed -in this country under another, provided the foreign edition does not -contain notice of copyright. As it is to-day, and as it will be under -this law, one can import a book printed in England; it may have been -written on the same subject as that which you intended to produce a -book on; you have carefully warned your editors to abstain from making -extracts from a book that is printed in this country or that contains -a notice of copyright. You proceed. Your editor finds a book in a -library that does not contain notice of United States copyright. It is -published abroad by a publisher different from the one who issues it -here. There is nothing to warn him. He makes copious extracts, and the -owner of the copyright may be perfectly well aware of the fact that he -has made those extracts. Under this law as it is proposed, he may -permit that infringement to continue for three years and then claim -damages, not less than one dollar a copy, although the book may have -been sold for 10 cents per copy, and practically put the apparently -infringing publisher, who acted in perfect good faith, out of -business. It is unjust; and I submit, gentlemen, that those matters -are proper subjects for consideration, and that they should not be -enacted into a law in their present form. - -Now, to refer to some of the remarks made by my predecessor, Mr. Olin. -He said that the American Publishers' Copyright League and the -American Publishers' Association represented practically all of the -publishers of the United States. I differ distinctly and materially -with him. They do not. They represent a few and only a few of the -publishers of the United States. I doubt very much if a single -publisher west of the Alleghenies (with very few exceptions) is a -member of either of those associations. There may be a few -exceptions--I know now that there are--but very few, and he is not -qualified to speak for the others who are not members of those -associations, and they do not represent a majority. - -In regard to importation, he said that Scribner would be very glad to -import a book if he were requested to do so. Now, I am a publisher, -and if it were my book I do not think I should be very glad. I think I -should tell the intending purchaser that I had a copy of the book that -was at his disposal for the fixed price that I had placed upon it, and -I think Scribner would do likewise. - -In regard to cheap editions, which he spoke of and said that at the -end of the copyright a publisher was desirous of securing as large a -circulation as possible for his books--that is true within a year or -two of the end of the term of copyright. But I can not recall at this -moment a single book the price of which has been reduced materially -until so close to the end of the term of copyright as to make it -practically valueless to the original publisher unless he did reduce -the price; and he does it, not for love of the public, not because -he is considering the public, but simply to get ahead of his -fellow-publisher. He is the man who then has a couple of years in -which to exploit a cheap edition; and it seems to me that under the -law as it is suggested, a term of fifty years from the date of the -death of the youngest of the authors is going beyond what the framers -of the Constitution decided was a limited time. Let us assume that -Mark Twain, if he were 80 years of age, were to write a book. He has -his daughter, who may be 20, write a few lines in that same book. Mark -Twain dies in a few years; she lives to be 90. There is seventy years -of copyright, and fifty years after her death, making one hundred and -twenty years. I do not believe that that is a "limited time" within -the meaning of the phraseology of the Constitution. [Laughter.] - -Mr. CHANEY. That is the joint-author clause. - -Mr. OGILVIE. There is just one point that I had overlooked. I was not -at any of the conferences, but I have been informed that an attorney -representing certain of the special interests at those conferences -suggested that the public should be considered; and to quote literally -what I was told as to what happened, "he was hooted at and laughed -down." And I think that very fully expresses the sentiment contained -in this proposed copyright act, so far as the public are concerned. - -I thank you, gentlemen. - - -STATEMENT OF FRANK H. SCOTT, ESQ., PRESIDENT OF THE CENTURY COMPANY, -NEW YORK, AND PRESIDENT OF THE AMERICAN PUBLISHERS' ASSOCIATION. - -Mr. SCOTT. Mr. Chairman, I only wish to clear up two points that have -been raised by my predecessor. I am not responsible for the exact -wording of the clauses covering these two points, but I do wish to -emphasize their importance. - -The first is as to the question of the original publisher's rights at -the termination of the present contract or the present copyright. -Under the law as it now stands, at the termination of the copyright -the publisher would have a set of plates and possibly a large number -of books on hand. He can enter the market, no matter who comes into -the field, and compete on at least equal conditions. - -Under the bill as it is proposed now, if the author secures a -continuation or a renewal of his copyright, and the publisher is not -consulted the publisher would be left with his set of plates and his -investment in the sheets and stock; and it would be absolutely -impossible for him to sell them to anybody, because his contract -having expired, and the author may have gone and made a new contract -with a new publisher, leaving him entirely out of it. If there is no -copyright whatever he can compete on equal terms. - -I am only explaining why I think the publisher ought to have some -consideration under those circumstances. - -Mr. CURRIER. What do you say to the amendment suggested by the -gentleman who last spoke? - -Mr. SCOTT. Just what was that amendment? - -Mr. CURRIER. That the publisher might have the right to control the -extended term, provided he would pay the same royalty that he had -paid. - -Mr. SCOTT. I think the publisher ought to be obliged to pay the same -royalty that anyone else should pay at that time. It might be a very -old work. It might be that the time during which he could continue to -pay that royalty had expired. - -Mr. CURRIER. You could hardly set the right up at auction, could you? - -Mr. SCOTT. I am sorry to say it is very often done. - -Mr. CHANEY. Would you not think that would give the publisher an undue -advantage over the author? - -Mr. SCOTT. I think the law as it is at present framed is very broad. I -only wish to say now that I think the publisher ought to be consulted. -I suppose this will come up later, and I have not prepared any -argument on the subject. I am only pleading that the publisher ought -to have some consideration under those circumstances. - -Mr. CHANEY. Can not the publisher provide against all that by the -contract he makes? - -Mr. SCOTT. There will be no trouble about the copyrights taken out -after the passage of this bill. It is only with reference to -copyrights that are now in existence. - -Mr. CHANEY. Yes. - -Mr. BONYNGE. You think the language of the bill as it is is too broad? - -Mr. SCOTT. I think so. I think I should not have made it, myself, -quite so broad. - -The other point I wish to make is with reference to the publication of -the American copyright notice in editions of an American copyright -work which are published abroad. What the gentleman has said might be -very true if the matter were always within the control of the -publisher of the American edition, but, as you will readily see, it is -not always within his control. These books are very often written by a -foreign author. The contracts of the foreign author, for instance, in -the case of English novels, are made with his own publisher in London. -They have their own arrangement between themselves as to what notice -shall be put in the book. The American publisher is forced to place in -his own books published in this country the American copyright notice, -but he has no control as to what notice shall be placed upon books -published in Germany, or in France, or in Spain, or in Russia, or in -England. It is entirely beyond his control. - -Mr. CHANEY. Would you think the terms of this bill, then, are right? - -Mr. SCOTT. I should say the terms of this bill are right. It seems to -me it is perfectly possible for anyone desiring to reprint a book in -the United States to ascertain whether or not it is copyrighted. -Indeed, the general facts about any book which is so important that -anyone wishes to reprint it are notorious. It is known or it can be -easily ascertained whether the book is published in the United States -and whether it is copyrighted in the United States or not. And I do -not think that anyone should be able to get hold of a single copy, -whether printed abroad or printed in the United States, that does not -happen to have the copyright notice, and be permitted to go ahead and -reprint the book _ad libitum_. I think the rights of the owner would -not be sufficiently protected if that were permitted. - -Mr. MCGAVIN. What do you say about the case of the gentleman who just -preceded you--the lawsuit into which he got himself? - -Mr. SCOTT. That has been determined in the courts; it is not for me to -say. One judge decided that he was right, and the judge to whom the -case was appealed decided that he was wrong. - -Mr. MCGAVIN. He seems to have made all the necessary effort to find -out whether there was a copyright or not. - -Mr. SCOTT. That book, as I happen to know, was an edition of one of -the dictionaries, otherwise known as Webster's Dictionary. I think it -was perfectly easy for him to find out whether that book was -copyrighted in the United States or not. It is not for me to say -whether there was any technical omission which endangered the -copyright under the language of the present statute; but it does seem -to me that in books generally published outside of the realm of the -United States, and beyond the jurisdiction of the United States, it -should not be necessary for the American publisher, who owns the -copyright or who represents the owner of the copyright, to go abroad -and undertake to make arrangements of this kind. It might be very -difficult for him to make arrangements for the publication of the -American copyright notice on foreign editions which he does not print -himself and which he does not arrange to control. - -Mr. CHANEY. Mr. Chairman, I want to make a suggestion about the form -of expression of that clause on page 12. You will notice that in the -last line of that second paragraph of section 15 the word -"undertaking" is used. I do not know whether people generally -understand the use of that word "undertaking" as lawyers in my part of -the country do, but I would prefer the word "action" rather than -"undertaking," because "undertaking" usually refers to a bond of some -kind. "Action," it seems to me, is the proper word. - -Mr. PUTNAM. That is page 12, line 18, is it not, Mr. Chaney? - -Mr. CHANEY. Yes. The word "undertaking," you know, is used by lawyers -generally in the sense of a bond or some agreement to stand good for -the default of another, whereas "action" is the name of the suit. - -Mr. PUTNAM. This was not intended to apply to a legal action. - -Mr. CHANEY. But is it not in the same nature? - -Mr. PUTNAM. No; it was simply meant to apply to the beginning of some -enterprise, the beginning to prepare to manufacture. It is a business -undertaking, not a legal one. - -Mr. CHANEY. I misunderstood it, then. - -Mr. BONYNGE. That is what I understood it to be--an enterprise. - -Mr. CURRIER. You might let the two words go out, so it would read, -"who, after notification of the copyright, begins to infringe it." -Then it would be a question of fact. - -Mr. PUTNAM. Mr. Chairman, you have asked me to announce that it will -be the desire of the committee to have the names and addresses of all -those present at these hearings, and the relations in which, if they -desire to express it, they are here, whether in favor of or in -opposition to the bill. We have provided a register at the door in -which those names can be noted. I understand that it is desired that -that shall extend to all those present. - -The CHAIRMAN. All present, and in such form that it may be placed in -the record that we are making. - -Mr. CHANEY. You mean also to include, I suppose, a brief expression -from these people as to their objections, and to what their objections -related? - -Mr. PUTNAM. Yes. The register will be supplemented by their -communications, I suppose--the register itself, including their names. - -Mr. Horace Pettit, Mr. Chairman, who spoke yesterday, desires to -supplement his remarks with an additional suggestion or two, which he -has put in writing, and asks simply to have entered in the record, -with your permission. - -Doctor Lewandowski, present here, asks me to submit a request in -writing from a firm of music publishers in New York, that he submit to -you a communication in aid of the provisions for the protection of -music publishers against reproduction by mechanical devices. He -submits that in writing, with the request that it may be entered on -the record. - -(The various papers above mentioned will be found at the end of this -statement of Mr. Putnam.) - -Mr. PUTNAM. The copyright office, Mr. Chairman, is now in receipt, -naturally, since the bill has been introduced, of some suggestions -from those who have participated in the conferences, and since the -bill has been introduced and is in the custody of your committee it -would seem that those belong to the files of your committee. If you -will permit me, I will submit these, without reading them, to be -entered in the record. - -The CHAIRMAN. Do you think they ought to be printed in the record of -the meeting? - -Mr. PUTNAM. I do, Mr. Chairman. I do not refer to mere formal -communications, or those that may be disposed of absolutely by the -copyright office. I do not mean all communications that come to us -with reference to the bill. These are simply four communications, from -four participants in the conference. One of them, Mr. A. W. Elson, -makes certain definite proposals for amendments, including one to -section 13 which would extend the manufacturing clause. He has sent a -copy of this to you, Mr. Chairman, and I assume that it will go in the -record, with the request for a hearing. - -The second is from Mr. Edmund C. Stedman, who was a participant, but -is in ill-health, and can not be here; but it contains an expression -upon the bill that I think should go in the record. - -Another is from Mr. Leo Feist, also a participant, and contains an -expression about the bill that he would have made here orally if -present. I think that should go in. - -Another is from Mr. Ansley Wilcox, who represented certain -lithographic interests very much concerned with the protection of such -prints as posters, and very much concerned, therefore, in the -specifications of subject-matter. He writes a communication which I -think should go into the record, expressing his content with the -specifications of sections 4 and 5. - -The CHAIRMAN. Those will be printed in the record. - -(The above-mentioned papers will also be found at the end of this -statement of Mr. Putnam.) - -Mr. PUTNAM. I have information, Mr. Chairman, that when the matter of -the reproduction of music by mechanical devices comes up for -discussion, Mr. John J. O'Connell, an attorney of New York, would like -to be heard, representing ten manufacturers of automatic piano players -in New York City, and desiring to be heard only in opposition to those -portions of the bill respecting musical copyrights, and that in -connection with the same general subject-matter Mr. Howlett Davis, an -inventor of material that enters into these devices, desires an -opportunity to make some opening remarks, pointing out how the -proposed bill will, if enacted, act in restraint of invention, and -show how it encroaches upon the existing patent laws. - -If it is your pleasure, now, Mr. Chairman, I would suggest that it -would be helpful to have an expression from the librarians dissenting -from the assent of the American Library Association with regard to the -importation clause, while Colonel Olin's remarks are fresh in mind, -and if that is your pleasure, I think it is only fair that I should -make clear the status of that provision. - -The list of participants in the conference included two associations -that might be interested or were certain to be interested in these -importation provisions. One was the National Educational Association -and the other the American Library Association. These importation -clauses concededly contain a restriction, a limitation, a diminution -of existing privileges of importations enjoyed by individuals and -enjoyed by certain institutions. - -The National Educational Association might well have spoken for both -individuals and institutions and generally. As a matter of fact, it -should be clear that the participation of the National Educational -Association in the conferences was of the slightest. They were -invited, we urged them to be represented, and they were present by -delegate at the first and the second conferences; but their -participation was of the slightest. There was no expression from them -upon the diminution in the case of individuals, and they contented -themselves at the outset with an expression of dissent from any -provisions which tended to diminish in any way the present privileges -of libraries. - -The American Library Association was present by two accredited -delegates, who considered, by later action of the representative board -of the association, that they had authority to represent the -association in assenting to final provisions. Those two delegates were -the present president of the American Library Association, Mr. Frank -P. Hill, of the Brooklyn Public Library, and Mr. Frank C. Bostwick, of -the New York Public Library. Mr. Bostwick was here yesterday, but has -had to leave to-day. Colonel Olin's remarks included the American -Library Association as one of those associations for whom he could -give a general assent to the bill substantially as it stood. Coupled -with that, however, should, I think, be before you this entry in the -record of our conference in March last. At that conference these -provisions were, I believe, substantially (as far as they regarded -libraries) as they stand in the bill, except that one proviso has been -added, which is rather in favor of libraries, as we understand it, -than otherwise. They expressed themselves then thus: - - Mr. HILL. There is very little that I need to say. The - paragraph relating to the copyright respecting the libraries has - been taken up very carefully by the executive board and the council - and by the delegates, and we are satisfied as an association with - the draft as submitted, and, personally, I approve of the change - which has been agreed to this morning between the publishers and - the delegates. That related to the additional proviso that they - should not be prohibited from importing foreign editions in these - exceptional cases, where they could not get the American edition. - - I think it is only fair to state, Mr. Librarian, that while the - executive board and the council of the American Library Association - have both voted for the adoption of this draft there will be - individual opposition. There are some librarians and some libraries - that are opposed to any change in any part of the law which affects - importation, and so have reserved the right to oppose that part of - the bill. I think it is due to you that such statement may be made, - so that you may know the individual opinion as well as the general - one. - -If Mr. Bostwick had been here, he would to-day have called attention to -that. I do it simply because those delegates are not here to say that; -and I do it in order to give Mr. Cutter's remarks a proper standing -before you. Mr. Cutter, as I understand it, represents librarians and -libraries who object to any diminution of the present privileges. - -(The papers referred to during the foregoing statement by Mr. Putnam -are as follows:) - - THE NEW WILLARD, - _Washington, D.C., June 7, 1906_. - - _To the honorable Joint Committee of the Senate and House of - Representatives._ - - GENTLEMEN: Referring to the proposed bill to amend and consolidate - the acts respecting copyright, now before the committee, I would - propose the following amendments: - - Amend section 3 (p. 3, line 8) by adding continuously at the end - of said section the following: - - "_And provided_, That no devices, contrivances, or appliances, or - dies, or matrices for making the same, such as referred to in - clause (g), section 1, made prior to the date this act shall go - into effect, shall be subject to any subsisting copyright." - - Amend section 5 (p. 4, lines 2 to 3) by adding, between lines 2 - and 3, before the word "photographs," the following: "(j) - talking-machine records." - - Amend section 18, clause (b) (p. 14, line 14), by adding, between - the word "composition" and the word "any," the words "any - talking-machine record;" - - Amend section 23 by striking out from the clause marked "First" - (p. 17, lines 18 to 20) the following: "or any device especially - adapted to reproduce to the ear any copyrighted work." - - Amend section 23 by inserting in the clause marked "Fourth" (p. - 18, line 4), between the words "of" and "all," the following: "any - device, contrivance, or appliance mentioned in section 1, clause - (g) and". - - Hoping that these proposed amendments will meet with the approval - of the committee, I remain, - - Yours, very respectfully, - - HORACE PETTIT, - _For Victor Talking Machine Company_. - - - JOS. W. STERN & CO., MUSIC PUBLISHERS, - _New York, June 5, 1906_. - - Dr. D. P. LEWANDOWSKI, - _Care of Raleigh Hotel, Washington, D.C._ - - MY DEAR DOCTOR: We herewith authorize you to represent us and - speak in favor of the copyright bill at the meeting of the - committee. Honorable Senator Kittredge, or any other honorable - gentleman who will do anything to further the passage of this - bill, will earn our everlasting gratitude and will be working for - the advancement of an industry which has been sorely oppressed by - piracy and injustice. - - There is an excellent opportunity now to show fair play to a body - of citizens who have been working at a disadvantage and fighting - for years for their just rights and for proper and adequate - protection from the Government. - - With best wishes, we remain, - - Yours, very sincerely, - - JOS. W. STERN & CO. - - - _To the Committee of the Senate on Patents, Senator Alfred B. - Kittredge, of South Dakota, Chairman._ - - GENTLEMEN: I appear before you this morning in the name and as the - representative of the firm of Jos. W. Stern & Co., music - publishers, of New York, and in their behalf I wish to state that - the bill on copyrights S. 6330, to amend and consolidate the acts - representing copyrights, which is before you this morning, is of - the highest importance, for the protection of the authors and - composers and music publishers, to protect their copyrights. - - The old law is very vague and unsatisfactory. The proposed new law - would help music publishers and composers very much. - - There has been a great deal of piracy going on and their best - "hits" have been copied and pirated. - - The new law makes such piracy a criminal offense, punishable by - fine or a year imprisonment. If passed, as we hereby most humbly - pray that it should be so, it will punish the pirates, because the - fine alone can not stop their unjust deeds, and they laugh and pay - their fine, but a year of imprisonment will certainly change all - for the best. The said pirate would not risk a year of prison at - all times. - - Then again, the new law provides that no phonograph company or any - makers of musical instruments, as well as makers of self-playing - pianos, can deliberately use the work of the brain of the composer - as well as the property of the publisher without permission to do - so or paying some remuneration for the same. - - Imagine the injustice of the thing. A composer writes a song or an - opera. A publisher buys at great expense the rights to the same - and copyrights it. - - Along comes the phonographic companies and companies who cut music - rolls and deliberately steal the work of the brain of the composer - and publisher without any regard for the said publisher's or - composer's rights. - - They sell thousands and thousands of the "hits" of the publisher, - which he has worked hard to make, without paying, as stated - before, a cent of royalty for them. - - The new law proposed remedies this, but of course the phonographic - companies are fighting the new bill tooth and nail. - - In this brief outline I shall include another important statement - to show how much work, and anxiety of the brain a composer must - use to write something in poetry or music, and what anxiety and - worry he endures until the said "hit" is an accomplished fact. - Sometimes his entire family depends upon the publishing of this - brain work, and when it is accepted and the publisher issues the - same for the public's appreciation, behold, in the next few days - every sort of instrument is playing this man's composition. - - I for one have suffered this injustice and piracy. Therefore I - feel how dreadful it is in general to suffer and to be deprived of - remuneration for the just and intelligent inventive brain work - which a man produces by his genius. - - This is, gentlemen, an excellent opportunity to show fair play to - a body of citizens who have been working at a disadvantage and - fighting for years for their just rights and for proper and - adequate protection from the Government. I conclude by appealing - most earnestly and respectfully to the honorable gentlemen of the - committee to do their utmost to forward the passage of this bill, - and I am convinced that they will earn everlasting thanks and - gratitude for creating a law which will earn for them recognition - and will carry their name to history for having worked for the - advancement of an industry which has been sorely oppressed by - piracy and injustice. - - Believing that my most humble indorsement of this new law and the - desire of the firm of Jos. W. Stern & Co., who have authorized me - to address this body in their behalf, will soon be upon the - statute books protecting copyright, I have the honor to remain, - - Very respectfully, yours, - - D. P. LEWANDOWSKI, M.D. - 34 EAST TWENTY-FIRST STREET, _New York City_. - - - A. W. ELSON & CO., EDUCATIONAL ART PUBLISHERS, - _Boston, June 5, 1906._ - - HERBERT PUTNAM, Esq., - _Librarian of Congress, Washington, D.C._ - - DEAR SIR: As I do not expect to be able to be present at the first - hearing of the copyright bill which is now introduced in Congress, - I write to ask whether the suggestions that are made on the - accompanying sheet can be placed in the hands of the committee. - - I should like to appear in favor of these suggestions at any - subsequent hearing that may be given by the committee on the bill. - - I have arranged the suggestions in the order of importance from my - own particular standpoint. - - As this may reach you during or after the hearing before the joint - committee of the Senate and the House, I have mailed a duplicate - of this to the chairman of the committee. - - Very truly, yours, - - A. W. ELSON. - - - _Suggestions of additions and amendments to the copyright bill - introduced before Congress May 31, 1906, entitled "A bill to - amend and consolidate the acts respecting copyright."_ - - _Section 5 (subsection J)._--That the words "and negatives" be - added after the word "photographs," so that subsection J shall - read: "Photographs and negatives." - - Negatives are made the subject of copyright under the present - copyright law, and there seems to be no valid reason why they - should be omitted in the new copyright statute. It would very - much simplify the copyrighting of all photographic reproductions - if negatives were made the subject of copyright, and for the - purpose of registration two prints of the negative copyrighted - should be filed in the copyright office. I would therefore - suggest that the following words be added to section 11, seventh - line, after the word "edition," "or if the work be a negative, - two prints made directly from it." - - _Section 13._--In this section typesetting and the lithographic - process are singled out from all other processes connected with - the manufacture of printed books, and given distinct protection - from foreign competition over all other processes in making books - that are copyrightable in the United States. Any such - discrimination is unjust, and if this section is retained, the - protection should be broadened to include any other processes - besides lithography. - - I would therefore suggest that section 13 be amended as follows: - After the words "lithographic process," in the seventh line, and - after the same words on page 6, first line, nineteenth line, and - thirtieth line, there be inserted the words "or any other process - or method," and after the words "a process," in the same line, - the words "or method." - - That the word "lithographs" in the second and third lines of the - same page be erased, and the word "illustrations" be inserted in - place of it; and on the same page, in the third line of that - portion of section 13 on that page that the words "where" and - "either" be erased. My preference would be to see the whole - section dropped out, but failing in this no undue preference - should be shown any one or two methods connected with the - manufacture of books. - - _Section 39._--In its present form could be made clearer if it is - intended to secure to an author of an original work of the fine - arts any copyright which he may have obtained under the statutes - on his work. On the other hand, if the section is intended to - secure to an author or artist any potential copyright in a work - on which he had not duly secured statutory copyright, then such - provision, it would seem, would be unreasonable and unjust to the - purchaser of the work; and I would therefore suggest the - following wording for this section: "The author of any original - work of the fine arts being the owner of such a work and having - copyrighted it according to the provisions of this act or any - previous United States copyright act, and who has marked upon - such original work such notice of copyright as may be required by - the act under which the work was copyrighted, shall not be deemed - to sell or transfer said copyright upon selling or transferring - the original work of art unless an agreement in writing covering - the transfer of said copyright be signed by the author." - - _Section 37._--Is open to the same criticism as section 39. It - might be corrected by the following changes, viz: That in the - third and fourth lines the words "which is the subject of - copyright" be struck out and the word "copyrighted" substituted - for them. - - _Section 8._--In providing the conditions under which a foreign - author or proprietor of any work may obtain copyright on such - work within the United States, section 8 grants certain - privileges to a foreign proprietor which are not granted to an - American proprietor of a foreign work; as, for example, an - American proprietor of a foreign painting who desired to copy and - publish it in this country. - - I would therefore suggest that section 8 after the words - "provided, however" in the fifth line and through subsection - (_a_) read as follows: "That copyright secured by this act shall - extend to the work of an author who is a citizen or subject of a - foreign state or nation only when such author or the proprietor - of the work (_a_) shall be living within the United States at the - time of the making and first publication of the work or shall - contemporaneously with publication in some foreign country - publish the work within the limits of the United States." - - A. W. ELSON, - _146 Oliver street, Boston_. - - - NEW YORK, _June 4, 1906_. - - HERBERT PUTNAM, Esq., - _Librarian of Congress, Washington, D.C._ - - DEAR MR. PUTNAM: I regret to find myself, after the strain of - breaking up my home, totally unable to attend the meeting of the - Senate and House committees on the 6th. In fact, it is out of my - power to go to Washington this week for either the formal or the - informal discussions. - - It seems to me that my time of active work, relative to copyright, - is about ended; and possibly I ought to resign from the presidency - of the American Copyright League. I am no longer the president of - the National Institute of Arts and Letters, Professor Sloane - having become my successor. I think the later draft of your bill - is in excellent shape as a basis for consideration by the joint - committee. - - Respectfully, yours, - -EDMUND C. STEDMAN. - - - LEO FEIST, MUSIC PUBLISHER, - _New York, June 1, 1906_. - - Hon. HERBERT PUTNAM, - _Librarian of Congress, Washington, D.C._ - - DEAR SIR: Very many thanks for your courteous communication of the - 29th instant, and I assure you that I appreciate the compliment - paid in the sending thereof. - - If all is well, Mr. Witmark and myself will be at the conference. - - Earnestly hoping that the bill will be passed in its present - perfect form, believe me, - - Very truly, yours, - - LEO FEIST. - - - WILCOX & BULL, COUNSELORS AT LAW, - _Buffalo, N.Y., June 5, 1906_. - - Hon. HERBERT PUTNAM, - _Library of Congress, Washington, D.C._ - - MY DEAR MR. PUTNAM: I beg to acknowledge, with thanks, various - circulars and documents relating to the new copyright bill, - including the proof copy of the bill as printed May 19, and the - printed copy of the bill as introduced May 31, with notices of the - first hearing before the joint committees of the Senate and House, - on Wednesday, June 6, at the Library building, and of the - preliminary conference to be held to-day, all of which have had my - careful attention. - - I congratulate you that the bill has taken this definite form and - is now to be given a preliminary hearing so that it will be in - shape to be urged for passage next winter. The bill is a monument - to the industry and broad intelligence and information of those - who have been actively concerned in drafting it, and particularly - of yourself and Mr. Solberg. I am proud to have had any share, - however slight, in outlining it, and shall be glad to take part as - actively as possible in urging it upon Congress and commending it - to the people at large. - - As affecting the interest of my client, the Consolidated - Lithograph Company, which is a large producer of lithographic and - other prints, engravings, etc., especially for use as posters, the - form of the bill seems satisfactory to me and I have no doubt it - will be so to my client. This refers particularly to the - provisions of sections 4 and 5, defining the subject-matter of - copyright and the form of applications for registration. These - provisions are in the highest degree liberal and enlightened. - - The Consolidated Lithograph Company has suggested that I attend - the hearing in Washington to-morrow. I should like to do this, at - least for the purpose of showing the interest which we feel in the - measure and to assist in impressing the committees of Congress - with its importance, though I know that after this hearing the - bill will simply lie over for further consideration and for action - at the next session. But it seems impracticable for me to be in - Washington to-morrow, and I think that I can be of more service at - a later time, when I hope that the company will still be disposed - to send me there. - - Very truly, yours, - - ANSLEY WILCOX. - - P.S.--Will you please send me an extra copy of the bill, or two if - you have them to spare? - - -STATEMENT OF WILLIAM P. CUTTER, ESQ., OF THE FORBES LIBRARY, -NORTHAMPTON, MASS. - -Mr. CUTTER. Mr. Chairman and gentlemen, I claim to represent no -association, nor to represent myself personally. I claim to represent -only the public libraries of the following cities: Chicago, St. Louis, -Baltimore, Louisville, Pittsburg, Newark, Minneapolis, Los Angeles, -and Springfield, Mass. Also the libraries of the following -universities and colleges: Yale, Cornell, Colgate, Wisconsin, -Michigan, Amherst, and Brown; the New York State Library and the -Connecticut State Library; the Western Massachusetts Library Club, -comprising a membership of forty libraries, and the Connecticut -Library Association, representing the organization of libraries in -Connecticut. I wish to speak a few moments on that provision contained -at the bottom of page 24 of the Senate print of the bill. - -Mr. WEBB. What section? - -Mr. CUTTER. Section 30; the third subsection of section 30, at the -bottom of page 24, line 25, including all after the words "United -States"--in other words, that portion of the bill which prohibits -importation by public institutions of a certain class of books. - -You are well aware of the fact that existing law allows public -libraries to import two copies of any book without any restriction as -to what the book shall be. There are certain points that will make the -suggested legislation a great hardship to the libraries. - -Mr. CURRIER. Pardon me just a minute. Can you import two copies of an -unauthorized edition? - -Mr. CUTTER. Yes, sir. - -Mr. CURRIER. Can you do that to-day? - -Mr. CUTTER. Yes, sir; we can now. - -Mr. CURRIER. A fraudulent reprint, for instance? - -Mr. CUTTER. Yes, sir. - -Mr. CURRIER. There is absolutely no restriction, as you understand it -to-day? - -Mr. CUTTER. There is no restriction at all, as I understand, on -library importations; but there is in this bill in regard to it. - -Mr. CURRIER. I was asking about existing law. - -Mr. CUTTER. Yes; I understand that libraries can import any books that -they wish. - -Mr. CURRIER. I had the contrary opinion, but I may be mistaken. - -Mr. CHANEY. You object to that entire part of the bill, do you? - -Mr. CUTTER. Yes; I object to it principally for this reason: In -importations for large libraries, such as those that I represent--it -does not apply to small libraries which import only a small number of -books--a case of books will come in from abroad, books that are not -copyrighted in this country, English books. One book in that case -might, by a mistake, be one which was copyrighted here, printed in -England, and containing no notice of its copyright in the United -States of America. If that fact was discovered it would send all of -that box of books to public store; it would place all the box of -books, as I understand, in danger of being destroyed; and it would -place the librarian who did the importing in danger of having to show -the Secretary of the Treasury, under this law, that he was not guilty -of trying to import that book illicitly. - -Mr. CURRIER. Under what section of this law? Let that go in the record -right here. - -Mr. PUTNAM. Sections 28 and 29, I think. - -Mr. CUTTER. Section 28 is in regard to the condemnation, on page 21 of -the Senate print. Sections 26 to 29 include the penalties that I have -referred to. - -Our objection to that is the fact that libraries in these days must -have at their disposal as quickly as possible the printed thought of -foreign countries. If there is any delay in our obtaining the box of -books (and those who have had experience, as I have, for thirteen -years in importing books for libraries in this country, know that -there is often six months delay in getting a box of books through the -custom-house where there is the least question as to any of them) it -would mean, practically, that our reason for buying the books at that -time had disappeared. We want the printed English thought as quickly -as possible. - -Mr. CHANEY. Do you think that is necessary to the efficiency of a -public library? - -Mr. CUTTER. I do. - -Mr. CHANEY. That you should get those books immediately? - -Mr. CUTTER. I do; yes, sir. - -Now, my other reason is a commercial reason; and in order to state it -I shall have to go somewhat into ancient history. - -About the year 1901 certain publishers of this country formed an -association called the American Publishers' Association, and, in -conjunction with the American Booksellers' Association, entered into -an agreement to control absolutely the selling price of books in this -country. It was an agreement among the publishers that they would not -furnish books to booksellers who would not agree to sell the books at -a standard price--in other words, a trust proposition. - -Mr. CHANEY. We have heard of trusts before. [Laughter.] - -Mr. CUTTER. The libraries were granted a 10 per cent discount from the -price of the class of books affected by this agreement, so-called -net-price books. We discovered, however, on examination, that these -new prices which were fixed were so much higher that the net result to -us was an advance of 25 per cent in the price of the book, and we -found that the majority of those books were not books written by -American authors, but they were books written by English authors and -copyrighted in this country, and that there was a difference in price -amounting to the 25 per cent tariff on printed books. So that this -question, gentlemen, is a question of trusts and a question of tariff. - -Now, the librarians have been getting around that by importing English -books, because the same book printed on the other side is sold in the -case of these expensive books at a very much reduced price compared -with the price on this side. If--I am going back now to my first -position--if I am prevented, by the difficulties in getting through, -by accident, a copyrighted book, from getting at the noncopyrighted -book so long, then I will be forced to go to Mr. Scribner, who will -buy the books for me abroad at his price, against my interest. - -Senator MALLORY. Do I understand you to say that that book trust is -still in operation? - -Mr. CUTTER. Certainly. - -Now, I am connected with a library that spends $12,000 a year for -books in a country town. Of this sum $5,000 is spent for English -books. I am a representative of a city government which taxes itself -to a certain extent to educate the people in its community, and I -object seriously to paying $1,000 of that $12,000 to American -publishers as a tax. That is my point. - -Mr. CURRIER. What changes in this bill do you suggest? - -Mr. CUTTER. I should suggest the entire elimination of that provision. - -Mr. CURRIER. Of the entire paragraph? - -Mr. CUTTER. No; after the words "United States." - -Mr. CURRIER. That was the suggestion I made some time ago--after the -words "United States," in line 25. - -Mr. CHANEY. Yes; precisely. - -Mr. CURRIER. Would that be satisfactory to the people whom you -represent? - -Mr. CUTTER. That would be satisfactory. I think it would be -satisfactory to all librarians. - -Mr. HINSHAW. This would allow you to import, however, but one book, -whereas you have had the privilege of importing two? - -Mr. CUTTER. One book, but we are perfectly satisfied with that. I -think any library would be. A ruling of the Treasury Department has -held that a branch library is a library itself, so that in the case of -a large library wanting a book for each of several branches it would -be possible to import more than one. - -Mr. CURRIER. With that stricken out, the people you represent would -not object to sections 26, 27, 28, and 29? - -Mr. CUTTER. No; it does not affect them. - -The other point I wish to make is on behalf of another interest. I -wish to speak a word in behalf of an interest which is not represented -here at all--two interests, in fact. The first is the firms that are -in the business of importing books into this country and are not -represented and have not been asked to be represented; have not been -asked to come to these meetings. There are certain firms that are not -in the publishing business that are in the business of importing -books. - -Mr. CURRIER. I think we ought to say right there, as you say they have -not been asked, that the committee invites everybody. - -Mr. CUTTER. Yes; I mean up to this time they have not been asked. - -Mr. CURRIER. Those who were not represented at the conference, as well -as those who were. - -Mr. CUTTER. Whether they were asked here or not I do not know. Of -course, this being a public hearing, they had a right to appear. But -the point I want to make is this: That a great many of our libraries -have to import books through these men, because they get a cheaper -rate of importation through them than through some of the firms that -are also publishers of books. This would prevent the importation of -some of these books through those firms. It would practically ruin -their English business, largely ruin it; and on behalf of a library -that uses that method of importation largely, it seems to me that some -provision might be made for other importers than those who are -publishers of books. - -Those are the only arguments that I wish to present. - -Mr. CHANEY. To what section of this bill do you now refer? - -Mr. CUTTER. I am referring to the subsection of this same section on -page 24--section 30. - -Mr. CHANEY. Do you mean subsection E? - -Mr. CUTTER. Yes. - -Mr. CURRIER. No; the subdivision called "First." - -Mr. CHANEY. Oh, I see. - -Mr. CUTTER. I suggest this amendment to the clause reading, "When -imported, not more than one copy at one time, for use and not for -sale, under permission given by the proprietor of the American -copyright." - -I suggest leaving out the consent of the American copyright -proprietor. That changes existing law only in these particulars: It -allows the importation of only one copy instead of two copies, as the -existing law does; it gives the importer who has established a -business here based on legislation, and who is closely in touch--the -firms that I speak of serve libraries and learned men mostly with -expensive books and have practically no sale to the ordinary -public--it would give them an opportunity, and it would give a scholar -in this country who wants a book for a particular purpose for his own -use and not for sale an opportunity to import it. - -Mr. CHANEY. So that if you strike out "under permission given by the -proprietor of the American copyright" it satisfies them? - -Mr. CUTTER. It would satisfy the request of the importers, who are not -publishers. - -Mr. CURRIER. Do you appear for the importers? - -Mr. CUTTER. I appear for one of them only. - -The CHAIRMAN. Do you feel that you are authorized to speak for the -others? - -Mr. CUTTER. I am authorized to speak for one firm only. - -The CHAIRMAN. Do you feel that you represent the other importing -firms? - -Mr. CUTTER. I do not; no. I am quite convinced that I would be allowed -to represent them, but I have had no communication with them. - -Mr. BONYNGE. But you think you state their views on the subject? - -Mr. CUTTER. I have not any doubt of it. - -Mr. CHANEY. You spoke of "ancient history" back as far as 1901. Do you -regard anything back behind that as ancient history? - -Mr. CUTTER. No; but it is ancient history in the book business. That -is when the publishers of this country discovered that the Carnegie -gifts had made the library trade so large that they must do something -to make some more money out of it. - -Mr. PUTNAM. With your permission, Mr. Chairman, I would suggest that -Mr. Bethune, representing certain of the reproducing interests -particularly--I ought not to limit that by the word "reproducing," but -who represented at the conference the Reproductive Arts Copyright -League--should be heard. - - -STATEMENT OF FANEUIL D. S. BETHUNE, ESQ. - -Mr. BETHUNE. There are but two or three sections which the -Reproductive Arts Copyright League wish at this time to comment upon. - -Mr. Millet, on behalf of the artists, has stated that they are -satisfied with the sections relating to paintings as they stand, but -as I understand it the word "accessible," in section 14---- - -Mr. CHANEY. Whereabouts? - -Mr. PUTNAM. It is the last line on page 10 of the bill. - -Mr. CHANEY. I see. - -Mr. PUTNAM. It is in the second paragraph in the Library print. - -Mr. BETHUNE. That is such an indefinite, uncertain term that we -think---- - -Senator LATIMER. What are you referring to; what term? - -Mr. BETHUNE. The word "accessible"--"or if a work specified in -subsections F to L, inclusive, of section 5 of this act, upon some -accessible portion of the work itself or of the margin," etc. - -Mr. CHANEY. Where would you put it? - -Mr. BETHUNE. Let it be on some accessible portion, but let the bill -provide that it shall be always uncovered. As it stands now, it might -be on the back of the painting, and the painting might be in a box, -and it would be accessible in a sense. - -Mr. CHANEY. You would put in the word "uncovered?" - -Mr. BETHUNE. It should be uncovered. - -Mr. PUTNAM. Accessible and uncovered? - -Mr. BETHUNE. Accessible and uncovered. We want to be able to ascertain -at once by examining the painting in the frame, if it is in a frame, -whether the picture is copyrighted or not. - -Section 9 provides, about the fifth or sixth line, that "in the case -of a work of art" the notice "shall be affixed to the original before -publication thereof." The word "publication" is not defined, and it -has been the source of considerable litigation as to what is and is -not publication. - -The CHAIRMAN. Has that been settled by the courts? - -Mr. BETHUNE. It has not been settled by the courts. There are -differing decisions now. - -Mr. CURRIER. Is it not ordinarily understood to be the putting on sale -of the object? - -Mr. BETHUNE. No; I think not--not if it is a private sale. I think a -sale should be specifically stated by the statute to be a publication, -whether a private or a public sale, and the public exhibition of a -painting should be a publication of it. - -Mr. CURRIER. Will you suggest an amendment that will meet your idea? - -Mr. BETHUNE. I am not prepared to suggest an amendment, but I shall do -so in writing to this committee, if I may. - -Mr. CHANEY. In a general way, what is your idea? - -Mr. BETHUNE. That the statute should state that certain things shall -constitute publication of a work of art, and state that publication -shall include a sale, whether a public or private sale, and a public -exhibition of the work of art. - -I must refer again to section 14. That provides that not only in -respect of paintings, but also maps and photographs, the notice can be -on the back or the margin. Now, so far as a painting is concerned, -that is quite satisfactory to us if the notice is to be "uncovered," -but in respect of a photograph, which may be very loosely attached to -a little piece of pasteboard, and the notice may be put on the -pasteboard, which could be very easily removed from the photograph. -The reproducer to whom the photograph is then brought, there being no -evidence of its having been detached from any mount, may be easily -misled, and before he discovers that he is infringing he may have -invested thousands of dollars in the undertaking to reproduce it. - -Mr. CURRIER. Then your suggested amendment, "uncovered," does not meet -this objection, which you now state, at all? - -Mr. BETHUNE. It does in respect of the painting, but I do not think -that so far as the photograph is concerned the law should permit the -notice of copyright to be simply on the thing to which it is attached -or mounted. It should be on the photograph itself. I think that that -will prevent litigation and expense to both photographers and -reproducers. - -Mr. PUTNAM. Mr. Chairman, may I ask Mr. Bethune to state whether, -under the present law, the notice can be put on the mount of a -photograph? Is that your understanding--that it can not be, and that -this is an extension of the privilege? - -Mr. BETHUNE. I understand that it can under the present law. - -Mr. PUTNAM. That it can now; so that this simply repeats the -privilege. - -Mr. MCGAVIN. An objection was made here yesterday, I think, on the -ground that it would deface the photograph. - -Mr. BETHUNE. Yes; that objection has been made by the photographers; -but I leave it to the intelligence of this committee---- - -The CHAIRMAN. And in case of a fine picture, for instance, the artist -might object to having the words prescribed by this act appearing -permanently upon the face of the picture. - -Mr. BETHUNE. Yes, he might; but as a matter of fact, I am informed -that there are very, very few artists who do not insist upon putting -some mark, if not their name, upon the face of their painting. - -The CHAIRMAN. Can you call attention to that section? - -Mr. BETHUNE. There is no section in this bill providing for the -placing of the notice upon the face of the painting; but, I say, there -are very few artists, I am informed---- - -The CHAIRMAN. Where is the section that prescribes the form? - -Mr. BETHUNE. Section 14. - -Mr. MCGAVIN. On page 10. - -Mr. BETHUNE. It may be simply a "C," with a little circle around it. - -Senator MALLORY. Do you object to the word "accessible" here, on line -10? - -Mr. BETHUNE. Yes; the word "accessible." - -Mr. PUTNAM. Except as coupled with the word "uncovered." - -Mr. BETHUNE. Yes. - -Mr. MCGAVIN. If this language were made to read "accessible and -uncovered," it would necessarily, then, require that it be placed upon -the face of the photograph or picture, would it not? - -Mr. BETHUNE. No; I think not. - -Mr. MCGAVIN. You could not put it on the back, where it would be -uncovered? - -Mr. BETHUNE. No; I do not think that that would be covered---- - -Mr. CAMPBELL. How about the word "visible?" - -Mr. BETHUNE. "Visible" was the word which I suggested at the -conference. I do not know why it was not put in. - -Mr. PUTNAM. I may say, Mr. Bethune, if you will permit me, Mr. -Chairman, that this question of notice was a long-discussed question -between the artist group and the committee of the reproduction group; -and they started, of course, at very opposite extremes. We understood -finally that they reached this point: That in the first place there -should be a notice. That was a concession on the part of the artist -group, who thought there ought not to be any notice except their own -name. That there should be a notice--that is, something to indicate -copyright, even if it should be only "C" within a circle--was insisted -upon by the reproducing group. So that it was agreed that there should -be something to indicate copyright. Where should it be? - -Now, the present statute uses the term "visible;" but the reproducing -group said (if I am wrong, Mr. Bethune will correct me): "We do not -care that it shall be visible in the sense that he who runs may read -it. We do not care, even, that it shall necessarily be on the front of -the painting. It may be on the back of the painting. It must not be on -the frame, because the frame is a detachable thing. People's tastes as -to frames differ, and one collector likes one, while his successor may -prefer another, and he will change the frame, and with it goes the -notice. It must be on the thing itself"--that was their -contention--"but it may be on the back." - -Now, if it is on the back, is the word "visible" descriptive? We -wanted to get some word that would indicate that it might be put in -some place where it could be found by somebody looking for it, and -that was the requirement of the reproducer that somebody with a -sincere desire, not with a malicious intention to appropriate it, but -with a sincere desire to find out whether it was copyrighted or not, -might find out with a reasonable search intending to look for it. That -was satisfactory to them and that was the endeavor in using the word -"accessible." - -Now, it is that little doubt which Mr. Bethune has suggested to you. -Would it cover the back? And would it cover and prevent a case of -covering it up? The notice might be covered up. So he has suggested -the addition of the words "and uncovered," but the use of the word -"accessible" rather than the word "visible" was to endeavor to express -what we understood to be agreed to, as the agreed intention. - -Mr. BETHUNE. I think it will express it if "uncovered" is added. - -Mr. PUTNAM. I should add that the reproducers definitely objected to -the privilege on the part of the photographers, and so on, the print -publishers, etc., of putting the notice on the mount; but of course it -was understood that they had that privilege at present. They have that -privilege at present, but the reproducers never thought that that was -reasonable, and did not concede it to be reasonable. - -Mr. BETHUNE. Now, reproducers are open to fraudulent attempts to sell -to them copyrighted works by simply removing the notice of copyright, -and section 25, in the draft of the bill, imposes simply a penalty of -$100 as a minimum and $1,000 as a maximum fine for the removal of this -notice. We think that the punishment should be imprisonment as well as -fine. We want to protect ourselves from that fraud, which is very -frequently encountered. - -Mr. CHANEY. So that that paragraph of that section as it stands is -satisfactory to you? - -Mr. BETHUNE. Section 25, sir? - -Mr. CHANEY. Yes. - -Mr. BETHUNE. No. We want, as well as a punishment by fine of not less -than $100, the words inserted "or imprisonment" or "and imprisonment," -both for a specified term; it is not material how long it shall be. - -Mr. WEBB. Have you suggested your amendment to this section 14 that -some word instead of "accessible" should be used? Did you suggest -"visible"? Was that your idea? - -Mr. BETHUNE. That was the word which we did suggest, but "accessible" -is satisfactory to us if "uncovered" is coupled with it. - -Mr. WEBB. You want it to read "accessible and uncovered"? - -Mr. BETHUNE. Yes. - -Mr. WEBB. Would that apply to a magazine picture--a picture in a -magazine that had the notice on the back of the original? You could -look for it, and it would be uncovered. - -Mr. BETHUNE. In the case of a magazine, as I understand, it would be -covered by the copyright of the magazine. - -Mr. WEBB. Well, that is all right; I did not understand how that would -be. - -Mr. BETHUNE. Those are the principal features---- - -Senator MALLORY. I would like to ask you with reference to that -suggestion which you were referring to in regard to publication in the -matter of a work of art, or a plastic work or drawing. Is there any -definite suggestion that you could make, any definite change, so as to -convey your idea? I think I know what you want; but it seems to me it -is going to be pretty difficult to use an expression there that will -convey the exact idea that you desire. Now, in the matter of a work of -art, as long as it remains in the hands of the creator of it, one -would think it would not be necessary, but it was suggested to me by -the chairman here that even the maker of the work of art might want to -copyright it, although he did not intend to sell it; he would want to -prevent people from infringing on it. - -Mr. BETHUNE. Precisely. - -Senator MALLORY. And yet there would be no publication; he could keep -it in his own library. - -Mr. BETHUNE. He has the right to copyright it at any time he pleases, -before publication. - -Senator MALLORY. I know that; but the point is, What does the word -"publication" here mean? And I would like to know, if you have given -the thing any thought, if there is any suggestion you could make? - -Mr. BETHUNE. Yes, sir; I think the term "publication" should be -explained. I do not think we can define altogether what "publication" -is; but we can state that certain things shall be included within -"publication." - -Senator MALLORY. What is your suggestion? - -Mr. BETHUNE. I think that sale, whether a public or private sale of -the painting, and the public exhibition of the painting, should be -construed as a publication. - -Mr. WEBB. You suggest inserting after "original" "before publication, -exhibition, or offering for sale?" - -Mr. BETHUNE. No, sir; I should let "publication" stand there, but I -should qualify or partially define in another section what -"publication" is---- - -The CHAIRMAN. Is there not danger in making such definition? - -Mr. BETHUNE. No; I think not, if you state what it shall include, or -rather what shall be included in it. - -The CHAIRMAN. Suppose we define publication in the manner you suggest, -would there not be difficulty in cases not covered by that definition? - -Mr. BETHUNE. I think not, sir. - -The CHAIRMAN. Might not the courts construe that definition as -covering all classes of publications? - -Mr. BETHUNE. Not if the statute specifically states that those -expressions are not meant to be an exact definition of all that -publication includes, and I think that can be very easily done. - -The CHAIRMAN. We would be very glad to have your suggestion on that -point. - -Mr. BETHUNE. I should be very glad to submit it if you will be kind -enough to permit me to do so. - -There are some other matters which I do not care to take up your time -with now, and will do so in writing. - -Mr. CHANEY. Is your idea of expressing and defining "publication" for -the purpose of limiting the word "publication?" - -Mr. BETHUNE. Not altogether; no, sir. I think that both the reproducer -and the artist should know the exact situation at the very outset. If -the artist exhibits a painting in a gallery and people pay fifty cents -or nothing to go in and look at the painting, although there is a -restriction, perhaps, made by the artist upon copying that painting, -when the painting goes to that exhibition he should know at once, and -the reproducer should know, that that being a public exhibition is a -publication of the painting, and if the copyright notice is not on it -then the artist has lost entirely the right to copyright it entirely. - -Mr. CHANEY. You are aware of the fact that if you undertake to define -"publication" you do limit it to whatever you say it is? - -Mr. BETHUNE. I do if I attempt to fully define it, but I should not -attempt to so define it. I should attempt to say that certain things -should be embraced in the term "publication." - -Mr. CHANEY. Do you not thereby exclude everything else? - -Mr. BETHUNE. No, sir. - -Mr. PUTNAM. If Mr. Bethune will permit me, Mr. Chairman, the attention -of the committee may not have been called to the fact that there is a -definition of the date of publication where copies are reproduced for -sale or distribution. That is in section 63. It is limited to that -because, after discussion, the conference did not seem to be able, or -none of our advisers seemed to be able, to suggest a definition for -"publication" in the case of works of art, for instance, of which -copies are not reproduced. It seemed to those who were advising us a -dangerous thing to attempt. - -Mr. BETHUNE. I think it would be, and I would not undertake it, but I -think you will save trouble and expense to both the artists and the -reproducers if you will say that the sale, whether private or public, -and the public exhibition, shall be a publication of the painting. - -Mr. WEBB. That is what I asked you a while ago--if you did not think, -speaking of "publication" here, that it would be sufficient if you -were to let it read "public exhibition or offering the same for sale," -either public or private sale? - -Mr. BETHUNE. To be included in the term "publication." - -Mr. WEBB. But can you think of any other instance where publication -would mean something else than those things? - -Mr. BETHUNE. No; I can not for the moment, but I think there is -danger, as the chairman has just stated--there may be many things -which do not occur to me now, or would not occur to this committee, -which should be contained in a definition. - -Mr. WEBB. I think you would complicate it very much if you used the -word "publication" generally, and then undertook to define -"publication" also, and intended that "publication" should cover more -points than you specified. - -Mr. BETHUNE. Why, sir, this bill starts in and says that all the works -of an author may be copyrighted. It then specifies some of the things, -and it then says that the things specified are not all that may be -included. - -Mr. WEBB. I understand that; but you, a man who is expert in these -matters, can not state to us what other points would be covered than -public exhibition or offering the same for sale. - -Mr. BETHUNE. I am not a reproducer; I am a lawyer, and the reproducers -may be able to advise me. - -Mr. CHANEY. A lawyer is an originator always. [Laughter.] - -The CHAIRMAN. You spoke earlier in your remarks about the decisions of -courts on this subject. - -Mr. BETHUNE. Yes. - -The CHAIRMAN. And the lack of uniformity of the decisions relative to -publication. Is not that fact due to the conditions which you now -describe, and which have been suggested by different members of the -committee--because what may be publication in one copyrightable -article may not be publication in another? - -Mr. BETHUNE. Yes, sir. For that reason---- - -The CHAIRMAN. Now, then, if the courts, with this attempt to define -publication, have found difficulty and have differed, is it not -because of the different character of the articles that have been -involved in the litigation before the courts? - -Mr. BETHUNE. No; it is the same article that I have in mind. There is -one Massachusetts case, a Federal case, where, in the case of a public -exhibition of a painting, the circuit court of appeals in the first -district held that that was a publication of the painting. - -Mr. CAMPBELL. Was the exhibition given for hire, for profit? - -Mr. BETHUNE. Yes; my recollection is that it was a public exhibition -for hire. Subsequently another case---- - -Senator MALLORY. It held that that constituted publication? - -Mr. BETHUNE. That that constituted publication. - -Senator MALLORY. It did not define what publication was any more than -that? - -Mr. BETHUNE. No; it simply decided that that particular public -exhibition was a publication of the work. - -The CHAIRMAN. In other words, it decided that in that case special -acts constituted a publication? - -Mr. BETHUNE. Yes, sir. Now, the Federal courts in New York State have -held the contrary view in respect of a public exhibition of a painting -for hire (in the Workmeister cases). Those cases will probably go up -to the Supreme Court, but they may not. - -The CHAIRMAN. What was the argument or the reasoning of the court in -the latter decision? - -Mr. BETHUNE. The Massachusetts case was distinguished, if my memory is -correct, on the fine point that in one case there was a -reservation--in the one case the artist made some reservation in -respect of the use of the painting when he loaned it to the -exhibition, and in the other case he did not; but it is just those -fine points which we want to eliminate. - -Senator MALLORY. From what you say, I think it would be well for us to -avoid the word "publication" and state just what we want without using -the word "publication" at all, if we are going to give rise to diverse -decisions and litigation. I think we had better express it, perhaps, -in the language which you have--"after sale or exhibition for hire" -and "public exhibition." - -Mr. BETHUNE. Well, there you do limit it. - -Senator MALLORY. Just express it in those words. - -Mr. BETHUNE. There you do limit distinctly what would be, in effect, -publication, though you do not call it so, and that we do not want. - -The CHAIRMAN. We would be very glad if you would submit your proposed -amendment to the committee later. - -Mr. PUTNAM. Mr. Chairman, I understand that Mr. W. A. Livingstone, -representing certain reproducing interests, and Mr. McDonald, -representing the National Photographers' Copyright League, wish to -have a note recorded--not to argue a point, but simply to have a note -recorded in the minutes. - - -STATEMENT OF WILLIAM A. LIVINGSTONE, ESQ., OF DETROIT, MICH. - -Mr. LIVINGSTONE. Mr. Chairman, I simply wish to state two things in -contradiction of the last speaker. I stand here for a large -reproductive interest, and consequently we are speaking also from the -standpoint of the reproducer. We dissent very strongly from his -opinion and we support the bill in respect to notice as it now is. - -That is all we wish to say now. - -Mr. WEBB. You want the word "accessible" kept in just as it is now? - -Mr. LIVINGSTONE. Yes, sir. - -Mr. WEBB. What do you understand that to mean? - -Mr. LIVINGSTONE. I understand that to imply that that notice must be -easily get-at-able in the painting or other object. - -Mr. WEBB. Well, "accessible" means "get-at-able." - -Mr. LIVINGSTONE. Yes, sir. - -Mr. WEBB. But you have not got "easily accessible" in here. You have -got "accessible," simply, whether with difficulty or whether with -ease. - -Mr. LIVINGSTONE. In the case of a painting or work of art it is very -easy--you can hardly conceive of a case where, if the notice is -accessible at all, it can not be obtained. - -Mr. WEBB. Well, why should you object to the word -"uncovered"--"accessible and uncovered?" - -Mr. LIVINGSTONE. Because if you include the word "uncovered" you then -impose some other conditions which are the result of that term, as, -for example, you may compel the notice to be on the face. I will give -a concrete illustration that is easily understood. Suppose you have a -very small miniature which is very delicately painted. You can not put -that notice across the face of the miniature, and yet you can take the -miniature in your hands and turn it over and find the notice in an -accessible place with ease. - -Mr. WEBB. Do you think, though, that "accessible and uncovered" means -putting it on the front of the painting or photograph? Could it not be -on the back and be still uncovered on the back? - -Mr. LIVINGSTONE. The painting may be hanging on the wall. - -Mr. WEBB. It would still be uncovered. - -Mr. LIVINGSTONE. Oh, not necessarily; no, sir. - -Mr. WEBB. As far as the painting itself is concerned, I do not know -why you all quibble between "accessible" and "uncovered," and I did -not know what was the real difficulty between you on this word -"accessible." The word "visible" has been suggested. - -Mr. LIVINGSTONE. Another case would be this: In certain kinds of -sculptures you could not possibly put that notice upon the face of the -sculpture without a serious marring of it, without a serious -impairment of its commercial value. The law even now takes cognizance -of this, and permits you, in those cases, to put it on the bottom or -on the back. It may not necessarily be uncovered, but it is -accessible. - - -STATEMENT OF PIRIE MACDONALD, ESQ., OF THE PHOTOGRAPHERS' COPYRIGHT -LEAGUE. - -Mr. PIRIE MACDONALD. We wish to stand for the word "accessible" as it -has been evolved by the Librarian, and we would wish that in case the -word "uncovered" is used it be very strictly defined; that it be -defined as to when this picture should be uncovered. If, for -example--and remember, please, that I am speaking merely for -photographers, and not as a reproductionist--suppose I were to make a -photograph of someone, and were to properly and duly mark it with the -notice as prescribed by law (for example, a photograph of yourself), -and you were to decide that you objected to the notice as being a -defacement, and you were to take it on yourself not to take the notice -from the picture (because that would be prevented by the proposed law) -but to cover it up. It is your property, unquestionably; and it gets -to the hand of a reproducer and he says, "This is not uncovered." -Therefore I suggest that in case by any chance the word "uncovered" is -used, it be very strictly defined. - -Mr. PUTNAM. Mr. Chairman, there are a great many people here who are -interested in behalf of the provisions in the bill proposing -protection against the mechanical devices for the reproduction of -music to the ear. There are many here who are opposed to the -provisions of the bill, and those who are its proponents are in favor -of them. They are, of course, very desirous to near the arguments -advanced by those who are against them, and, if it be your pleasure, I -would suggest that it would be only fair to hear from the opponents of -those provisions as soon as possible. I have called as many as I knew -of the participants in the conference who cared to say anything at -this stage in favor of the bill. One additional participant to those -who have spoken, representing the directory publishers--I think that -association is not here--states, in a letter: - - I take this opportunity to say that our association fully indorses - the bill as presented to Congress, with the single exception of the - final paragraph of section 13. - -That is the paragraph requiring that in the affidavit as to -manufacture the place in which the work was done and the establishment -shall be specified. I simply ask that that go into the record as -coming from the American Directory Publishers. - -The CHAIRMAN. What reason is given for that request? - -Mr. PUTNAM. I understand the reason to be that it would be an undue -burden upon the publishers. - -The CHAIRMAN. In what respect? - -Mr. PUTNAM. I think perhaps the publishers ought to answer that. It is -a specification on which they alleged to the conferences might be -inconvenient and difficult in some cases. In the case of directories, -the directory publishers said that they were in the habit of having -their work done at a great many establishments. Of our general legal -advisers, as you have asked me, I feel that I ought to state this: The -chairman of the advisory committee of the American Bar Association is -not here to state it himself, as he stated it to us: but he was of the -opinion that it was not relevant to the affidavit. But I do not see -that at this point, sir, this question can be discussed, because the -persons who are opposed to this provision are not fully represented -here. - -Of those on the list of participants that cared to be heard at this -point I know of no others, except that Mr. Sullivan, who represents -the International Typographical Union, not caring to make any argument -or statement, but possibly caring to do so later, if he may, would -like to say just a word in behalf of the general principles of the -bill, or on behalf of the bill as a whole--the feeling of the -Typographical Union as to the bill. - - -STATEMENT OF J. J. SULLIVAN, ESQ., REPRESENTING THE INTERNATIONAL -TYPOGRAPHICAL UNION. - -Mr. SULLIVAN. Senators and Representatives, I do not desire to take up -any of your time just at this hour, as there are many gentlemen here -from out of town who wish to be heard before the committee. I -therefore desire to be heard at some future time, as I understand you -will have a session of this committee to-morrow; and on behalf of the -organization, the International Typographical Union, which I have the -honor to represent, I particularly protest against any modification of -section 13, known as the manufacturing clause of the copyright law. - -Mr. CHANEY. Is that in this bill or the present law? - -Mr. CURRIER. This bill. - -Mr. SULLIVAN. I refer to section 13, known as the manufacturing clause -of the old act and copied in the new one. Speaking also on behalf of -my associates from New York, representing 7,500 typographers, we -protest against any modification of this law. - -Mr. PUTNAM. You must make it clear whether you refer to this bill or -to the existing law. Are you satisfied with the bill? - -Mr. SULLIVAN. I refer to the revised bill. - -Mr. PUTNAM. You are satisfied with the bill as it stands? - -Mr. SULLIVAN. The Senate bill. - -Mr. CURRIER. You are referring simply to section 13? - -Mr. SULLIVAN. Section 13; yes. That is, the old section. - -The CHAIRMAN. Do you approve in all respects the bill as introduced in -the Senate and House? - -Mr. SULLIVAN. No, Senator; I respectfully beg to differ in this -respect--that either through inadvertence or slight mistake in the -draft of the bill that has been submitted to the Representatives -taking part in these conferences there are six lines bracketed. - -Mr. PUTNAM. They are not bracketed in the official bill. They were -left out of the bill as introduced. - -Mr. SULLIVAN. I respectfully request that section 13 of the bill as -presented to the Representatives taking part in the conferences here -be revised in the Senate bill so as to include the paragraph that is -bracketed in the draft of the bill sent out to the delegates. - -Mr. PUTNAM. Well, Mr. Sullivan, I want you to be clear about this. The -bill as introduced into Congress did not contain those brackets. That -was a draft sent out some time ago, and the bill as introduced in -Congress has not those brackets. - -Mr. SULLIVAN. (after examining the official copy of the bill). That is -on page 9; that is all right. - -Mr. CURRIER. It is right as it is, as we understand? - -Mr. SULLIVAN. It is right as it is. That is all right, then; we have -no objection, Senator, to the bill as it stands. I only wish to say at -this time that that bill has already passed the lower branch of -Congress. - -Mr. CURRIER. You refer to section 13? - -Mr. SULLIVAN. Yes, sir; and Representative Currier knows it has also -passed his committee. We respectfully submit the resolution to your -hands, and I desire to be heard on it to-morrow. - -Mr. PUTNAM. Mr. Chairman, with your permission Mr. G. Howlett Davis, -of New York, desires to be heard as representing inventors who have -allied themselves particularly to these devices for the reproduction -of music to the ear. Mr. Davis's suggestion was that as the composers -had been heard as the creators of the music in the first instance, one -who is engaged as an inventor in the production of these devices -should first be heard on the other side. - -Mr. S. T. CAMERON. May it please the committee, Mr. Chairman, I am one -of those who are representing the interests of the talking machines of -the country. - -The CHAIRMAN. Whom do you represent? - -Mr. CAMERON. I represent the American Graphophone Company of New York. - -The CHAIRMAN. Do you desire to be heard by the committee? - -Mr. CAMERON. Yes, sir. I wish to say at this point, however, sir, that -with all due respect to the Librarian, it would seem to me that there -is no good reason existing why he should depart from the mode of -procedure in connection with these talking machines that has been -taken in all the rest of the bill--that is, that those who are the -proponents for the changes in this bill that are of a very radical -nature and very radically different from existing law should present -to the committee their reasons for such changes, before hearing from -the opponents of the bill. - -Mr. PUTNAM. I had no intention, Mr. Chairman, of departing from that -mode of procedure. I understood that two gentlemen in behalf of these -provisions had been heard, Mr. Sousa and Mr. Herbert; and I had also -been informed that the other interests, including those of the -publishers, did not care to be heard at this point; they were content -to have the provision before you as the affirmative. I desire now that -the opponents of the bill should have the fullest opportunity, at the -earliest possible moment, to present their views to the committee. The -opponents have not advised me as to whether they had agreed upon any -method of presenting their case. I simply had this suggestion from Mr. -Davis which I laid before you, and the fact that Mr. O'Connell, -representing ten manufacturers of automatic piano players, also wishes -to be heard. - -Mr. PAUL H. CROMELIN. Mr. Chairman, as the representative of the -Columbia Phonograph Company, I should like to know whether it is the -purpose of this committee to sit to-morrow. I had promised certain -gentlemen in New York City to telephone them between half after 12 -to-day and 1 o'clock, so that they can leave on the Congressional -Limited and be here to-morrow, if it is your intention to-morrow to -hear the opponents of this bill. - -The CHAIRMAN (after consultation with other members of the committee). -We will meet to-morrow morning at 10 o'clock. - -Mr. CROMELIN. And may I ask also, Mr. Chairman, if it is your -intention to continue these proceedings this afternoon? - -The CHAIRMAN. We will continue this session until about half past 1. - -Mr. CROMELIN. Thank you very much. - -Mr. ALBERT H. WALKER. Mr. Chairman, I wish to inquire whether the -committee is willing to sit also on Saturday to continue the hearings? - -The CHAIRMAN (after further consultation). It is the purpose of the -committee, if possible, to finish its hearings to-morrow. - -Mr. WALKER. I wish to suggest to the committee that this bill is -incomparably the most important measure that has been before any -Committee on Patents of either House of the American Congress at any -time since the civil war, and I think it is the most important measure -that ever was before any Committee on Patents of the American Congress -since the enactment of the patent law in 1836. - -The CHAIRMAN. It is not the purpose of the committee to deprive anyone -who desires a hearing of that privilege. On the contrary, the -committee will sit so long as anyone desires to be heard, within any -sort of reason. - -Mr. WALKER. If the Senator will permit me one moment, I am prepared -and have been preparing myself through a rather long lifetime to -elucidate the subject of copyright law; and I appear before the -committee in the interests of the American people and also in the -interests of the authors. - -The CHAIRMAN. How much time do you wish, Mr. Walker? - -Mr. WALKER. I wish at least two hours, and I can take it at any time -at the convenience of the committee, at any day. - -The CHAIRMAN (after further consultation with the other members of the -committee). We will hear you, Mr. Walker, one hour to-morrow morning, -if we are unable to reach you to-day, with the privilege of submitting -in writing your views if you so desire. - -Mr. WALKER. If the chairman will allow me to make the suggestion, if I -were to be heard to-morrow for an hour, that would probably cut off -other gentlemen who would wish to speak much shorter than that, and it -would be very convenient for me, if the committee is to sit at all on -Saturday, to hear other gentlemen on Friday and let me speak on -Saturday. - -The CHAIRMAN. If we are compelled to hold a session on Saturday, we -will hear you on that day; but we hope that the gentlemen who are -present to present their views to the committee will finish in such -time as will permit you to have your hour to-morrow morning. - -Mr. WALKER. Then, is it understood that I am to speak first to-morrow -morning? - -The CHAIRMAN. I think not. - -Mr. CURRIER. There are some other gentlemen here who will want five or -ten minutes. - -The CHAIRMAN. Inasmuch as you prefer to go over until Saturday, if -convenient to the committee, I should think that the members from out -of town and the other gentlemen here should be first to address the -committee. - -Mr. WALKER. That is very agreeable to me. - -Mr. SOUSA. I sincerely trust, Mr. Chairman, that in Mr. Walker's -discussion it will not be permitted to discuss the copyright of the -past. We are not after that. We want a copyright of the future. If he -will talk about things that will be for the benefit of the future, I -think you should give him the time; but if he is going into a -discussion of what was done a hundred or two hundred or three hundred -years ago, we do not want it. [Laughter.] That is the past; we want -the future. - -Mr. CROMELIN. Mr. Chairman, I would like to give notice, as the -representative of the Columbia Phonograph Company, representing large -interests which are vitally affected by this bill; as the -representative of a company which knew nothing of this proposed -legislation before the publication took place on the 31st of May; as -the representative of a company that was not invited to take part in -the so-called conferences, notwithstanding the fact that its industry -is so broad that it embraces the world, that I would like to be heard, -and that it will probably take at least one hour or two hours to -present this subject in all of its ramifications to your committee. It -was my understanding that the committee would adjourn to-day at 12 or -1 o'clock, and in view of the fact that the opponents of this measure -have had to come together quickly, and that they have had no time to -organize, while on the other hand those who are proposing it have had -conferences for more than one year, I propose, sir, that it would be -meet and proper at this time to adjourn this conference until -to-morrow morning, giving the opponents of the measure a chance to -decide upon a plan of action for presenting this matter to your -committee, and that we will come here to-morrow morning and present -the various views of those who are interested. - -I therefore suggest the advisability of a postponement until to-morrow -morning or an adjournment. - -The CHAIRMAN. Do I understand that all the opponents of the provisions -of this law relative to talking-machine devices can be heard within -one hour? - -Mr. CROMELIN. No, sir. I speak on behalf of myself, for my own -industry only. There are others---- - -The CHAIRMAN. How many desire a hearing? - -Mr. CROMELIN. I believe that there are at least a half a dozen -gentlemen who desire a hearing. - -The CHAIRMAN. Does each want one hour? - -Mr. CROMELIN. I do not know how long it will take them to present -their views. - -The CHAIRMAN. We established a rule at the beginning of the hearings -yesterday limiting the statements to ten minutes each. - -Mr. CROMELIN. I understood, Mr. Chairman, that that was in regard to -the proponents of the measure. I did not understand that you intended -to limit those persons whose interests are vitally affected by this -measure to ten minutes to reply. I do not believe that is the -intention of this committee; and I submit the question to the -honorable chairman. - -Mr. CHANEY. Mr. Chairman, it is entirely out of all reason to expect -us to remember what these gentlemen will say. We will want a good deal -of it in typewriting anyhow; and they can simply give a synopsis of an -argument here as to what they want to do, and we must expect them to -submit to the committee in writing for our use such matters as they -seem to think important for our consideration when we are giving the -bill consideration. They do not need so long a time to make a speech -here. Let them prepare their matter and hand it in. - -Mr. CROMELIN. Mr. Chairman, we hope to file briefs in addition to the -oral statements. - -Mr. CURRIER. As far as the House committee is concerned there is no -expectation that there will be a report of this bill at this session -of the Congress. - -Mr. CROMELIN. Will the gentleman be good enough to state that -positively on behalf of the committee, so that the interests that -ought to be represented here to-day, and whose representatives must -remain away, can be satisfied on that point? - -Mr. CURRIER. I can state it most positively, as far as the House is -concerned. - -Mr. CROMELIN. I thank you very much. - -The CHAIRMAN. And the same is true so far as the Senate is concerned. - -Mr. CROMELIN. I thank you very much. We have endeavored to get that -information from the Librarian, and he stated yesterday that it was -highly improbable, but he could not state---- - -Mr. PUTNAM. Mr. Cromelin, if you will excuse me, I said that I had no -right to give any such prophecy on the part of the committee; it was -not within my control. You will do me the justice to say, Mr. -Cromelin, that I added that when the copyright office asked for this -bill to be introduced it had no expectation itself of any possibility -of its being reported at this session. - -Mr. CROMELIN. Thank you very much for the information I have gotten -from the Librarian and from the chairmen of the respective committees. -That assures us on the point, for the first time, that this bill will -not be reported at this session of Congress. - -(After a consultation between the members of the committees:) - -The CHAIRMAN. The committee has decided that it will hear some -representative of all these interests, if they shall so desire, not -exceeding an hour, with the same permission to supply in writing such -matter as they may desire, as was given to Mr. Walker. I might add -that it seems to us that the representatives of these interests can -state concisely in that time their objections to the bill as -introduced in the Senate and House, leaving the details to be supplied -in writing, as I have suggested. It does not seem necessary to us, -unless it is desired by these representatives, to have each gentleman -representing each manufactory make a speech to this committee. We -think that it will be giving you all a fair opportunity to be heard to -comply with the suggestion that has been made. - -Mr. WEBB. The interests are about the same. - -The CHAIRMAN. The interests are precisely the same, as I understand -it, so that the objections must be along the same line. - -Mr. CROMELIN. Mr. Chairman, may I merely state that as regards sound -records as understood by a phonograph record, a graphophone record, or -a telegraphonic record, the interests may not be the same. We are -standing together against the whole measure; but it must be fully -understood that in so far as relates to the reproduction of sounds -previously produced, there may be a distinction between a -sound-producing machine and a sound-reproducing machine. - -The CHAIRMAN. We think that those distinctions can be very well -brought out in your written communications to the committee. - -Mr. JOHN J. O'CONNELL. Mr. Chairman, perhaps if the suggestion of Mr. -Cromelin were complied with--that is, that a recess be taken until -to-morrow morning at 10 o'clock--the various interests covering the -music rolls and the phonographic records could get together and decide -how to present their views to this committee, and in that way save -time; and afterwards each could enlarge in his written brief on the -points which he wishes to make. - -Mr. CHANEY. That is so as to that particular thing, but if there is -someone who wishes to be heard on some other point, why not hear him -now? - -The CHAIRMAN. We will postpone this question until to-morrow morning, -and we will hope to finish that branch of the case, as well as the -argument of Mr. Walker, to-morrow morning from 10 until 12. - -Mr. O'CONNELL. As I stated to the chairman, the only thing in which my -clients are interested is the music rolls, and that is the only -question I personally wish to present to this committee. Perhaps the -same question may be embraced in the points to be raised by the -phonographic record people as well. - -The CHAIRMAN. And I will say to you and the other gentlemen who are -interested that you can divide that hour between yourselves as you may -please, or you can select some representative to take the entire hour. - -Mr. CURRIER. Mr. Remich, of New Hampshire, is here, and wishes to be -heard briefly on another section of the bill. - - -STATEMENT OF DANIEL O. REMICH, ESQ., OF LITTLETON, N.H. - -Mr. REMICH. Mr. Chairman, I appear here to-day in behalf of the -stereoscopic view manufacturers of the country. There are at least -twelve large manufacturers of this description of views. There may be -some that are not familiar with that class of view; it is the double -view that you look at through the stereoscope. The firm to which I -belong is the founder of this business, D. W. Kilburn & Co., of -Littleton, N.H., in the White Mountains. There are, as I say, now -twelve large concerns, which are competitors. I appear here in behalf -of the stereoscopic view manufacturers, who approve of this bill, -except one provision, and that is the provision as to the copyright -fee. - -Mr. CURRIER. What section is that, Mr. Remich? - -Mr. REMICH. That is section 60. You will notice that under the old law -the fee for copyrighting was 50 cents. The fee is now made a dollar, -which advances that expense upon our industry 100 per cent. - -Inasmuch as the report of the office shows that there is a good -handsome surplus of cash received, more than enough to pay for all the -expense of maintaining the Copyright Office, and in addition to that -some 213,000 objects, which the Librarian says are of great value to -the Nation--books, paintings, etc.--and in view of the small profit in -the manufacture of our goods, and the fact that in the conduct of our -business we have to make long-term contracts with general agents who -handle our goods, selling them over the entire world, and that our -contracts have been made for a long term of years, this 100 per cent -advance upon our class of goods would practically put us out of -business. - -Mr. CHANEY. Suppose we except those views? - -Mr. REMICH. I have no objection to that. You will see that they have -tried to modify this provision somewhat by a section at the bottom of -the twenty-fifth page of the conference report, in which they say---- - -Mr. CURRIER. The thirty-eighth page of the bill, gentlemen. - -Mr. REMICH. The thirty-eighth page of the bill, in which they say: - - _Provided further_, That only one registration at one fee shall be - required in the case of several volumes of the same book or - periodical deposited at the same time, or of a numbered series of - any work specified in subsections H, J, K, and L of section 5 of - this act-- - -Which includes our class of products-- - - where such series represents the same subject with variances only - in pose or composition, and the items composing it are deposited at - the same time under one title with a view to a single registration. - -As a lawyer, I suggest that would inject a dangerous element into our -business, if we tried to copyright a series of pictures which we -claimed only differed from each other in pose, and we should have more -litigation on our hands in a month than you could shake a stick at. It -would ruin any stereoscopic view concern in a little while. - -As I suggested in our conference, that clause would apply -satisfactorily to gallery work where a man, for instance, took my -distinguished friend, the Representative from my district, Mr. -Currier, in a gallery, and took a side view, a front view, a view -standing up, a view sitting down, a view with his chin turned up, and -a view with his nose turned out. In such a case there would be no -change save in pose. But we send artists all over the world. We had an -artist in the Japanese army during this war, and with the Russian -army, and in the South African war, and in Cuba, and in the Boxer war. -Our negatives are largely snapshots of moving objects and things. We -may get one distinguished general in one snapshot, the next negative -we make will show another distinguished general. - -If we go to a great parade to make negatives, as we did at the Czar's -coronation in Russia, we are liable to get more than 500 different -negatives, and they all differ in something besides pose and -composition. You will see that a clause of that kind will make it -absolutely impossible for us to take advantage of it, although any -gallery artist could take advantage of it with success and safety. - -The CHAIRMAN. Have you the form of an amendment which you propose? - -Mr. REMICH. No. I have not framed any amendment. An exemption of the -stereoscopic manufacturers from the $1 fee would be perfectly -satisfactory to us. - -Mr. CURRIER. Not the exclusion of the entire fee? You do not mean -that? - -Mr. REMICH. Not at all; we are perfectly willing to pay our 50-cent -fee, although it amounts to a tremendous sum in our business, because -we take so many negatives. To show the extent of our business, permit -me to say that we have over 17,000 different subjects in stock ready -for delivery. We have over 160,000 different negatives at the present -time, and are importing them constantly and making them in this -country. - -The CHAIRMAN. The reason I asked the question was because the language -here indicates that the exception you propose should be inserted with -much care. - -Mr. REMICH. Yes. - -The CHAIRMAN. And I will be glad if you will draw your proposed -amendment and insert it in the record. - -Mr. REMICH. It seems to me it is going to be a difficult thing to make -an exception. What is the necessity of an advance in the fee? Why is -there any necessity for a change of the fee when in England, as I -understand it, they charge only a shilling for doing this work, which -is one-half of what we pay, and when, in point of fact, we are getting -a handsome surplus--as the report of the copyright office shows, over -$130,000 profit in the last six years? The office is not intended as a -revenue producer. It is simply designed to protect the manufacturing -interests of the country by copyright. - -Of course to the man who is producing a painting or a valuable book -which he may sell and obtain in royalties $50,000 on, it does not make -any difference. Some men have told me they do not care; they wish the -copyright fee could be $75, because larger fees for copyrighting would -tend to keep out a lot of fellows. But we have a great big industry -which is employing a large number of people which would be ruined by -these additional charges. - -The CHAIRMAN. Your suggestion, then, is to reduce the fee prescribed -in section 60 from $1 to 50 cents? - -Mr. REMICH. Yes; leave it exactly as it is now; yes, sir. - -The CHAIRMAN. Were you present at the hearing yesterday? - -Mr. REMICH. I was not present; no. - -The CHAIRMAN. Mr. Putnam commented upon the situation, stating that -the fee under existing law was 50 cents, and the fee for certification -was 50 cents, and the only difference between the existing law and -this bill upon that subject is that in all cases a certificate is to -be issued, making the entire fee $1. - -Mr. REMICH. You can see the effect of that. In my experience in -connection with the view business, for twenty years, we have had -occasion to get but five certificates. Think of that. We have paid -$2.50 in the whole time, whereas under this bill we shall be compelled -to take a certificate at an expense of half a dollar with every -negative that we copyright, whether we want it or not. - -Mr. CHANEY. How many times have you gotten certificates now? - -Mr. REMICH. I say, that in all my experience with the view -business--and I have been connected with it ever since I married Mr. -Kilbourn's daughter and went into the firm in 1890, sixteen years -ago--we have had only five certificates. - -Mr. CHANEY. What is the object of your having those certificates? - -Mr. REMICH. We took them simply because we had a few views pirated, -and in the litigation we wanted to show the fact that they were -legally copyrighted by a certificate from the office. But this law is -going to compel us to take out thousands of certificates that will be -of no earthly use to us. This extra expense will practically drive us -out of business. This is no "pipe dream," but an absolute fact. - -Senator MALLORY. You do not object to the 50 cents for the fee and 50 -cents more for the certificate? - -Mr. REMICH. Not at all; only we do not want to be compelled to pay -half a dollar each for thousands and thousands of certificates that -are of no earthly use to us. - -Mr. CHANEY. I take it that the purpose of this law is to provide a -notice in some form or other for everything, and this is in that -nature. - -Mr. CURRIER. No; this is not in the nature of a notice. This -certificate gives no notice to the public. - -Mr. REMICH. They would have to come here and dig out the records if -they wanted to find out about that. The only argument that I have -heard in favor of this suggestion is that it will diminish the amount -of work that will have to be done in the copyright office. If they can -make one certificate cover twenty views or twenty-five views or a -hundred views, they will not have to make so many certificates. Is -there any good reason why my business should be ruined to accomplish -such a result when there are plenty of people that want to work in the -office and when the present revenues are amply sufficient to pay for -all the work done? In my town we are exempting property from taxation -and offering big financial inducements to bring manufacturing -interests into our town, because they are going to employ more labor. -I do not suppose Washington has reached the point where it has so much -population that it does not want more men and women employed in -Washington, performing honest day labor and earning good money to be -expended in the city. - -Senator MALLORY. What is the reason assigned for uniting these two -fees in one; do you know? - -Mr. REMICH. I was not here, and I did not hear the reasons. - -Senator MALLORY. I was not here, either, so I do not know. - -Mr. PUTNAM. For the benefit of the Senator I might explain that the -idea was this, Senator: That the office will hereafter furnish the -certificate in all cases as a matter of course, which heretofore has -been furnished only when requested; and that in furnishing it it -should charge for it as heretofore, making the charge therefor $1. - -Senator MALLORY. Still, the certificate is not necessary except where -it is desired to prove the fact that the copyright has been secured. - -Mr. PUTNAM. It was with the idea that it was a precaution that the -copyright proprietor ought in reason to take. - -Senator MALLORY. I have no doubt that there are many persons situated -as this gentleman is who do not want any certificate except in very -rare cases. - -Mr. REMICH. That is right. - -The CHAIRMAN. To what extent do you now issue certificates? - -Mr. PUTNAM. Mr. Register, to what extent is that done? - -Mr. SOLBERG. For last year the total of registrations numbered -116,000, and of those 28,087 were certificates. - -Mr. REMICH. That is about one-fifth. - -Mr. SOLBERG. It should be remembered that requests for certificates -additional to the certificate paid for at the time of registration are -constant, and in addition to fees submitted to secure certificates, -constant inquiry is made of the Copyright Office and answered at some -service cost as to what entries have been made by particular firms. -They ask us "just what entries did we make in May last?" - -The CHAIRMAN. What were the gross receipts of the Copyright Office for -the last fiscal year? - -Mr. SOLBERG. The receipts--this is for the calendar year, Senator, -those being the latest figures which I have. - -The CHAIRMAN. Very well. - -Mr. SOLBERG. The fees for the total calendar year were $78,518, of -which the certificate fees were $14,043. - -The CHAIRMAN. What are the expenses of the office? - -Mr. SOLBERG. The total expenses of the office can not be given. The -comparison given here is between the appropriations for service only, -and I could give you that for the year. - -Mr. PUTNAM. That is for the fiscal year. In this case we have had to -take the last fiscal year, with your permission. - -The CHAIRMAN. Yes, sir. - -Mr. SOLBERG. The fees for the fiscal year ending June 30, 1905, were -$78,058. The appropriations for service during the same period were -$74,662.46--the appropriation expended for service, but the only -element covered is service cost. It does not cover printing, -stationery, or any supplies, nor the printing of the catalogue of -entries, which include all registrations made at any fee, even if no -certificate is paid for. That is estimated at $25,000 per year--the -printer's estimate for printing. If that is included with all other -expenses, the fees do not cover the total expenses of running the -office. - -Mr. CHANEY. By how much? - -Mr. SOLBERG. I have not been able to ascertain the exact figures for -printing, but I should suppose that the balance might be some -thousands of dollars against the office. - -The CHAIRMAN. You have some figures, Mr. Remich; you made some -statement earlier in your remarks upon that subject. - -Mr. REMICH. Yes, sir. I took this leaf from the report, and I will -read it. This is the last year's report of the office: - - The earned fees paid into the Treasury for the year ($78,518) - exceeded the amount expended for salaries, which was $74,600.37. - The additional expenditures during the year for stationery and - other supplies can not at this date be obtained from the chief - clerk of the Library, but for the first six months of the year they - amounted to but $309.63, and the year's contingent expenditures, - therefore, should be under $1,000. The yearly average for the last - five years has been $954.29. - -Then they say: - - The appropriations for 1901, 1902, 1903, 1904, 1905, and the first - half of the fiscal year 1906 include the sum of $25,740, to be - used in bringing up the arrears of work prior to July 1, 1897, - which amount should therefore be deducted from the total sum for - appropriations for service as not properly a charge upon the - current work of the office, leaving the excess of fees earned over - appropriations used for service $125,675.39 for the eight and - one-half years. - - The copyright fees are not, however, the most valuable assets of - the office. During the year the articles deposited and credited - numbered 213,498 articles. This large deposit of books, - periodicals, maps, music, engravings, photographs, etc., includes - many articles of considerable value which the Library of Congress - would otherwise be required to purchase, and these articles - therefore represent an annual acquisition of property to the value - of many thousands of dollars. - -Mr. CHANEY. But they do not produce any money. - -Mr. REMICH. They do not produce any money--that is so; but they save -you making an appropriation. This saves the Appropriations Committees -of both House and Senate from appropriating money each year to buy -these things that you would otherwise have to buy to place upon the -shelves of the Library. Now, I want to do my share, and I want my -business to do its share, toward supporting this Government. But I do -not think, in view of this report, that there is any good reason why -this great, rich Government should place this increased burden upon -our industry. - -Mr. CHANEY. Do you not argue unfairly when you undertake to bring in -the Library as against the proposition? - -Mr. REMICH. I am not trying to bring in the Library as against the -proposition. Every author has to file two copies of his book, and they -are placed in the Library. I say that if they did not do that, Mr. -Putnam, the Librarian, would have to take money out of his -appropriation and buy these books. I should suppose that that would be -so. Otherwise he would not say that they were of great value. I am -willing, if they want to make a certificate of every view we have and -send to us, for any convenience of the office, to take them; but to -force us to pay for thousands and thousands of certificates, which -will make it impossible for us to make a profit in the manufacture of -our goods at the close margin under which the business is conducted -under our contracts, would be a hardship, and I do not believe you -want to drive us out of business in that way. - -Mr. CHANEY. We certainly do not want to drive you out of business. - -Mr. REMICH. It seems to me that it would have that effect. - -Mr. CHANEY. But I take it that the Librarian's purpose was to try to -make this thing pay its way. - -Mr. REMICH. I have no doubt about that. Mr. Putnam and Mr. Solberg -have told me that by this consolidation of subjects many certificates -could be saved. I should be glad to comply with their suggestion if -our business was of such a character that we could do this series -work; but you can see the difficulties. - -Mr. PUTNAM. We want to be as clear as possible, and to meet this -difficulty. Let me ask you this: Do you not do any series work, or is -it only that you do not do work in a series under this limitation as -to pose or composition? - -Mr. REMICH. We do not do that class of work. - -Mr. PUTNAM. If the words "only in pose or composition" were stricken -out, would there be a material reduction in your fees? In the first -place, it seems to me that it would be convenient for us to know--how -many copyright entries do you make in the course of a year? - -Mr. REMICH. I can not tell. - -Mr. PUTNAM. Have you any idea? - -Mr. REMICH. It varies with different years. - -Mr. PUTNAM. Would it run up into thousands? - -Mr. REMICH. Some years I think it does. - -Mr. PUTNAM. If you were privileged to register under one fee works in -a series---- - -Mr. REMICH. But what would be a "series?" That is the question. - -Mr. CURRIER. Representing the same subject. - -Mr. PUTNAM. Representing the same subject under the same title with -only slight variances, but not the variances described here as "only -in pose or composition." What we would like to know is, would it -enable you to enter a great many of these articles under one fee that -you now enter separately? - -Mr. REMICH. That depends upon what you call the same subject. - -Mr. CURRIER. Is seems to me that you would have to introduce the word -"general;" that is, make it read "the same general subject." - -Mr. REMICH. If you introduce that who will decide what is the same -general subject, except the courts? It would encourage law suits. - -The CHAIRMAN. It would be the Librarian, would it not? - -Mr. REMICH. His decision would not be final. The law says we can go to -the courts and test his construction. - -The CHAIRMAN. It would be the Librarian, so far as your fees were -concerned? - -Mr. REMICH. Yes; but we do not want to pay a fee unless it is to be -registered in such a way that the court will hold that we have a legal -registration. We have an artist in San Francisco; and if we could -register under one entry all the views that he will take in San -Francisco while he is there, which will probably be 500 different -subjects, for half a dollar, we would like to do it. But what subjects -that he takes in San Francisco can we include as a series and have -protected? He will take the Pacific Hotel, showing its ruin and -present condition, and he may take a Chinese camp, and he may take the -Flood Building, and so on. How many can we get into a series and have -the court protect us when we come to try a case? That is the -difficulty. - -Suppose this said you shall enter under a series all churches in -Paris--under one entry fee, for 50 cents--that we may enter all -negatives that we take of churches there. How will you describe it in -your entry upon the book? Suppose we go to Rome, where they have 365 -Catholic churches; they are not grouped in any way; we can not pose -them. How will you describe the 365 views? Will you describe them as -365 views of the churches of Rome, or will you specify them under one -head? You can see the difficulties, gentlemen. - -Mr. PUTNAM. Do you not publish those in series for selling purposes -sometimes? - -Mr. REMICH. No. In selling we do this: We have a pictorial -illustration of the Holy Land. It includes perhaps fifty pictures, but -it covers the whole of the Holy Land. One is taken in Jerusalem, one -in Jaffa, and one at Damascus, for instance. We should be glad to -comply with any law that will protect us and not inject doubts into -our business and encourage piracy. - -Mr. CURRIER. Mr. Webb desires to know if this amendment would take -care of your matter: "Insert after 'seal,' in line 6, page 37, the -words 'provided only 50 cents shall be charged for each stereoscopic -view filed and registered.'" - -Mr. REMICH. That is all right. And if we want a certificate in our -business, we will come and, as the old lady said, "heave down our 50 -cents and get it." - -Mr. PUTNAM. "_Provided_, That in the case of stereoscopic views the -certificate should not be furnished unless required, and in that case -the fee shall be," etc. - -Mr. CURRIER. And in such case no certificate shall be issued unless -the regular fee is paid. - -Mr. REMICH. That is perfectly satisfactory; but any attempt to define -by series is sure to be unsatisfactory. - -Mr. CURRIER. I think you may be right about this matter of series. - - -STATEMENT OF A. BELL MALCOMSON, ESQ. - -Mr. MALCOMSON. I intend, Mr. Chairman, to be brief. The remarks that I -shall make are pertinent more to correct the law so as to make it more -definite than for any other purpose. I have prepared a short statement -of just what the changes I propose are. The matter is one relating to -lithographs. I represent Mr. McLaughlin, or McLaughlin Brothers, who -are probably the largest lithographers in the country. Mr. McLaughlin -has spent millions in perfecting that art in this country. He, -unfortunately, is abroad at the present time, and has asked me to be -here to represent him. - -Lithographs have always been mentioned in the former copyright bills. -A lithograph is something different from any other production of a -picture or of any pictorial illustration. But in this case it has been -thought by the framers of the bill that the words "print or pictorial -illustration" would cover lithographs. - -The CHAIRMAN. Please refer to the section of the bill that you wish to -call attention to. - -Mr. MALCOMSON. I am referring to page 4, line 4. - -Mr. CHANEY. "Prints and pictorial illustrations?" - -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 assumed, however, that these will be -included under the more general terms as prints and pictorial -illustrations;" 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 illustrations 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 association, 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 illustration. - -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 pass 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 illustrations produced by - lithographic process within a printed book consisting of text and - illustrations, 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 illustration 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. - -Mr. PUTNAM. Can you tell us whether in case the word "lithograph" is -put in there, it might be necessary to put in the words "etching" and -"engraving?" - -Mr. MALCOMSON. No. - -Mr. PUTNAM. You make an entire distinction, as I understand it? - -Mr. MALCOMSON. Yes; an etching and an engraving would come under a -pictorial illustration, without any question. An etching is a -pictorial illustration of a subject, certainly, and an engraving is a -pictorial illustration of a subject; but a lithograph, when the word -is used subsequently in the law, it seems to me should have a place in -the section which provides protection for certain subjects. - -Mr. CAMPBELL. I find here that in the dictionary, under the noun -"print," is this definition: - - 1. An impression with ink from type, plates, etc.; printed - characters collectively; printed matter; as, small print; the - print is illegible. - - 2. Anything printed from an engraved plate or lithographic - stone---- - -Mr. MALCOMSON. I agree with you that the courts might hold that that -was sufficient to cover it--that the word "print" would cover a -lithograph, and I should contend so before the court; but it is this -late decision which leads me to feel that, in so much as it is not -going to do any harm, why should we leave it out? Why should we leave -it out? - -The CHAIRMAN. Are there any other gentlemen to be heard now? - -Mr. PUTNAM. Mr. A. Beverly Smith, speaking for the Reproductive -Arts Copyright League, and particularly for certain groups of -lithographers, simply desired me to say that he thinks also that the -word "lithographs" should go in, but that it should go in in a -separate subsection, and should be coupled with the word "posters." On -the other hand, I ought, to complete the record of this day, to call -your committee's attention to a communication from Mr. Ansley Wilcox, -which has been presented to the committee. He was here in behalf of an -establishment that gets out lithographs, and particularly posters, and -he was at the conference particularly concerned about the protection -of that material. He writes, and his letter has already gone down to -be put in the record, or I should read it; but substantially this, -that he considers the specifications of those subsections as very -liberal and fully covering all that he is interested in. This is -simply for your information. - -Mr. A. BEVERLY SMITH. May I correct the statement of the Librarian, -Mr. Chairman? I do not think it is necessary that the word -"lithographs" should go in there. - -Mr. PUTNAM. I beg pardon, then. I thought you did. - -Mr. A. BEVERLY SMITH. I agree with the statement made to you by the -Librarian regarding consultation with your legal advisers as to -whether or not it should be put in. If you decide to put it in, I -think it would be much wiser not to couple it with prints and -pictorial illustrations at all, but to make a separate classification. -And if you do decide, after consultation, to put lithographs in, I -think that that will also require the word "posters" to be put in. I -personally do not believe that either one is necessary to be defined -separately. - -(Thereupon the committee adjourned until to-morrow, Friday, June 8, -1906, at 10 o'clock, a.m.) - - -COMMITTEE ON PATENTS, - -HOUSE OF REPRESENTATIVES, - -_Friday, June, 8, 1906_. - -The committee met at 10 o'clock a.m., conjointly with the Senate -Committee on Patents. - -Present: Senators Kittredge (chairman), Smoot, and Latimer; -Representatives Currier, Campbell, Chaney, McGavin, Webb, and -Southall. - -Mr. CURRIER. Mr. Solberg, yesterday, when Mr. Cutter was testifying, I -asked him this question: "Can you import two copies of an unauthorized -edition?" He said, "Yes, sir." I asked, "Can you do that to-day?" He -answered, "Yes, sir; we can now." I asked, then, "A fraudulent -reprint, for instance?" "Yes, sir." "There is absolutely no -restriction, as you understand it, to-day?" "There is no restriction -at all, as I understand it, to-day." - -I would like to ask you if you understand the practice to be as Mr. -Cutter states? - -Mr. SOLBERG. The prohibition of importation was introduced into the -copyright law by the act of March 3, 1891, and it was a prohibition of -importation additional or extra to that which is supposed to have -existed in copyright law against any unauthorized copies. The law as -it stood prior to that provided that these unauthorized copies could -only be permitted importation upon the consent of the copyright -proprietor. That is, the author himself or the copyright proprietor -could import even a fraudulent copy. - -Mr. CURRIER. That was prior to 1891? - -Mr. SOLBERG. Yes. But in the act of March 3, 1891, it is stated, in -connection with the typesetting clause, that copies of books not -printed from type set within the limits of the United States or from -plates made therefrom shall not be imported: and then certain -exceptions are introduced, and one is an exception directly on behalf -of the individual buyer. The other exceptions are on behalf of -libraries, which consist in paragraphs of the free list of the tariff -act taken over into the copyright law. It is therefore a matter of -interpretation of the law what the interpolation of these exceptions -means. Now, I can not authoritatively give that interpretation. - -Mr. CURRIER. I would like your understanding of the practice since the -law of 1891. - -Mr. SOLBERG. Perhaps the best light I can throw on that is the -statement that there is an opinion from the Department of Justice, the -Attorney-General, that the exceptions would not bar an unauthorized -copy. - -Mr. CURRIER. Then you understand that Mr. Cutter is right in what he -says? - -Mr. SOLBERG. I would understand it so far as that decision or opinion -would be supported and would be taken as final. - -Mr. CURRIER. Is there any opinion in conflict with that? - -Mr. SOLBERG. There are a number of opinions, none directly in -conflict; none directly upsetting that. - -Mr. CURRIER. Do you know what the practice of the Treasury Department -is now? - -Mr. SOLBERG. No; I am not competent, I think, to say; but Mr. -Montgomery could answer that question if he is here, because it comes -under the collector of customs. - -Mr. CURRIER. If there is any gentleman present who has information on -that subject and can answer that question we would be glad to hear -from him. - -Mr. PUTNAM. Mr. Montgomery was here yesterday; I think he will be here -a little later. I think it might be helpful, if you will permit me to -suggest, Mr. Chairman, as pertinent (it goes beyond your question, but -is relevant in connection with it), as to whether such importation is, -according to the register's information of foreign legislation, -customary abroad--such privilege of importation of an unauthorized -foreign edition of a book printed in the foreign country under -domestic law there? - -Mr. CURRIER. My purpose in seeking this information is to establish -the fact, if it be a fact, where you provide that the importation must -be an authorized edition, whether that is a change in law or not, a -change in practice, whether it is an additional restriction. That is -what I was trying to get at. I have asked a number of times whether -subdivision E, at the top of page 16, "To any book published abroad -with the authorization of the author or copyright proprietor," etc., -changes existing law and is an additional restriction upon -importation; that is all. - -Mr. SOLBERG. You see, the question is difficult of answering -categorically, Mr. Chairman, because it is a question of the -interpretation of a complex statute. - -Senator SMOOT. From the present interpretation of the law there is not -any doubt in the world, then, but what this is a restriction? - -Mr. SOLBERG. I should say that this act attempts to make clear that -all fraudulent copies are barred. - -Senator SMOOT. That is a restriction, then? - -Mr. SOLBERG. As a protection of the copyright. - -(The following communication from the register of copyrights is -printed in connection with his above remarks by direction of the -chairman:) - - LIBRARY OF CONGRESS, COPYRIGHT OFFICE, - _Washington, D.C., June 15, 1906_. - - DEAR SIR: I ask to be allowed to file for the printed report of - the hearing on the copyright bill the following, in addition to my - answers to the questions you asked me on Friday, June 8, in - relation to the importation of copies of unauthorized editions of - American books: - - 1. It is fundamental to the protection of copyright that all - unauthorized reprints of copyrighted books shall be prohibited - importation into the country of origin. It is therefore provided - in all foreign copyright legislation that such unauthorized copies - shall be prohibited importation. Such copies are treated as - fraudulent copies, and I know of no provisions in any foreign - legislation which permit importation of unauthorized copies either - by individuals, educational or other institutions, or libraries. - - In the copyright legislation of the United States prior to 1891, - the provisions prohibiting importation dealt only with - unauthorized copies and these were prohibited importation, except - with the direct consent in writing of the author or copyright - proprietor. - - 2. The act of March 3, 1891, introduced an additional prohibition - of importation, namely, of copies of authorized editions of - foreign copyrighted books, or of authorized foreign reprints of - American copyright books, unless printed from type set within the - limits of the United States or from plates made therefrom. - - To this prohibition of importation certain exceptions were enacted - in favor of private book buyers, educational institutions, and - libraries; and some paragraphs of the free list of the act of - October 1, 1890 (permitting importation without the payment of - duty) were taken over into the copyright law to insure that the - articles named in these paragraphs should be included in the - exceptions to the prohibition of importation of copies of - authorized editions of books. - - It was not supposed that Congress intended that these exceptions - to the prohibition of importation should apply to unauthorized - editions, but upon the matter being submitted to the Department of - Justice an opinion was filed by the Solicitor-General ruling that - the exceptions did extend to unauthorized reproductions of - American books. (See Opinion of Holmes Conrad, April 19, 1895; - Synopsis of Treasury Decisions for 1895, pp. 495-498.) - - 3. In the provisions of the new bill dealing with importation a - careful distinction has been maintained between unauthorized - (fraudulent) copies and copies of authorized editions not printed - from type set within the limits of the United States. - - In the case of all unauthorized reprints of books the prohibition - of importation is absolute, and any such copies introduced into - the United States are subject to seizure, forfeiture, and - destruction. (See sections 26 to 29 of the bill.) In the case of - copies of authorized editions not set in the United States, such - copies if imported are seized and exported, but not destroyed. - (See copyright bill, sec. 31.) - - All exceptions, therefore, to the prohibition of importation of - authorized editions in the bill concern only authorized copies, - and there is no permission in favor of any one to import any - unauthorized, pirated copies. - - Very respectfully, yours, - - THORVALD SOLBERG, - _Register of Copyrights_. - - Hon. FRANK D. CURRIER, - _Chairman House Committee on Patents, House of Representatives_. - - -The CHAIRMAN. It seems that a Mr. Davis, who represents some -manufacturers of musical devices, does not understand that he is to -have any part of the hour assigned to the gentlemen mentioned -yesterday. Is Mr. Davis here? - -Mr. PUTNAM. I think Mr. Davis has not yet come in. - -With your permission, Mr. Chairman, I will state as to the letter of -Mr. Wilcox, to which I referred yesterday in connection with the -suggestion from Mr. Malcomson as to the need of including lithographs -in the specification of subject-matter, that the passage which I -should have read if I had had the letter here (it was with the -stenographer) was this: - - I congratulate you that the bill has taken this definite form and - is now to be given a preliminary hearing, so that it will be in - shape to be urged for passage next winter. The bill is a monument - to the industry and broad intelligence and information of those who - have been actively concerned in drafting it. * * * As affecting the - interest of my client, the Consolidated Lithograph Company, which - is a large producer of lithographic and other prints, engravings, - etc., especially for use as posters, the form of the bill seems - satisfactory to me, and I have no doubt it will be so to my client. - This refers particularly to the provisions of sections 4 and 5, - defining the subject-matter of copyright and the form of - applications for registration. These provisions are in the highest - degree liberal and enlightened. - -The copyright office has received a communication from Mr. Fritz von -Briesen, requesting that in section 5, after line 7, a further -subdivision, "Miscellaneous," be inserted, and that the following be -added: - - _And provided furthermore_, That a series of maps, drawings, - photographs, prints, and pictorial illustrations, and labels and - prints relating to articles of manufacture, and other subjects of - copyright of an artistic nature, constituting a unit or assembled - for a unitary purpose, shall be considered as the subject-matter of - a single copyright registration, should the applicant so elect, - whether or not they are actually joined by binding, printing on the - same sheet of material, or otherwise. - -I suggest this, Mr. Chairman, as appropriate to be inserted in -connection with the discussion of the fees yesterday by Mr. Remicher. -It bears on that point. - -The CHAIRMAN. That will go in the record. - -Mr. PUTNAM. I handed in, I believe, yesterday, a statement in writing -from Mr. A. W. Elson, of Boston, making certain specific recommendations -for changes. He telegraphs me, "Written presentation sent you fully -covers my view." - -That is in answer to an inquiry as to whether he wished to have a -hearing before the committee. - -I have received a communication from the International Brotherhood of -Bookbinders, as follows: - - As president of Local No. 4, of Bookbinders' Union, of this city, - and representative of the International Brotherhood of Bookbinders - of the United States, I would be pleased to be heard on the Currier - copyright bill to-morrow, immediately after Mr. J. J. Sullivan has - spoken on bill. I will not consume more than ten minutes, and - possibly less than that. I will be in attendance at the hearing. - - Very respectfully, - - J. L. FEENEY. - -The office has received, since the bill was introduced, from the Music -Publishers' Association, certain proposed amendments, additional -provisions in connection with the protection of the copyright on -musical compositions. These, I should advise the chairman, have not -been communicated to the gentlemen who are to speak in opposition to -any of those provisions. They have not had them, therefore, before -them in preparing their case this morning at all; and while I have -manifolded copies here which are at their disposal, it is to be -understood that these were not communicated to them. On the other -hand, Mr. Serven, who in behalf of the music publishers handed these -to me, states (if I am not correct, Mr. Serven, you will correct me) -that these contain additional specifications but in the same general -direction. That is all. - -Mr. A. R. SERVEN. That is correct, Mr. Librarian, and simply to -conform subsection G of section 1 to comply with the recent decision -of the United States circuit court of appeals in the White-Smith _v._ -Apollo Company case. The same idea is represented simply. The case was -decided, of course, since the bill was printed. - -The CHAIRMAN. Mr. Putnam, just call our attention to the proposed -change. - -Mr. PUTNAM. This is contained in a written communication, and it will -really take less time to read it from the communication. - -The CHAIRMAN. Yes. - -Mr. PUTNAM. (Reading:) - - Section 1, subsection G, should be amended to read as follows: - - "To make, sell, distribute, or let for hire any device, - contrivance, or appliance adapted in any manner whatsoever when - used in connection with any mechanism to reproduce to the ear or - to cause the said mechanism to reproduce to the ear the sounds - forming or identifying the whole or any material part of any work - copyrighted after this act shall have gone into effect, or by - means of any such device, contrivance, appliance, or mechanism - publicly to reproduce to the ear the whole or any material part of - such work." - -Omitting the explanations, the next amendment will be as follows: - - Section 3 should be amended to read as follows: - - "That the copyright provided by this act shall extend to and - protect all the copyrightable component parts of the work - copyrighted, any and all reproductions or copies thereof, in - whatever form, style, or size, and all matter reproduced therein - in which copyright is already subsisting, and the devices, - appliances, or contrivances mentioned in section 1, subdivision - (_g_) of this act, but without extending the duration of such - copyright." - - Section 23, subdivision (_b_)---- - -The CHAIRMAN. I suppose the other amendments are simply to follow if -the first amendment is approved? - -Mr. PUTNAM. If the first amendment is approved; that is my -understanding. - -Mr. SERVEN. Mr. Chairman, that is true with the exception of one -amendment. The Musical Publishers' Association suggests that the same -right of appeal and review in interlocutory judgments and orders -should be provided for in the new bill as is provided for in the -existing law. That is the only thing that is different. - -Mr. HORACE PETTIT. Mr. Chairman, may I ask Mr. Serven whether he will -add to his amended section 3 the clause which I suggested in my -amendment to the original section 3? It would accomplish the same -purpose as I had intended. My suggestion of amendment would also apply -to your amended section 3, which adds: - - _And provided_, That no devices, contrivances, or appliances, - or dies or matrices for making the same, made prior to the date - this act shall go into effect, shall be subject to any subsisting - copyright. - -Mr. SERVEN, Yes, Mr. Chairman; I think that is only fair to the -interests represented. - -Mr. PETTIT. You accept that as an addition to your amendment? - -Mr. SERVEN. We are very glad to, indeed. We think that is perfectly -fair. - -Mr. CURRIER. A suggestion was made here the other day, the first day -of the hearings, to strike out section 3, I think. - -M. PETTIT. Well, either that or that my amendment be added to it. - -Mr. CURRIER. Yes. Who was the gentleman who replied to you. - -Mr. PETTIT. Mr. Fuller, of New York. - -Mr. CURRIER. I understood Mr. Fuller to say that the question of -whether subsisting copyrights covered these mechanical devices was now -in the court, and they thought the court might hold that such devices -were now covered. If such should be the decision of the court, would -it not prohibit the use of graphophone cylinders and records already -made and in use, if they were records of music covered by a subsisting -copyright, under that section 3? - -Mr. PETTIT. If the decision of the court were such as to include -talking-machine records or other sound records within the subsisting -law, of course it would prohibit that. - -Mr. CURRIER. Does any gentleman here think we ought to legislate along -that line? - -Mr. PETTIT. Not that I know of. I do not understand that they think -so, unless Mr. Fuller was misunderstood. - -Mr. CURRIER. That would prevent any boy or girl in the country who has -bought records and who is using them to-day from using them. -Immediately, I suppose, a warning circular would go out that they must -not use those records and cylinders that they had bought in good -faith. It does not seem to me that we could pass any such legislation -as that. - -A GENTLEMAN. Mr. Chairman, that is exactly the position of a great -many of the interests involved and exactly the position on which we -wish to be heard here to-day. - -Mr. CURRIER. I do not think you need spend much time in talking about -subsisting copyrights. - -Mr. BURKAN. The intent of this act is to make it apply to compositions -copyrighted after this act goes into effect. - -Mr. CURRIER. I understand that another section provides that; but it -must be in conflict with this section if the courts should hold as Mr. -Fuller thinks they may. - -Mr. BURKAN. But the amendment to section 3 should be that the devices -and contrivances mentioned in subdivision (_g_) shall apply only to -compositions copyrighted after this act shall have gone into effect, -and say nothing about subsisting copyright. - -Mr. CHANEY. It can be readily modified to suit that. There is not any -question that we do not want to make it retroactive. - -The CHAIRMAN. Mr. Putnam, is Mr. Davis here now? - -Mr. PUTNAM. Mr. Davis is here. Mr. Davis, it is necessary to know how -the hour assigned to particular opponents of the music provision, or a -group of them, is to be apportioned, and whether the statement that -you are to submit is part of that or not. They understand that it is -distinct from the group of statements by them, and they also state -that they understood that you understood that, and that your statement -would be brief, something like fifteen minutes. I ask in behalf of the -Chairman as to this understanding. Whom do you represent? - -Mr. DAVIS. Inventors as a class of their own, and distinct from -manufacturers. - -Mr. PUTNAM. No particular establishment? - -Mr. DAVIS. No, sir. - -Mr. PUTNAM. And no particular association? - -Mr. DAVIS. No, sir. - -The CHAIRMAN. How much time do you wish, Mr. Davis? - -Mr. DAVIS. About 20 minutes. - -The CHAIRMAN. You may proceed, Mr. Davis. - - -STATEMENT OF G. HOWLETT DAVIS, ESQ. - -The CHAIRMAN. Will you not state your name and who you represent? - -Mr. DAVIS. My name is G. Howlett Davis. I have been an inventor during -all of my majority and represent inventors as a class. I hope to show -how the passage of this act will, first, discourage invention; second, -restrict patent grants already held by inventors; third, provide -authority to confiscate an inventor's physical property; fourth, to -abrogate the inventor's constitutional rights, and, fifth, to create a -monopoly which would be practically controlled by a few to the -detriment of inventors and the public. - -Of course, there are a good many subjects to take up here in the -limited time allowed me, and I am willing to take them up in any order -you may designate. - -The CHAIRMAN. I think it only fair that in your case as well as that -of the other gentlemen the time devoted to questions should not be -considered as part of your time, and taken out of your time; but I -would like to ask one or two questions before you begin. Do you -understand that this bill proposes to interfere with existing patent -rights? - -Mr. DAVIS. Yes, sir. - -The CHAIRMAN. Vested rights? - -Mr. DAVIS. Yes, sir. I shall take that up first, if you please. - -Senator SMOOT. You mean, then, that section 3 is the section that -interferes with them? - -(Mr. Davis looks for the bill.) - -Senator SMOOT. If you have not it there, do not bother about looking -for it now. Go right on. - -Mr. DAVIS. I had a marked copy here. - -Senator SMOOT. We will listen to you when you come to that section, -anyhow. - -The CHAIRMAN. You may proceed, Mr. Davis, and we will not interrupt -you during your twenty minutes. - -Mr. DAVIS. Thank you, sir. - -I would like to first explain that I am here without counsel and -without any previous notice from the Copyright Office, and without -invitation from any source whatever. I discovered the existence of the -proposed bill by mere accident on Saturday last. I was then notified -that a firm which operates under my patents would have to go out of -business if this law passed, and would necessarily have to cancel its -licenses with me. That concern is the Perforated Music Roll Company, -with offices at 25 West Twenty-third street, New York City. I have -also just to-day received similar intimation from another concern -manufacturing under my patents in Philadelphia, the Electrelle -Company, just organized for a million dollars for the manufacture -under my patents for reproducing music mechanically. - -I have been inventing in numerous classes during the last twenty -years, including printing presses, typesetting machines, typewriting -machines, clocks, stencil duplicating apparatus, etc., but about ten -years ago I took up the class of self-playing musical instruments. I -recognized that there was a peculiar relation of this art to -copyrighted musical compositions, and I saw that in some way whatever -devices I might invent for the reproduction of music mechanically -might interfere with the composer's rights, because music is a -necessary component part of the class of self-playing musical -instruments, and you all know that this industry has become one of the -greatest of the young industries of the country. You can take up any -magazine and you will see many pages filled with descriptions of -self-playing musical devices, including phonographs, graphophones, -apollos, angeluses, cecilians, pianophones, and a hundred other -devices for reproducing music automatically. As far as I am able to -ascertain none of these concerns have had notice of this bill, and the -two concerns who are operating under my patents not only have had no -notice, but have notified me, as before stated, that in case of the -passage of the bill they will have to annul their contracts with me. - -From dire necessity I was compelled to work for two years with the -Æolian Company, a concern which attempted to take from me without due -consideration inventions which I believe have since been recognized as -superior to their instrument, the pianola. During the St. Louis -exposition the Government officials sought for a self-playing device -which would represent the highest advancement of the art. Among others -they considered the pianola, manufactured by the Æolian Company, and -they also went further and considered the inventions of poor inventors -who had no backing; and finally they selected my device as the sole -exhibit. It was the only self-playing musical instrument which was -exhibited in the Government building during the St. Louis exposition. - -After I left the Æolian Company, declining to accept the compensation -which they offered me, they have persecuted me in the courts for -years. Moreover, as I can prove to you if you will only give me time -to produce the documents from my attorneys (I waited for them until -the last minute this morning), this concern, failing to secure a -monopoly or strangle my invention through the courts, and recognizing, -as a result of the Government and other indorsements of it, that it -would in time be universally recognized as a superior instrument, has -connived with music publishers and secured from nearly every member of -the Music Publishers' Association a contract which sets forth that in -case the music rolls or records are decided by the courts to come -within the copyright laws, they will take over from them the exclusive -right of reproducing their music for a compensation. These contracts I -have seen with my own eyes. I can swear that they exist, but -unfortunately I can not produce them this morning. But I will agree to -produce at least two of them if you will give me a week's time to do -it. - -Mr. CURRIER. You will have the necessary time to put anything of that -kind in the record. - -Mr. DAVIS. I thank you. Now, the Æolian Company, being back of the -independent members of the Music Publishers' Association, have -influenced in turn the music publishers as an association to insert in -this bill clauses which will cover mechanical methods of reproducing -music; and in proof of this I will say that as a result of Mr. -Solberg's kindness yesterday afternoon in allowing me to search the -records of the star-chamber proceedings presided over by the Librarian -of Congress, that the first introduction of those clauses was made by -Mr. Bacon for the Music Publishers' Association in the form of an -amendment which now appears in all of its substantial terms as -subdivision (_g_) page 2, of the bill. Now, the independent music -publishers in turn control the great majority of composers, so that -there is thus formed a complete monopolistic octopus, in which the -Æolian Company forms the head and brains, the Music Publishers' -Association the body, the independent publishers the writhing arms, -and the composers the suckers and baiters. [Applause.] - -The Æolian Company is a ten-million-dollar concern whose monopolistic -game has already been uncovered in several courts, as I will show by -proofs, and the music publishers are here to pull its chestnuts out of -the fire. [Applause.] - -Now, if the inventors of this country knew what was in this bill there -would be enough here to fill up every room in this great building, but -they do not know it. It will strike them like a thunderbolt out of a -clear sky when they learn that there are clauses in this bill which -not only seem to lessen or destroy the scope and commercial value of -our existing patent and confiscate our physical property, etc., but -also imprison us in case we infringe the proposed copyright act. - -Now I will read you from---- - -Mr. CHANEY. What is your first subheading there that you are going to -talk from? - -Mr. DAVIS. That it will discourage invention, but I would like to take -up this bill first; I would like to take it a little out of set up in -my preamble. - -Mr. CURRIER. Subdivision (_g_) on page 2? - -Mr. DAVIS. Subdivision (_b_) on page 1. - -Mr. CHANEY. All right; "To sell, distribute, exhibit, or let for -hire," etc.? - -Mr. DAVIS. Yes, sir. - -Mr. CURRIER. I do not see how that touches your industry. - -Mr. DAVIS. No, sir; I had my marked copy here---- - -Mr. CURRIER. I should say "(_g_)" was the first one that would affect -you. - -Mr. DAVIS. Yes, sir "(_g_);" you are right, Mr. Currier. - -Mr. CHANEY. That is, "To make, sell, distribute, or let for hire any -device, contrivance," etc.? - -Mr. DAVIS. "To make, sell, distribute, or let for hire any device, -contrivance, or appliance especially adapted in any manner whatsoever -to reproduce to the ear the whole or any material part of any work -published and copyrighted after this act shall have gone into effect, -or by means of any such device or appliance publicly to reproduce to -the ear the whole or any material part of such work." - -Now, in this art of self-playing musical instruments alone I have been -granted some twenty-seven patents by this country, and have also been -granted patents all over the world. My patents read very similar to -this--that I shall have the exclusive right to make, use, and sell the -mechanical contrivance covered by the claims of those patents, and -those claims embody, in connection with the mechanism, a perforated -roll, which is a controller for the instrument, and is an essential -part of it, and in the case of phonographs or graphophones they -include the engraved record. - -Notwithstanding that I have gone ahead in good faith under the reading -of the Constitution and the laws as construed by the courts right up -to date, that composers shall be limited to their "writings," -intimating thereby that we inventors should have the right to any -methods that we might discover for mechanically reproducing -music--notwithstanding that I have expended years of effort and all my -money, time, and labor to devise these machines, and have built models -and exhibited them, and companies have been formed around them--and -notwithstanding that my patents give me the exclusive right to make, -use, and sell these machines, this proposed act comes out and says -that "any device especially adapted in any manner whatsoever to -reproduce to the ear the whole or any material part of any published -and copyrighted work after this act shall have gone into effect," -etc., shall be illegal, and subjects me to all those hardships -enumerated in my preamble, and transfers to the copyrighter in almost -the exact words of my patent those rights given me by the Commissioner -of Patents under the authority of the Constitution. - -I am not a lawyer, and never made a public speech before in my life, -and can only speak to you out of the fullness of my heart. I have not -even been able to get my counsel here---- - -Mr. CHANEY. I do not think you need any. [Laughter.] - -Mr. DAVIS. After destroying or limiting the patent rights already -vested in me as explained, and transferring them in whole or part to -the copyrighter, as contemplated in subsection (_g_), page 2, in the -bill, I am, by another part of the bill, liable to imprisonment if I -infringe a copyrighted composition, and this I will do of necessity if -I proceed under the authority of my existing patents giving me the -exclusive right to make, use, and sell my mechanical device for -reproducing music, whether copyrighted or not, thus through two -conflicting grants, one to the composer and the other to me, I may -innocently---- - -Mr. CURRIER. Not if you do it innocently. If you read it carefully you -will find that that is the case. - -Mr. DAVIS. There is a paragraph further over, section 25, page 18, -which provides that anyone who shall knowingly and willfully infringe -the proposed copyright "shall be deemed guilty of a misdemeanor, and -upon conviction thereof shall be punished by imprisonment for not -exceeding one year." Now, if I proceed "willfully" to exercise my full -rights as vested in me by my existing patents in defiance of the -conflicting and unconstitutional copyright grant proposed, then the -copyrighter can put me in jail for a year and during my incarceration -and during the entire life of my patents make, use, and sell my -machines under the provisions of subsection (_g_). It is no -misdemeanor for one inventor to infringe the patents of another -inventor, no matter how frequent and willful such infringements may -be; then why imprison an inventor for infringing a usurping -copyrighter. Supposing such infringements are innocently made, then -wealthy and unscrupulous corporations, such as the Æolian Company, -through their unscrupulous lawyers, will succeed in jailing many poor -and innocent inventors. It is hard enough now for most inventors to -keep out of the poorhouse and the courts; don't add to their present -hardships. - -Senator SMOOT. Mr. Davis, of course you mean that that would happen if -you published something after the passage of this act that was -copyrighted? This act plainly says, in section G: "Any work published -and copyrighted after this act shall have gone into effect." It does -not affect anything at all that you have done before? - -Mr. DAVIS. Yes; but it applies to machines that I have already -invented and which I may use after this act, according to my patent, -to mechanically reproduce any music of the past, present, or future. - -Mr. WEBB. It does not apply to pieces that you play on those machines -now, though, even if they are now copyrighted, does it? It only -applies to pieces copyrighted after this act goes into effect. - -Mr. DAVIS. My machines, those that I have been inventing and patenting -for years, are specially adapted to reproduce, or may be specially -adapted and arranged to reproduce any particular piece, whether -copyrighted to-day or hereafter. Under the Constitution, as I -understand it, I have the right to use anything that is not a writing, -a readable writing; and I have gone ahead under the Constitution with -the full reward therein provided as an incentive for my work. The bill -covers not only pieces or controller records, but also the machines -which they actuate. - -Mr. WEBB. You do not understand, though, Mr. Davis, that this act will -destroy any of your vested rights at present, do you? - -Mr. DAVIS. I do, sir; as I have explained, though perhaps not clearly. - -Mr. WEBB. When it says that it shall only apply to works published and -copyrighted in the future? It only applies to works copyrighted and -published after this act goes into effect, and I do not see how it can -affect any vested right which you have on account of your past -investments. - -Mr. DAVIS. But the idea of inventions is to be able to produce a -mechanism which can be specially adapted to any music, whether of -to-day or to-morrow. My patent grant does not except new copyrighted -pieces. - -Mr. WEBB. I understand that; but there are two propositions involved -here. The first is, you say it will destroy what you have already -invented. The next is, you say it will destroy you because of your -inability to get hold of these pieces that will be published and -copyrighted in the future. Is that your point, now? Is that your -argument? - -Mr. DAVIS. I say that this practically depreciates or destroys the -marketable value of my inventions or machines, which are capable of -being used for mechanically reproducing either old or new music, as -well as destroying in part or whole my existing patent rights. - -Mr. WEBB. Because it will not let you reproduce works published and -copyrighted in the future? Is that the reason, now, why you say it -will destroy your invention? - -Mr. DAVIS. Yes, sir; coupling this admission with my previous -explanations. - -Mr. WEBB. I wanted to get your meaning. - -Senator SMOOT. Or, in other words, if Mr. Sousa should have a very -popular air or piece produced in the future, you think that you ought, -as you have in the past, to simply be permitted to reproduce that by -your machine? - -Mr. DAVIS. Yes, sir; either I or any other patentee. - -Senator SMOOT. Without any consideration whatever? - -Mr. DAVIS. Yes, sir, I do; because outside of a possible minor and -remote ethical or equity right, he possesses not a vestige of a -statutory or legal right to stop me. - -Senator SMOOT. And whatever his brain, and his talent, and his gift -has brought forward, you are entitled to use? - -Mr. DAVIS. And I want to go ahead and explain, if you will allow me, -why I say that. - -Before I took up this art of self-playing musical instruments, as I -said, I saw that there was a possible limitation, and that in order to -make inventions commercially successful I would have to use musical -compositions. If I used old music, they would be useless. I would have -to use current music; and I read the Constitution, and the very first -article of the Constitution that I came to, section 8, reads: - -That the Congress shall have power to promote the progress of science -and useful arts by securing, for limited times, to authors and -inventors, the exclusive right to their respective writings and -discoveries. - -Mr. WEBB. Mr. Sousa insists on that, too. [Laughter.] - -Senator SMOOT. Yes; I was going to say, that is just exactly what -Professor Sousa insists upon. - -Mr. CHANEY. That is where the other fellows claim they come in. - -Mr. DAVIS. There is where Mr. Sousa and the trust, on one side, and I -are going to lock horns--right here with the Constitution as our -battle ground. - -Mr. MCGAVIN. Would you like to amend that? - -Mr. DAVIS. No, sir; I want the Constitution to stand as it is. It is -not the construction Mr. Sousa puts on this word "writing" therein; it -is not the construction that I put on it; but I followed this matter -down, as an inventor. Every decision that has ever been made in this -country and England, as I read it, has limited that word "writing" to -mean some visible and readable writing; not the mere making of a wave -in the air. If I invent improvements in wireless telegraphy, the -Government does not grant me anything but the mechanical means of -doing that, or the method. It does not give me exclusive right to use -God's free air and vibrate it. - -For instance, we will imagine Mr. Sousa facing an audience of ten -thousand persons and behind him one hundred skilled musicians who, -upon the movement of Mr. Sousa's baton perform in melodious concord -upon one hundred different musical instruments. We will, for -illustration, as audiences do without suggestion, forget the inventors -who evolved the orchestral musical instruments and without which -Sousa's band would be a nonentity, and take under consideration only -one of the inventors who have formed part of the audience which has -been enraptured. After the performance the thought occurs to many that -it would be a blessing to mankind if such music as they had heard -could be reproduced at will for their own pleasure and for that of -those who are in remote sections of the world and for those who are -too poor to pay for even the lowest-priced seat. - -One of the inventors present determines that he can produce the great -desideration to practice, and from that moment commences to evolve in -his mind thousands of different apparatus which appear to him feasible -for the full achievement thereof. After years of experimenting he is -ready to test a machine which, in some of its structural features, -resemble that of the human organism. The inventor's machine is set up -within the range of the air waves, set in vibration by the instruments -of Sousa's band, and which air waves are escaping into space to be -lost to man forever. The ear-like diaphragm of the instrument is -impinged by and set in motion, and through connecting means resembling -the human oricular bones and nerves there is engraved upon a sensitive -surface not far unlike the material matter of the human brain a record -of every minute vibration of all the one hundred instruments. - -After the performance no one in the audience, musician though he be, -can simultaneously resound any two instruments, and the majority of -the audience would be hissed if they attempted to resound any one of -the instruments. Not so with the mechanical listener, for it is -capable of resounding simultaneous and accurately all of the 100 -instruments, and upon the expenditure of 50 cents for a copy of the -machine-made record the poor man and his family in every part of the -world can, by a slight movement of his hand, start up his $7 -graphophone and thus be amused and enraptured, all owing to the -inventor having caught, preserved, and provided means for mechanically -reproducing the air waves which would have otherwise have escaped -beyond Sousa's power to recall. Nevertheless, the bill provides that -the lost chords must be all returned to Sousa by the inventor in the -form of a royalty. - -There is no novelty in music, nor vibrating the air as a means of -transmitting musical tones, for-- - - Long 'ere earth was matter or had form, - Music out of wind and lightning was borne; - It was thus God solaced nature, - And her troubles were shorn. - -Now, defining an ethical or equity right which the inventor might -claim with equal justice against Sousa and other composers, the common -people all over the world, who listen to the mechanically reproduced -lost chords of Sousa's band, do frequently order and pay for the sheet -music score for the piano, banjo, violin, and other instruments which -the purchaser plays or thinks he can play, and upon all these orders -induced by the inventor's machine he is entitled to a commission, -which in actual fact and adjustment would offset the alleged right of -the royalty claimed in this bill. There are many other corelated -equity rights which us inventors might set up but which it would be -impracticable to secure to us. - -The CHAIRMAN. Mr. Davis, if I may interrupt you, do you claim that you -have the right to take one of Mr. Sousa's compositions and use it in -connection with your mechanical device without compensation to him? - -Mr. DAVIS. Under the Constitution and all the laws of the land, I say -yes, decidedly; but I want to explain my contention and the position -of inventors in a little different line of argument. - -The composer of music never conceives nor produces, and never did in -respect of the actual composition, conceive or produce, any means for -conveying to the ear the musical composition. On the contrary, all -such means from the beginning to the present time are the direct -result, not of authorship, not of composition, but of invention. The -composer never conceives the idea of a mechanical means for playing a -piece of music. That achievement is the result of the effort of the -inventor. The Constitution makes no distinction in respect of right of -protection as between an author and an inventor, but both are coequal -under the Constitution, and the line or field within which each may be -protected is clearly marked out in the Constitution, the result of -authorship being distinctly distinguished from the result of -invention. The author is restricted by the Constitution to protection -for "writings" and the inventor to "discoveries." - -The courts have determined what may properly come within the -constitutional provision of discoveries, and it has been determined a -number of times that under the constitutional provision a writing does -not include a mechanical contrivance. If the law under discussion be -enacted it will operate to take away from the inventor the rights -which are vouchsafed to him by the Constitution and by the laws of -Congress enacted in pursuance thereof, and deliver his rights over to -the author or composer of a literary production or a musical -composition. Such a procedure would clearly annihilate the inventor, -offering him up as a sacrifice to the author or composer. The -Constitution intended no such thing, and in matter of every right, -irrespective of the limitations provided by the Constitution, Congress -ought not to pass a law which turns the inventor over to the mercy of -the author or composer. - -It is needless to mention to this committee the unprecedented state of -prosperity and material progress attained by this country as the -direct result of invention. In all arts the work of the inventor will -be found at the foundation of the progress and prosperity of the -country. The author or composer has to do more with the pleasure or -esthetics of life, the inventor with the real necessities, and in the -art allied to the fine arts has had to do with placing throughout the -United States in the possession of the common people everywhere the -means by which the composer as composer can never give them. It is not -for a moment intended to detract from the value of the work of the -author or composer, for his work is valuable, but its value has -certain limitations, and these limitations are defined in the -Constitution and acts of Congress heretofore passed in pursuance -thereof. - -The farmer or the workingman in all the small towns of this country, -who are possessed of an electrical piano player or an automatic piano -player, or a graphophone or a phonograph, which serves to relax the -tension of their daily labor and fill their souls with music, is not -because of the composer, for he rarely reached them, but it is the -direct result of the inventor of the mechanical contrivances with -which music may be conveyed. Yet this law attempts to reach out and -take away from the inventor the product of his brain and to deliver it -over to the composer. So far as the mass of the people of this country -is concerned, the work of the composer is infinitesimal as compared -with the work of the inventor, and the inventor is willing that the -composer shall have his just rights under the Constitution; that is to -say, shall have full protection in his writings, but does protest that -a law should not be passed which will enable the composer to overstep -the field of protection to which he is entitled under the Constitution -and usurp that which the Constitution has particularly provided shall -be with the inventor. - -Mr. CURRIER. Would you object to paying a reasonable royalty to a -musical author or the proprietor of the copyright if all companies -would get the right to use that piece of copyrighted music upon the -same terms? - -Mr. DAVIS. Most assuredly not--no, sir; I would not, provided---- - -Mr. CURRIER. You would not object to paying a reasonable royalty if -that right was given to all upon the same terms? - -Mr. DAVIS. Provisionally I would not object, but your proposition is -one which mainly interests the manufacturers of my machine, whom I do -not represent. As an inventor I approve of the bill as a whole and -only seek to strike out therefrom those comparatively few words -covering mechanical devices, the insertion of which vitally affects -our present vested rights. - -Mr. CURRIER. If it could be worked out along the lines suggested, you -would not object to that? - -Mr. DAVIS. No, sir; no, sir. But, in my opinion, you will never be -able to draw a better or more workable line of demarkation between the -inventor and composer than that now set up by the Constitution, -particularly if you follow the lines of the present bill as regards -mechanical devices, in respect to which collusive elements have been -at work behind the drafting of the bill. I will give you my word of -honor to produce evidence of it. - -The CHAIRMAN. Of what character? - -Mr. DAVIS. That Mr. Sousa, or rather the majority of composers, have -been sold out by their publishers to this monopolistic octopus, the -Æolian Co. and lesser satellites, and that contracts exist which -anticipate and control benefits designed primarily for the composers, -with whom us inventors have no direct fight. - -Mr. CHANEY. The idea is now, you know, to try to protect these people -who produce the music to the public, and all that. They have rights -which we are bound to respect, as well as the inventor. - -Mr. DAVIS. Yes, sir; and I would help you in all reasonable and lawful -efforts. - -Mr. CHANEY. And the idea now is to try to evolve something that will -treat everybody fairly. - -Mr. DAVIS. Yes, sir. But if the Constitution has led inventors on, -given an incentive to them to go ahead and work and devote their funds -and lives to developing these industries, which are second to none in -the world as young industries, it would be wrong to come in at this -stage and either curtail the incentive or subtract from rights already -vested in them. - -Mr. CURRIER. Yes; but that very clause gives the same incentive and -protection to the musical author, does it not, as to the inventor? He -is protected on his writings as you are on your discovery? - -Mr. DAVIS. Yes, sir; there is a line of demarcation set up in the -Constitution. I went in to try to get the line of demarcation between -an inventor and a composer. I went in, as I thought, intelligently. I -have studied the laws right down to the last decision of the 25th -ultimo, that of the court of appeal for the second circuit, and all -confirm the contention which I have made here that the only incentive -held up to the composer is a specific protection for his "writings," -not on machines. - -The CHAIRMAN. Would you object to Mr. Sousa taking your invention and -combining it with his composition and putting it upon the market? - -Mr. DAVIS. If there was some fair, equitable way of doing that, no -sir, I would not. But unfortunately, we inventors and composers are -the ones that are generally imposed on, and naturally I am fearful -that any change in the laws as they now exist will prove -disadvantageous to both our interests. - -Mr. MCGAVIN. If I understand your position correctly, you feel that -Mr. Sousa has no more right to require any further compensation from a -phonograph company, if it be a phonograph company, for the use of any -particular piece of music which has been copyrighted, and of which he -has received the benefit, than an inventor of a drum would have a -right, after he has been protected by a patent right, to require Mr. -Sousa to pay further for the use of that right. That is your position, -is it not? - -Mr. DAVIS. Well, you can look at that in two different lights. From -the legal standpoint he has no right whatever. From an ethical -standpoint there seems to be a sort of remote ethical right. I am not -a lawyer, and not used to legal verbiage, and am not sure that I can -clearly differentiate between legal and ethical rights. - -Mr. CHANEY. Well, this is the "Constitution between friends," you -know. - -Mr. DAVIS. As inventors we proceeded under the laws of the land as -they exist. - -Mr. MCGAVIN. That is just what I say. - -Mr. DAVIS. Mr. Sousa, through his publishers, has tried in the various -courts to have the word "writing" broadened, but he has failed to do -so, and he now comes to you to do it. In no copyright act or law has -there ever been introduced before--you will not find it anywhere--one -word or clause or phrase, before this one, that covers mechanical -devices. - -Mr. CHANEY. Under that word "writing" you want to exclude such people -as Mr. Sousa entirely from its operation in respect to self-playing -musical instruments? - -Mr. DAVIS. If you are going to work under the Constitution; yes. - -Mr. CHANEY. Then, is it not high time that we were giving it a little -wider construction than that? - -Mr. DAVIS. I think it is rather late in the day, after we inventors -have spent our lives at this art and created a new industry. I think -you ought to have done it soon after 1789, if at all, and if the law -had been passed then there is no inventor in the land that would have -gone ahead developing this particular art. - -Mr. CAMPBELL. Why not, Mr. Davis? - -Mr. DAVIS. Because we would have been dominated by composers, as I -have explained at great length. - -Mr. CAMPBELL. Mr. Sousa can not use your machine nor your process. - -Mr. DAVIS. But we would have gone into other fields or arts not -dominated by composers. We would have left this art undeveloped. He -may make use of machines if he can construct them with "writings" or -musical tones and infringe only a remote correlative ethical right of -the inventors. - -Mr. CAMPBELL. Well, now if there is a mercantile demand, a commercial -demand, for your method of reproducing music, why would you not have -gone into it for exactly the same reason? If Mr. Sousa's music, played -upon your machine, meets a public demand, he must use your instrument -just exactly the same as you use his music. - -Mr. CURRIER. But suppose there are half a dozen of these concerns and -one of them, by an arrangement with the musical publishers of the -country, gets control of all the copyrights? - -Mr. DAVIS. That is what they have done, sir. - -Mr. CURRIER. Then would the competing concerns be able to use their -instruments at all? - -Mr. DAVIS. They might use, but could not sell, and over their -pecuniary misery would weep alone. [Applause.] - -Mr. CAMPBELL. The proposition here is that this bill, as I understand -it, does not affect what has already been done. It applies to the -future. You all stand upon the same level, and that relates right back -to the contractual rights of the parties. If Mr. Sousa desires to make -a contract with some machine producing music independent from yours, -why should his right to do so be restricted by us under the law? That -is the question I would like to have you answer. - -Mr. DAVIS. Well, sir, I am not a lawyer---- - -Mr. CAMPBELL. No; but that is a practical question. - -Mr. DAVIS. I have been trying to get counsel here. He would probably -have advised me in my opening speech for the opposition to imitate Mr. -Sousa in making a bid for your sympathy and avoid a discussion of fine -legal points, but I will give you my practical ideas of that. I am an -inventor who has studied the law, but without being a lawyer I am -ready to say that as the law now stands---- - -Mr. CAMPBELL. I am speaking of the future. This bill affects the -future. - -Mr. DAVIS. Well, "this bill affects the future," but has it the right -to affect the future? Has it the right to change a situation which has -existed since 1789? The bill proposes a change, not merely amend the -Constitution, therefore I challenge the authority of Congress to enact -it. At present the composer has no contractual right as regards a -machine, and Congress can not give it to him. - -Mr. CAMPBELL. That is the very proposition we are trying to get at. - -The CHAIRMAN. We can not very well change the Constitution. - -Mr. CHANEY. It is not a question of changing the Constitution; it is a -question of giving the Constitution its fullest scope. - -Mr. DAVIS. Well, a gentleman speaking here yesterday, Mr. Stephen H. -Olin, counsel for the American Publishers' Copyright League, although -favoring this bill as a whole, gave you a warning that if this bill -attempted to broaden the word "writing" so as to include a machine, -then the bill in this respect might be held by the Supreme Court to be -unconstitutional, and I have already traced the introduction of the -terms "machine" or "device" in the bill direct to the monopolistic -octopus. Mr. Olin made that statement here yesterday voluntarily. - -Mr. CHANEY. I know that. - -Mr. DAVIS. Proceeding further, Mr. Olin said he was not interested in -the introduction of any clause restricting the mechanical reproduction -of music; that he was satisfied to leave that to the courts, and let -the courts give the construction of that word "writing" in the -Constitution. They have been at work at it for many years, with the -result that a machine remains a machine and not a "writing." - -Mr. WEBB. Mr. Davis, your idea is that if the composer or publisher -copyrights a piece of music and sells it and in the sale gets whatever -price his copyright or royalty gives him, and you buy it, or anybody -else buys it, that that purchaser has a right to play it or sing it in -public or private, or anywhere else he pleases? - -Mr. DAVIS. No, sir; I do not say that, exactly, sir---- - -Mr. WEBB. What is your position, then, if that is not your position? - -Mr. DAVIS. Your proposition brings up the question of public -performance. I say that the composer's rights are limited under -existing laws to all benefits which he may receive from his visible, -readable "writings" expressing his original musical conceptions, and -that he can make copies of it in any manner he sees fit; but he has -not the right to usurp the rights of an inventor to reproduce that -music through self-acting mechanical means in public or private. The -inventor has a peculiar field here. The Constitution, as I would -translate it, in layman's language, says: "Now, Mr. Inventor, if you -can come in and invent a machine in which the melodies that would -otherwise be lost can be forever preserved and reproduced to the -public for the public benefit, you shall be protected." This includes -public performances. We do this in a way that does not decrease Mr. -Sousa's income, but increases it, as I have explained. - -Mr. WEBB. If a man goes to a store and buys a piece of copyrighted -music he expects to have the right to sing it and play it anywhere he -pleases; otherwise, what does he want to buy it for? - -Mr. DAVIS. That is the human agency. Mr. Sousa's compensation may or -may not cover all human agencies for reproducing that music, including -public performances, and concerning which the inventor is not -specially interested. The inventor should have the right to all -mechanical agencies, where the human agency does not enter into it in -any way whatever, including public performance. - -Mr. WEBB. Well, they say you can use your mechanical devices wherever -you please, just so you do not use their music. - -Mr. DAVIS. Well, Mr. Sousa is not construing the laws. I am telling -you my idea of the laws, as I understood them when I entered into this -art ten years ago, and as the courts have sustained them right up to a -few days ago. - -Senator SMOOT. Mr. Davis, as I understand you, you would not object at -all to paying a royalty for any music that you may use upon any -instrument that you may have invented or produced, providing that that -same royalty is paid by all other concerns or individuals, and that -all other concerns and individuals may have the same right to use it -as any particular one that the producer of the music may even try to -designate himself? - -Mr. DAVIS. Individually--and I believe I represent the class of -inventors affected by the proposed act--and without retreating from -the stand I have taken regarding our present rights, I would not -object, because I recognize that remote ethical right which you are -casting about to secure and deliver over to the composer together with -the many other new gifts in the bill. If you can protect it in some -such way as will meet my many objections, we inventors will be -satisfied, but I am constrained to say that I think your efforts will -be futile. - -The CHAIRMAN. I think that is all, Mr. Davis. You can submit in -writing any further statement that you desire to make. - -Mr. DAVIS. Thank you; and may I submit later the evidences and proofs -to which I have referred? - -The CHAIRMAN. You may do that. - -Mr. DAVIS. Senators and Representatives in joint committee assembled, -I thank you for the close attention which you have given to my remarks -and for the liberal extension of time within which to make them; and -on behalf of the inventors of this country I assure you of our full -confidence and belief that you will finally modify the proposed act in -a way that will protect our properties and persons against the -monopolistic giants who do now or may hereafter seek to destroy us. - -Mr. SOUSA. Mr. Chairman, the gentleman referred to "visible music." -Now, as I think you can see, that [referring to sheet music] is music, -one notation. This [indicating perforated roll] is a perforated roll. -That is visible; that is music in another notation. That is what they -are taking [indicating perforated roll]; that [indicating sheet music] -is what we are paid for. - -Mr. HERBERT. Mr. Chairman, one word. Mr. Davis has made a statement -which is absolutely untrue. He said, speaking about the Æolian Company -and this contract which they have signed, or made the publishers sign -with them, that "They control the publishers and the publishers -control the composers." That is absolutely untrue in my case. Nobody -controls my works, the works that I am going to write. I am going to -bring out a work in September, of which I have only written a few -notes so far. I do not even know what I am going to write, and nobody -has a contract with me to-day. I want to state most emphatically that -I have not even been approached by any firm for the future. - -Mr. CURRIER. Who is your publisher? - -Mr. HERBERT. Mr. Whitmark, of New York. - -Mr. CURRIER. Has anybody else published any of your music? - -Mr. HERBERT. Yes; Schubert & Co., Schirmer & Co., and so on. - -Mr. CURRIER. Do you mean lately? - -Mr. HERBERT. That was before I went with Whitmark. - -Mr. CURRIER. How long have you been with him? - -Mr. HERBERT. About six or seven years. - -Mr. CURRIER. And nobody else has published any of your music in six or -seven years? - -Mr. HERBERT. Not since then; no, sir. Naturally, I have a perfect -right to go around to my friends and get the best offer I can, have I -not? - -Mr. CURRIER. Surely. - -Mr. HERBERT. There must be competition. But I want to state most -emphatically--and I know that these gentlemen are going to try to make -the point that arrangements have already been made--that there have no -arrangements been made in my case--absolutely none. I have not even -been approached by any one of the companies--not even by the company, -for instance, that is in favor of paying the royalty, the Victor -Talking Machine Company. They have never spoken a word to me about the -future, and I have not made a contract for my next work with Whitmark -& Sons yet. I may publish it with somebody else; I do not know. So I -am perfectly free to say that his statement in that respect was -absolutely untrue. - -Mr. SOUSA. I would like to say, Mr. Chairman, that I have never been -approached by any of the mechanical instrument companies; and the -house which I have a contract with, the publishing house, is not a -member of the Music Publishers' Association. I have never even been -approached by any of them, and I have no contract with anyone. - -The CHAIRMAN. We will hear you now, Mr. O'Connell. - -Mr. PUTNAM. Mr. Chairman, for the group of interests which are now to -be heard I wish to make a statement that they might feel called upon -or required to make, but which it is not fair should be taken out of -their time. They were not participants in the conferences. How -completely they were omitted is apparent only from the list. That list -is before you. It will take but a moment to read the titles of these -associations: American Authors' Copyright League, National -Institute---- - -Senator SMOOT. We know them. - -The CHAIRMAN. They are already in the record. They have been laid -before us. - -Mr. PUTNAM. They were not participants in the conferences. They were -not invited to the conferences by the copyright office. There were no -notices sent to them from the copyright office that the conferences -were being held; that these provisions were being considered at them. -The copyright office shows, so far as I am aware, no communication -with them on the subject of any of these provisions. We have never, -ourselves, in any way notified them that these provisions were being -proposed for the bill. I say that as much because it is to their -advantage that I should say it as for them to say it, and it is not -fair that that statement should have to be made at the expense of -their time. - - -STATEMENT OF JOHN J. O'CONNELL. - -Mr. O'CONNELL. We intended to make that statement ourselves. - -The CHAIRMAN. Whom do you represent? - -Mr. O'CONNELL. I appear on behalf of ten independent manufacturers of -automatic piano players in the city of New York, and the names of -these concerns are as follows: Winter & Co., Ludwig & Co., Jacob Doll -& Sons, Laffargue & Co., John Ludwig, the Regal Piano and Player -Company, Ricca & Son, the Auto-Electric Piano Company, Newby & Evans, -and the Estey Piano Company. - -I also appear on behalf, by arrangement here, of independent -manufacturers of music rolls. I can also say that possibly what I -shall have to say to your committee will represent the ideas of the -various independent manufacturers of automatic piano players in the -United States and the various independent manufacturers of perforated -music rolls. - -To anybody reading the provisions of this bill it would appear very -clearly that one of the great special interests were the manufacturers -of perforated music rolls. Proceed a little further and it will be -very apparent that the manufacturers of automatic piano-playing -instruments, which can not be operated without music rolls, had a very -special interest in this bill. It would be the easiest thing in -creation to notify the manufacturers of music rolls and the -manufacturers of automatic piano players of these conferences. Take up -any directory of manufacturers in the United States and you would find -them by the dozen. - -The CHAIRMAN. Let me interrupt you for a moment, Mr. O'Connell, to say -that so far as I myself am concerned it does not seem necessary to -continue longer upon that line, for the reason that the committees of -the Senate and House are now giving you a hearing, and you shall have -an ample opportunity to present your side of the case. - -Mr. O'CONNELL. I simply wanted to make it clear to the whole -committee, as I explained it to the chairman yesterday, that it was -only last Saturday that we knew what the situation was and knew what -the provisions of this bill were. - -I might say at the outset that the companies which I represent are not -members of that class which Mr. Putnam so delicately denominated as -pirates. We are here to protect industries in which there are invested -millions of dollars. It has also been said by some of these special -interests which are appearing in favor of the bill, in elegant -language, that we were "butters-in" at the eleventh hour, and that we -are here for the purpose of a hold-up. If protecting our business -makes us butters-in and hold-up artists, then we come under that -definition. - -I want to say furthermore, at the outset, that we have no particular -controversy or quarrel with those very eminent gentlemen, Mr. Herbert -and Mr. Sousa. It is perfectly proper for them to seek to get all they -possibly can from the products of their genius, but we are all a great -deal too sentimentally inclined toward them and their possessions -because of the many hours of delight they have given to every one of -us. - -Here is our position, and I will try to outline it as briefly as I -possibly can: A number of years ago in the city of New York, within -the last decade, a number of gentlemen interested in a manufacturing -concern, one of the pioneers in the piano-playing industry, had the -foresight to realize that the industry was destined to become one in -which there were millions of dollars of profit, followed the -conclusion that they would like to get for themselves all of the -millions in that particular industry. The question was how to achieve -and attain that result. Naturally they turned to the patent laws, to -get monopolies under patents covering not only the machines -themselves, but also the music rolls, without which the machines could -not be operated, and machinery for cutting such music rolls. - -Applications were made on their behalf for hundreds of patents, both -on the machine and on the music rolls, and on machines for cutting the -music rolls. Before they had gone very far, however, it developed that -the patent laws would not afford them a monopoly of the machines or -the music rolls, because of the fact that they could not get and -control a basic patent, for the reasons that in the first place the -operation by means of wind instruments, vacuums, etc., of an automatic -playing device was as old as pipe organs, and furthermore that the -perforated music roll or perforated music sheet was also as old as the -very ancient hand organ. Therefore they saw that it was utterly -impossible for them to obtain the monopoly which they wanted under the -patent laws, and naturally the next thing for them to consider was: -Can we not attain the required result through the copyright laws? - -Eminent counsel were retained, and those eminent counsel, after an -examination of the existing copyright laws and decisions, made this -discovery: That in what is known as the McTammany case, decided by -Judge Colt in the United States circuit court for the district of -Massachusetts some twenty years ago, that jurist held that the -perforated music sheet used in a hand organ was not an infringement of -the copyright music sheet covered by the statute. When they had -reached this point it became necessary to develop a new line of -action, and this was the new line of action: - -Now, there existed at that time an association of music publishers, -and that association included and includes practically all of the big -publishing houses which turn out the classical as well as the modern -and popular compositions of the day. They said to themselves: Let us -make contracts with all of these houses whereby we will get from these -houses the exclusive right to reproduce the compositions which they -handle in music rolls and other mechanical devices. Then we will go -ahead and we will institute suits and try to obtain a reversal of the -decision of Judge Colt in the McTammany case, and if we fail in that, -then, holding exclusive contracts as we do with the vast majority of -the publishing houses, we will go before the Congress and get from it -what the courts refused us. - -Mr. Chairman and gentlemen, I am not speaking in the air about this. I -have here with me a copy of two contracts made with one house in -Chicago by this monopoly, and I now offer in evidence those two -contracts. - -Mr. CURRIER. What is this monopoly? You have not mentioned the name of -it. - -Mr. O'CONNELL. The Æolian Company, of New York, which is a Connecticut -corporation. - - -DEFENDANT'S EXHIBIT ÆOLIAN-SUMMY CONTRACT. - - _Document No. 1._ - - Memorandum of agreement, made and entered into this 30th day of - April, 1902, by and between Clayton F. Summy Company, of Chicago, - in the State of Illinois, party of the first part, hereinafter - called the publisher, and the Æolian Company, a corporation - organized under the laws of the State of Connecticut, and having a - place of business in the city of New York in the State of New - York, party of the second part, hereinafter called the Æolian - Company, witnesseth: - - That whereas, the publisher is the proprietor of certain - copyrights for musical compositions and the owner of rights in - copyrights for other musical compositions; and - - Whereas, the Æolian Company is engaged in the business of - manufacturing and selling automatic musical instruments controlled - by perforated music sheets, and in manufacturing and selling - machines for playing keyboard musical instruments, which machines - are controlled by perforated music sheets, and in manufacturing - and selling perforated music sheets for such automatic musical - instruments and machines; and - - Whereas, the Æolian Company is desirous of acquiring the exclusive - right for such perforated music sheets in and to all the - copyrighted musical compositions of which the publisher is the - proprietor, or as to which he is the owner of any rights, and of - all those other musical compositions which may hereafter be - protected by copyright, and the copyrights for which or rights in - which may be acquired by him; - - Now, therefore, the publisher, for and in consideration of the - premises, and of the sum of $1, lawful money of the United States, - to him paid by the Æolian Company, receipt of which is hereby - acknowledged, and for and in consideration of the true and - faithful performance by the Æolian Company of its covenants - hereinafter made, does hereby sell, assign, transfer, and set over - unto the Æolian Company, the exclusive right for all perforated - music sheets of the kinds aforesaid in and to all the copyrighted - musical compositions of which the publisher is the proprietor, or - in the case in which he is the owner of any less rights, to the - extent of said rights, and does hereby covenant and agree with the - Æolian Company to give and secure to it, the exclusive right in - like manner for all perforated music sheets of the kinds aforesaid - in and to all those other musical compositions which may hereafter - be protected by copyright, and the copyrights or rights in which - may be acquired by the publisher. - - And the publisher for the consideration aforesaid hereby covenants - and agrees, so far as it may be reasonably in his power, to - protect the Æolian Company against any claim of any third person - in respect to any and all copyrighted musical compositions which - may be involved in this agreement, and the copyright of which may - be owned by the publisher. - - And the Æolian Company for and in consideration of the premises - hereby agrees that it will keep correct and true books of account - in which it will set down or cause to be set down entries of all - perforated music sheets made by it for playing the copyrighted - musical compositions owned or controlled by the publisher; that it - will on the 20th day of each and every January and July, during - the continuance of the manufacture and sale by it of the - perforated music sheets for playing such musical compositions, - render unto the publisher a correct and true statement of the - number, names, and other designations of such perforated music - sheets sold by it during the six preceding calendar months, and - that at the time of rendering each and every such statement it - will well and truly pay unto the publisher a license fee or - royalty of 10 per cent of the list prices made by the United - States publishers of the printed scores or copies of such musical - compositions, but never more than 50 cents for any one of such - perforated music sheets. - - And the parties hereto mutually covenant and agree that nothing - herein contained is to obligate the Æolian Company to pay any - license fee or royalty upon such perforated music sheets as shall - be made by it in the United States and sold or shipped to any - other country, unless it shall have been decided by a court of - competent jurisdiction of such other country that the copyright - laws of that country shall be applicable to perforated music - sheets of the kind herein mentioned. - - And the parties hereto mutually agree and covenant that the term - "perforated music sheets" is not to be construed as covering the - controllers of those musical instruments which are generally known - as phonographs, or music boxes, or hand organs. - - Anything herein to the contrary notwithstanding at the expiration - of thirty-five years from the payment of the first license fee - hereinbefore provided, the Æolian Company shall not be entitled to - license under the copyrights thereafter acquired by the publisher, - but all licenses existing under copyrights theretofore acquired by - him shall remain in force until the expiration of the terms of the - copyrights under the terms hereinbefore provided. - - During the existence of this contract, after the payment of the - license fee hereunder, the Æolian Company obligates itself to - prosecute diligently, at its own expense and by its own counsel, - in the name of the proprietors of the copyright, all infringers of - the rights granted to it, the Æolian Company. - - And the parties hereto mutually covenant and agree that all - provisions of this agreement shall be binding upon and enure to - the successors, executors, administrators and personal - representatives of both the parties hereto. - - In witness whereof the publisher has on the day and year first - hereinabove written hereunto set his hand and seal and the Æolian - Company has caused its name and corporate seal to be hereunto - affixed by its proper officer thereunto duly authorized. - - CLAYTON F. SUMMY CO. [SEAL.] - THE ÆOLIAN CO. [SEAL.] - - By E. S. VOTEY, - _Director_. - - Signature of publisher witnessed by-- - - J. F. BOWERS. - THEODOR WILD. - - - _Document No. 2._ - - Memorandum of agreement, made and entered into this 30th day of - April, 1902, by and between Clayton F. Summy Company, of Chicago, - in the State of Illinois, party of the first part, hereinafter - called the publisher, and the Æolian Company, a corporation - organized under the laws of the State of Connecticut, and having a - place of business in the city of New York, in the State of New - York, party of the second part, hereinafter called the Æolian - Company, witnesseth - - That whereas the parties hereto have, of even date herewith, - entered into an agreement whereby the Æolian Company is to have - the exclusive right for all perforated music sheets intended for - use in controlling-automatic musical instruments or machines for - playing musical instruments, in and to the copyrighted musical - compositions of which the publisher is the proprietor or as to - which he is the owner of any rights, and in and to all those other - musical compositions which may hereafter be protected by copyright - and the copyrights or rights in which may be acquired by him; and - - Whereas the parties hereto are desirous of entering into a further - agreement with reference to the matters and things expressed in - the above-mentioned agreement of even date herewith; - - Now, therefore, the publisher, for and in consideration of the - premises and the sum of $1 lawful money of the United States, to - him by the Æolian Company in hand paid, receipt whereof is hereby - acknowledged, does hereby covenant and agree that no charge shall - be exacted from or be due from the Æolian Company for the - manufacture or sale by it, or any of its customers, of any - perforated music sheets of either of the kinds aforesaid, for - playing any of the copyrighted musical compositions which are - owned or controlled, or which shall be hereafter owned or - controlled in whole or in part by the publisher, until a decision - of the court of last resort in a suit which is to be instituted - against some manufacturer or user, other than the Æolian Company, - of such perforated music sheets, for the purpose of testing the - applicability of the United States copyright laws to such - perforated music sheets, and not then unless such decision shall - uphold the applicability of the United States copyright laws to - perforated music sheets of the kinds aforesaid. - - And for and in consideration of the premises the Æolian Company - hereby covenants and agrees to pay all proper expenses of - conducting said suit for the purpose of testing the applicability - of the United States copyright laws to perforated music sheets of - the kinds aforesaid and that if the court of last resort shall in - such suit decide that the United States copyright laws are - applicable to such perforated music sheets, then and in such case - and from that time forward the Æolian Company will keep books of - account, render statements, and pay royalties as provided by the - aforesaid agreement of even date herewith, but shall be free from - obligation to make payments for the past. - - And it is mutually understood and agreed by the parties hereto - that neither party hereto is to be obligated in any way by any - other provisions of this agreement, or of the aforesaid agreement - of even date herewith, until the Æolian Company shall notify the - publisher that a number of copyright owners satisfactory to the - Æolian Company have made similar agreements with said company. - - And the parties hereto mutually covenant and agree that all the - provisions of this agreement shall be binding upon and enure to - the successors, executors, administrators, and personal - representatives of both the parties hereto. - - In witness whereof the publisher has on the day and year first - hereinabove written hereunto set his hand and seal, and the Æolian - Company has caused its name and corporate seal to be hereunto - affixed by its proper officer thereunto duly authorized. - - CLAYTON F. SUMMY. [SEAL.] - THE ÆOLIAN CO. [SEAL.] - - By E. S. VOTEY, - _Director_. - - Witnessed by-- - - J. P. BOWERS. - THEODORE WILD. - -Both of those contracts are dated April 30, 1902. After the making of -those contracts, the action known as the White-Smith suit against the -Apollo Company was commenced in the circuit court of the United States -for the southern district of New York. That case went to a hearing -before Judge Hazel. Right at this point I may interpolate that I now -ask the chairman and the members of this committee to investigate, if -they feel they have the power, into those contracts, to summon -witnesses, if necessary, to determine what contracts have been made, -with what music-publishing houses, by this particular concern, so that -the committees may be able to determine for themselves whether this -concern and the publishing houses with which they are affiliated can, -in the event that this bill becomes a law, have an absolute monopoly -of the vast majority of the publications, in so far as they may be -reproduced into perforated music rolls or other mechanical devices for -reproducing the sounds. - -Mr. CURRIER. I want to ask you the question that I asked Mr. Davis a -moment ago: Would the people whom you represent object to paying a -reasonable royalty to the author or proprietor of the musical -composition if that right was given to all upon the same terms? - -Mr. O'CONNELL. Primarily, I appear, sir, for the independent -manufacturers of automatic piano players. Here, to-day, as I -understand, I am expected to speak for the interests of the -independent cutters of music rolls as well. Speaking for the clients -that I originally and personally represent, I answer that provided you -have the power to pass such a law we have no objection to paying a -reasonable royalty to the composers, provided we are put on an equal -basis with everybody else and provided our business interests are -protected. That is our attitude. We do not wish to be unfair to -anybody. - -The CHAIRMAN. Protection in what way? How far do you wish that -protection to extend? - -Mr. O'CONNELL. In this way: It is difficult to devise a plan--in -answer to the question of Mr. Currier--which will protect us, and for -this reason---- - -Mr. CURRIER. I realize the difficulties. - -Senator SMOOT. You have no idea of being protected any more than any -other concern? - -Mr. O'CONNELL. No, sir; we want to have only the same rights as -anybody else. - -You must understand, Mr. Chairman, that the Æolian Company is by far -the largest manufacturer of automatic piano players. If they control -the output of the device, without which those players can not be -operated, it is perfectly clear that it is the easiest thing on earth -for them to put one after the other of the independent manufacturers -down and out. I have not thought up a plan which could be devised to -protect them, because that is a very difficult thing to do, and the -time given for preparation has been extremely brief. - -In line with what Mr. Herbert said a few moments ago, we are perfectly -clear that neither Mr. Herbert nor Mr. Sousa can be controlled by this -combination. They are too big. But they are the only composers in the -United States to-day of whom that can be said. - -Mr. BURKAN. How about De Koven, and how about Julian Edwards; and how -about---- - -Mr. O'CONNELL. That being so, it seems strange to me that those -eminently respectable gentlemen, Mr. Herbert and Mr. Sousa, have been -put forward here as advocates of this bill, when the very men who will -be the greatest gainers by it have sedulously kept themselves in the -background, and do not appear to be represented here, even nominally. - -What will be the result if these features of the bill are put through? -Mr. Herbert and Mr. Sousa will get some benefits from it. Ninety-nine -per cent of the composers will get absolutely nothing from it. The -Æolian Company and the concerns affiliated with it will have millions -of dollars turned into their coffers. And the net result is that the -public will pay and the independent manufacturers whom we represent -will either go out of business, or will have to transact business in -such a way that it will be without any profit to themselves, or -entirely on sufferance. That is the broad, general question that is -before you, gentlemen, of these committees. We only want a square -deal. We want no rights that anybody else does not get. - -But we do not want to have others put in a position where they can -take away our right to do business on a reasonable basis. That being -the broad general proposition, I shall expect during the summer -vacation to supply your committees with as much information as I -possibly can on these various matters, and I ask the committees to do -what they can toward investigating how far I am right in this matter. -I can say that those charges have been made in the White-Smith suits -in the circuit court and circuit court of appeals, and they have not -been answered in anyway by the representatives of the monopoly to -which I refer, nor have they been denied. - -On the bill itself---- - -Mr. CHANEY. What section? - -Mr. O'CONNELL. I will take it from the beginning, if you please. - -The CHAIRMAN. Before you proceed with the bill: Have the companies -that you represent made any effort to secure contracts with Mr. Sousa -and Mr. Herbert and the other composers that have been mentioned? - -M. O'CONNELL. The companies that I represent do not make contracts -with composers. The companies that I represent primarily, the 10 -manufacturers, do not cut perforated music. They buy it. They buy it -either from the Æolian Company, or from one of the many independent -manufacturers of such rolls. So that we are not brought into direct -contact with Mr. Sousa, Mr. Herbert, or any composers. We want to be -in a position where the independents will not be forced out of the -field, or where we can be forced to buy this perforated music at an -exorbitant figure, or where they can be in the position of refusing to -give it to us at any price. - -The CHAIRMAN. These companies, as I understand, under existing law -simply go to the store offering the music for sale, which is music, -and then put it upon the rolls. Is that right? - -Mr. O'CONNELL. I do not know what the particular arrangements are that -the composers have with the publishers, or the publishers with the -music companies. - -The CHAIRMAN. Under existing law, is it necessary for the manufacturer -to do more than I have stated? - -Mr. O'CONNELL. Under the existing law, as it has been decided in the -White-Smith suit, the cutter of music rolls can go anywhere and take a -piece of music, copyrighted or uncopyrighted, and cut the roll from -it. That is my understanding of it, without paying any royalty to -anybody. - -The CHAIRMAN. And the gentlemen and concerns you represent desire the -law to remain in that condition? - -Mr. O'CONNELL. I have not said that, sir. What we say is this: We want -to be able to go out in the open market and buy our music rolls. We -will not be in that position if this bill goes through, because with -these contracts that I speak of we can not go into the open market, as -there will be no open market whatever. The distribution of these music -rolls will be in the hands of one house, and that house can put its -own price on them, or refuse to sell them to us at all at any price. -In other words, in passing this bill in its present shape, you are -fostering too great a centralization of power, or putting an absolute -monopoly into the hands of one group of men. That is our objection. If -some means can be devised whereby we get in on the same basis, whereby -we can buy our records or our perforated music sheets as Mr. Currier -said, on the same terms as anybody else, we have no fault to find, -then. - -The CHAIRMAN. How can law prevent Mr. Sousa from making a contract -with the Æolian people or any other concern that he may desire to deal -with? - -Mr. O'CONNELL. The law can not prevent him from making any contracts -he chooses with them, provided he does not contravene the law of the -land itself. He can make any contract he chooses for any price he -chooses. But there is the unfortunate situation: Mr. Sousa and Mr. -Herbert, and gentlemen situated as they are, naturally ought to be in -a position, I suppose, where they have liberty of contract; but in -passing a law the greatest good to the greatest number must always be -considered. If you pass this bill you do some good to these gentlemen, -you do a great deal of good to the monopoly, you do absolutely no good -to the vast majority of the authors, and you do a great deal of damage -to a great many millions of dollars interested and invested in -manufacturing industries in this country, even if you leave the -purchasing public out of consideration altogether. It is a question of -which you will take, unless some means can be devised to eliminate -those particular features. - -Taking the bill itself, it was stated here by Mr. Putnam the other day -that the object of this bill was to give a copyright on music rolls as -to musical compositions composed after the passage of this act. That -was my understanding of what he said. - -Mr. PUTNAM. Copyrighted afterwards, I think I said. - -Mr. O'CONNELL. Then I assumed, from the remarks made by some members -of the committee, that they considered the act to apply only to -compositions originally composed after the passage of this act, and -originally copyrighted after the passage of this act. I do not -believe, therefore, that the members of the committee are aware of the -very many peculiar features of the bill in that regard. - -Mr. CHANEY. The bill is only submitted as a tentative proposition, to -get at the right thing. It is not the result of our genius at all. It -belongs to some of the rest of you fellows. - -Mr. O'CONNELL. It does not belong, Mr. Chaney, to me or the rest of my -fellows; and we are here trying to oppose the genius of the other men, -the specially interested ones who did submit it to your committee. -[Laughter.] - -Mr. CHANEY. Well, we fellows are not trying to shut out you fellows. - -Mr. O'CONNELL. I know that you are not, and all we want is a fair, -full, and complete hearing. - -Taking first, Mr. Chairman and gentlemen of the committees, -subdivision F of the first paragraph. There is still a subdivision B -in that subdivision F: - - To make any arrangement or setting of such work, or of the melody - thereof, In any system of notation. - -Mr. CHANEY. On page 2? - -Mr. O'CONNELL. I am reading from the House bill. - -Mr. CHANEY. We have the Senate bill here. What is the section? - -Mr. O'CONNELL. Section 1, subdivision F. - -Senator SMOOT. It is on page 2. - -Mr. O'CONNELL. It gives the right-- - - to make any arrangement or setting of such work, or of the melody - thereof, in any system of notation. - -Then it goes on (subdivision G): - - To make, sell, distribute or let for hire any device, contrivance, - or appliance especially adapted in any manner whatsoever to - reproduce to the ear the whole or any material part of the work - published and copyrighted after this act shall have gone into - effect, or by means of any such device or appliance publicly to - reproduce to the ear the whole or any material part of such work. - -Mr. WEBB. Before you leave that, do you not think that section G -prohibits the sale of the instrument itself, rather than the -reproduction of the music or the work? You are a lawyer. - -Mr. O'CONNELL. It would seem that it prohibits both, sir. - -Mr. BURKAN. We will submit an amendment to cover that. - -Mr. WEBB. It seems that that is a prohibition of the sale of any -instrument. - -Mr. CURRIER. Clearly so. - -Mr. O'CONNELL. I have not seen the proposed amendment, because it was -only handed in this morning after we got here. - -Turning to section 6, it says--and this is very important: - - That additions to copyrighted works and alterations, revisions, - abridgments, dramatizations, translations, compilations, - arrangements, or other versions of works, whether copyrighted or in - the public domain, shall be regarded as new works, subject to - copyright under the provisions of this act. - -Now, if you please, turn to section 18, subdivision B. It gives a -copyright for fifty years after the first publication, and you will -find at line 13 of the House bill, which I hold, that it gives a -copyright for fifty years after the date of the first publication, in -"any arrangement or reproduction in some new form of a musical -composition." Then, you will find further down, in subsection C of -that section 18, where it gives a copyright for the lifetime of the -author and for fifty years afterwards in the case of an original -musical composition, thus making it clear, from a reading of all those -sections together, that first, where there is an original composition, -say of Mr. Sousa or Mr. Herbert, which has been already copyrighted -under the present act, under the provisions of this new act they have -the right to prohibit the cutting of music rolls for the period of -fifty years from those original compositions which they have already -copyrighted; and, secondly, the most dangerous provision of the bill, -that any music-cutting establishment--this monopoly, for instance--can -take any old work, that has never been cut to this day into a music -roll, which is in the public domain--one of Beethoven's sonatas, or -the Star Spangled Banner, if that has not already been done--and they -can cut a music roll and can copyright that, and they can get the -exclusive right because of such cutting, notwithstanding that -everybody is free to perform that particular piece in every other way. -This bill gives the right to cut it into a music roll and get a -copyright for fifty years after the first publication in the form of a -perforated music sheet. That, I submit, Mr. Chairman and gentlemen, is -a very iniquitous provision--very iniquitous. - -Mr. CHANEY. That starts in on page 4 and concludes on page 14? - -Mr. O'CONNELL. Yes. - -Mr. CHANEY. I think you are right about that. - -Mr. O'CONNELL. Thank you for agreeing with me. - -Then, there is another provision of section 19, which was covered -yesterday by Mr. Ogilvie, in regard to book publishing, to which I -have the same objection, and that is that where the author dies his -family can not get the continued copyright for fifty years unless the -assignee or licensee shall join in the application for such renewal -and extension. Some provision ought to be made there so that in case -the licensee or assignee refuses, at the instance of the widow or -orphans of the author, to apply for an extension of the contract, the -widow and orphans shall have the right to proceed independently of the -assignee or licensee. As Mr. Ogilvie very well said, where the -publisher has the right to reproduce on the payment of a royalty of 20 -per cent he may very well say now, after the author dies, "I will not -apply with you for this extension unless you permit me to pay you -merely a royalty of 2 per cent." - -I simply point that out as one of the injustices of the act, as -showing that only special interests apparently seem to have been -considered in the framing of the bill. - -There is another question there, which will probably be covered by Mr. -Walker in what he has to say to the committee afterwards, and that is -as to the constitutionality of these provisions as a whole. I will -merely point out what the Constitution provides in that respect. - -Article 1, section 8, subdivision 8, gives the right to Congress-- - - to promote the progress of science and the useful arts by securing - for limited times to authors and inventors the exclusive rights to - their respective writings and discoveries. - -It has been held, in the case of the Lithograph Company v. Sarony, 111 -U.S., 53, at page 58, that the only thing which appears to infringe -upon copyrighted matter would be-- - - some visible form of writing, printing, engraving, etching, by - which the ideas in the mind of the author are given visible - expression. - -Mr. Sousa pointed out the ordinary system of notation with the various -notes, and he also held up to you a music roll with the perforations, -slits, dots, and dashes, and he claimed, apparently, that those slits, -dots, and dashes are visible and can be read. I doubt very much if Mr. -Sousa can tell one note from another there. - -Mr. CURRIER. I could tell the notes on that sheet just as well as I -could on the other. [Laughter.] - -Mr. O'CONNELL. All I have to say then is that apparently music is not -one of your many accomplishments. [Laughter.] Some of us can not read -Sanskrit, nor Hebrew, nor Greek, perhaps, but that does not mean that -we can not read at all, nor that such languages can not be read. There -are many of us that do understand the ordinary diatonic notation of -music, and many of us that do not. The fact that the vast majority of -people can not read music does not prevent it from being a writing. - -The CHAIRMAN. Do you contend that it is beyond the power of Congress -to make that roll copyrightable? - -Mr. O'CONNELL. My contention is, sir, that it is absolutely beyond the -power of Congress to make that roll copyrightable. - -Senator SMOOT. Are there people that can read that roll--that is, the -same as Mr. Sousa can pick up that piece of music there [indicating] -and read that music? In other words, every slit or cut or dash in that -paper represents a note, does it not, just the same as the notes are -differently represented upon the paper that Mr. Sousa exhibited--or a -musical tone is represented? - -Mr. O'CONNELL. It may be, but I do not think that there is a person, -firm, or corporation in the United States or elsewhere to-day that can -take that music roll and tell you what particular note any particular -slit or dot or dash represents. If I am wrong, I want to be corrected. - -Mr. CHANEY. It is a notation of tone, then? - -Mr. O'CONNELL. It is simply by relation to what is called the tracker -board. This roll goes over a tracker board in which there are little -holes. Each hole in the tracker board is connected with a little tube -which carries the air through a bellows and to a device which strikes -a hammer. As this roll goes over the tracker board of the instrument, -when it strikes a hole corresponding to any particular one of those -slits there is an ingress of air, because there is a vacuum -underneath. That little tube is connected with a hammer which strikes -the note A, B, C, and so forth, whatever it might be. They are -differently arranged in different rolls. The roll that will play in -one instrument will not play in another; and you can see, gentlemen, -that there is a different-sized roll, different-sized slits -[exhibiting sample rolls] notwithstanding that they are both the same -piece of music, composed by Mr. Sousa. [Laughter.] - -Senator SMOOT. In looking at those two rolls, there is no question but -what anybody can tell that they are the same piece of music. - -Mr. O'CONNELL. But look at the difference across---- - -Senator SMOOT. That is only as to the size. You can take that same -sheet of music that Mr. Sousa exhibited and have it four inches wide -or you can have it eight inches wide, and it would be just the same -music. - -Mr. O'CONNELL. But can anybody tell me, if you please, sir, or will -anybody tell us, what those notes are? - -Senator SMOOT. That is the question that I asked you. - -Mr. BOWKER. I can, by taking a scale corresponding to that instrument -and putting it on the paper. By doing that you can tell what the note -is. - -Mr. WALKER. I was counsel in the Apollo case, and the question whether -those rolls could be read by inspection was litigated at great expense -in that case, and the circuit court of appeals for the second circuit -decided, a week ago last Friday, that the overwhelming preponderance -of the evidence was that they could not be read. - -Mr. WEBB. And further, that that is not a copy of the music from which -it is taken. - -Mr. WALKER. They so decided. Judge Colt decided in 1888 that these -perforated rolls are not copies of music filed in the office of the -Librarian of Congress. That decision was always acquiesced in until -the Æolian Company invented its ingenious scheme to monopolize the -business of mechanical musical instruments; and in pursuance of that -event they endeavored to secure from the circuit court of appeals in -the southern district of New York a reversal of Judge Colt's decision. -After years of litigation the circuit court of appeals for the second -circuit affirmed Judge Colt's decision, and held that these do not -infringe the copyright on the sheet music, and, as the foundation for -that holding, they stated the overwhelming preponderance of evidence -was that they could not be read by anybody; and they stated for that -reason that they were not copies, and were not infringements. - -Mr. O'CONNELL. I have been informed, while Mr. Walker was speaking, in -response to what Mr. Bowker said, that in this White-Smith suit the -complainants tried in every possible way to prove the truth of the -assertion which Mr. Bowker has just made, and that they utterly and -totally failed to sustain that assertion that those sheets could be -read, even with the use of any kind of a scale. That has just been -stated to me by a gentleman who is interested. - -If you please, Mr. Chairman, the portion of the decision relating to -that particular point has been handed to me, and here it is---- - -Mr. CHANEY. We have that decision. - -Mr. O'CONNELL. I want to call attention briefly to just this point in -it: - - It is not designed to be read or actually used in reading music as - the original staff notation is; and the claim that it may be read, - which is practically disproved by the great preponderance of - evidence, even if it were true, would establish merely a theory of - possibility of use as distinguished from an actual use. - -In deciding those cases, courts and committees of Congress do not act -on possibilities. - -Here is another method of reproduction [exhibiting disk] of the same -march of Mr. Sousa's. It is for use in a music box. I do not know what -the name of the music box is. The disk was only handed to me this -morning. That shows another method of reproducing, and I do not -suppose that even Mr. Bowker, with the aid of a scale, can read the -notes on it. [Laughter.] - -Again, there is still another one here [exhibiting cylinder], which -has been handed to me by Mr. Walker, a phonograph record, which he -unfortunately says he broke, and which contains the same march by Mr. -Sousa. And I do not believe that even Mr. Bowker, with the aid of any -kind of a scale, can read that. - -Mr. BOWKER. My name has been mentioned, and may I say that the -character of the phonograph record which uses the very word "graph," -meaning "writing," represents the earliest form of writing, that of -incised character writing. - -Mr. CHANEY. Of the time of Rameses. - -Mr. DAVIS. May I state that it remained for the inventor to first -devise that scale to which that perforated music was made, and, -second, to devise a machine which would interpret that music to Mr. -Currier, or all of the other members of the public, as a medium by -which any music could be read. That is the only practicable way of -reading it, and that was left to the inventor. A mere reversal of that -scale, to read backwards, would not be requisite. - -Mr. SOUSA. I would like to ask the gentleman a question. What value -would these various records have if my march was not on them--if I had -never written that march? - -Mr. O'CONNELL. I will say to Mr. Sousa with perfect frankness that the -only object of that particular record is to produce his march. -[Laughter.] - -Mr. SOUSA. Without my consent. - -Mr. O'CONNELL. I shall not try to hedge. I merely state facts. - -Mr. CHANEY. Do you think you should do that without compensating him -for the genius he displayed? - -Mr. O'CONNELL. Very early in my remarks I disavowed any such -intention. I did say that we were in the position--the independent -manufacturers that I represent--where we could be forced to the wall -because of these contracts, and that the resulting benefits to Mr. -Sousa and Mr. Herbert, if Congress had power to and did pass such an -act, would be vastly offset by the great detriment to our -manufacturing interests and to the public. - -While I am on that point I would ask leave to digress and to submit -also a copy of a letter from the Æolian Company to the Chicago Music -Company, dated the 5th of May, 1902, and offer it in evidence here. - -(The letter referred to is as follows:) - - THE ÆOLIAN COMPANY, - _New York, May 5, 1902_. - - The CHICAGO MUSIC COMPANY, - _Music Publishers, Chicago, Ill_. - - DEAR SIRS: Pursuant to the provision of the agreement granting us - the exclusive right under your United States copyrights for all - perforated music sheets intended for use in controlling automatic - musical instruments and machines for playing musical instruments, - we hereby notify you that a number of copyright owners - satisfactory to us have made with us agreements similar to our - agreement with you. From this date, therefore, our agreement goes - into effect. - - Looking forward to profitable and pleasant business relations, we - remain, - - Yours, truly, - - THE ÆOLIAN COMPANY, - E. R. PERKINS, _General Manager_. - -I now ask you, Mr. Chairman and gentlemen, to turn to section 15 of -the bill, found at page 11 of the House bill, which would seem to me -to be rather ambiguous. It provides that the owner of the copyright -may commence proceedings and so forth within thirty days, but that he -has a whole year within which to complete his copyright. Now, that -means that he does not have to put his mark on it, I suppose, and -perhaps an independent manufacturer may go ahead for a year, or, -rather, for three hundred and sixty-four days, believing that he has -the right to do so, and then, on the three hundred and sixty-fifth day -the owner of the copyright completes his record, and he is promptly -sued for all that he has done for the past year. True, the act says -that in such case no action shall be brought for infringement of the -copyright until the requirements have been fully complied with; but -that merely says that he can not commence the action until he has -complied with the act. It does not say that after he has finally -complied he can not recover for the infringement during the full year -within which he practically permitted his copyright to lapse. - -Mr. PUTNAM. Do you understand that he is not obliged to give notice -during the intervening period? - -Mr. O'CONNELL. I am speaking of the one-year provision. - -Mr. PUTNAM. The works that are issued carry a notice, do they not? You -did not understand that it was supposed that the works issued were to -be exempt from the notice upon them of copyright, did you? - -Mr. O'CONNELL. I would like to know what is the reason for the -provision in question, then. If there is no reason for it, it should -not be there. - -Mr. CHANEY. Then you would strike out all of section 15? - -Mr. O'CONNELL. Why not leave the act as it is, and provide that -everything must be done before publication, instead of giving them a -year in which they might possibly deceive the public? - -Mr. PUTNAM. Mr. O'Connell has asked what is the reason for this -section. I will ask you, Mr. O'Connell, if you have observed that the -section reads, this section 15, that "if, by reason of any error or -omission the requirements prescribed above in section 11 have not been -complied with," etc. Now, notice that section 11 does not refer to the -requirement of notice upon the published works, but of the requirement -of deposit and registration in the copyright office. - -Mr. O'CONNELL. In answer to that I will say that the Patent Committees -of both Houses are probably aware of the fact that there have been -means found and adopted for many, many years to keep applications for -patents pending in the Patent Office and still not have them outlawed. -It would be the easiest thing in the world for an applicant for a -copyright to commit irregularities for that very purpose. - -Another point: In section 18, subdivision C, there may be a copyright -obtained under an assumed name. I confess that I do not see the reason -for that. - -Mr. CHANEY. Mark Twain, for instance, instead of Samuel L. Clemens? Is -there objection to that? - -Mr. O'CONNELL. I do not see the reason for it, while it might be all -right in the particular instance which you suggest. Of course if it is -limited to giving a copyright to a man under his pen name, that might -be all right. - -Mr. CHANEY. Is not that the purpose of it? - -Mr. O'CONNELL. It may be the particular purpose of it, but I think the -section is so broad that it might include almost anything from Genesis -to Revelations. - -Mr. PUTNAM. Where is that in section 18, that you may copyright under -an assumed name? Will you state where you find that in that section? - -Mr. O'CONNELL. On page 15: - - The copyright in a work published anonymously or under an assumed - name shall subsist for the same period as if the work had been - produced bearing the author's true name. - -It is at the end of section 18. That would seem to me to give the -right to copyright under an assumed name. - -Mr. PUTNAM. Oh, yes. - -Mr. O'CONNELL. As to the penalties, Mr. Chairman, I think there never -has been an act passed where the penalties have been so severe. I will -ask you, Mr. Chairman and gentlemen, to turn to section 23, on page -17, of the bill and I will point out as far as I may where it differs -from the old act. In the first place, subdivision A gives the right to -an injunction restraining such infringement. As to the damages, in -addition to the injunction, it gives the copyright proprietor such -damages as he may have suffered. In addition to the injunction and the -damages, it gives him the right to all the profits which the infringer -may have made from such infringement. And now comes the extraordinary -provision. It says: "And in proving profits the plaintiff shall be -required to prove sales only"--gross sales, I suppose it meant -thereby--"and defendant shall be required to prove every element of -cost which he claims." - -That provision is revolutionary. In every case, both at law and in -equity, where the plaintiff has to prove either damages or loss of -profits, it is absolutely essential that he prove the actual damages -or the actual profits. By that is not meant gross profits, but the net -profits which the infringer has made. Under this act all that the -plaintiff is required to do would be to prove that the alleged -infringer sold so many goods for such and such a price, and the onus -or burden of proof is entirely on the defendant to establish all the -items of the expense incurred in producing the infringing article. The -old act has no such provision. - -Next it says that in lieu of damages and profits the court---- - -Mr. CHANEY. It says "actual damages." - -Mr. O'CONNELL. It says that the court, instead of actual damages and -profits, may award an arbitrary sum, not less than $250 nor more than -$5,000, and it says that that sum shall be made up in this way: For -every copy of a music roll or a phonograph record, $10. The old act -provided for practically the same kind of a record, the same genesis -of things, $1. Why, Mr. Chairman and gentlemen, should you impose a -penalty of $10? The old act has it that paintings, statues, or -sculptures should pay a penalty of $10. It also has it that prints, -etc., should pay $1. Why should you put a music roll into the category -of paintings, statues, or sculptures at $10, rather than into the -other category? - -Mr. BURKAN. We will submit an amendment making that $1. The music -publishers will submit an amendment making that $1. - -Mr. O'CONNELL. I thank the music publishers for considering us, even -in the very slightest degree. - -Five thousand dollars would seem to be the limit in any one suit, but -suppose the complainant brings 20 or 50 different suits in different -jurisdictions, which he would be permitted to do under other sections -of the act, which I will point out presently. - -Subdivision third of that section 23, says: "In the case of a dramatic -or musical composition not less than $100 for the first and not less -than $50 for every subsequent infringing performance." - -I submit, Mr. Chairman and gentlemen, that we are also liable to that -penalty as well as the $10 a roll, because these very astute gentlemen -who are back of this bill, on the very first infringement will claim -that any performance on an automatic piano player whereby Mr. Sousa's -march or Mr. Herbert's composition is played on a pianola or one of -the independent pianos, is a musical performance, and that for the -first performance, in addition to the $10 a roll, we are liable to be -fined $100, and for each subsequent performance $50. I think that this -section, if the other provisions of the bill are to remain in, should -be amended so as to say that this shall not include a performance on a -perforated music roll or on phonograph or music machine disks. - -Some other extraordinary provisions of the penalties are, first, this -subdivision C of the fourth paragraph of section 23 provides that the -infringer is-- - - to deliver up on oath to be impounded during the pendency of the - action, upon such terms and conditions as the court may prescribe, - all goods alleged to infringe a copyright. - -That is an extraordinary provision. They get an injunction pendente -lite, and not alone that, but we have to deliver up to them everything -pendente lite. The injunction is not good enough, and we have to give -the goods to them. - -Next, it says (subsection D): - - To deliver up, on oath, for destruction all the infringing copies - or devices, as well as all plates, molds, matrices, or other means - for making such infringing copies. - -It may be proper, as in the old act, to direct the infringer to deliver -up the copies or the plates from which they are made, but it is -absolutely revolutionary to direct that the machinery be delivered up, -because that machinery may be useful for perfectly legitimate purposes, -and yet it must be delivered up for destruction. - -It also provides that all those results can be obtained in a single -action. - -As to the jurisdiction of courts in suits of this kind, here is the -provision of the bill: - - SEC. 32. That all actions arising under the copyright laws of the - United States shall be originally cognizable by the circuit courts - of the United States, the district court of any Territory, the - supreme court of the District of Columbia, the district courts of - Alaska, Hawaii, and Porto Rico, and the courts of first instance - of the Philippine Islands. - - Actions arising under this act may be instituted in the district - of which the defendant is an inhabitant, or in the district where - the violation of any provision of this act has occurred. - -Let us assume that my client, a manufacturer of an automatic piano -player in the city of New York, ships one of these with a box of music -rolls to Manila or some inland town in the Philippines. If it is an -infringement, the infringement has occurred in the Philippines, -because the music roll is not published until it is taken out of the -box. According to this act they have a right to commence an action in -the Philippine Islands. According to another subsection of section 32 -they can send the process to the marshal in the southern district of -New York, and that marshal serves the process, and thereupon the court -of first instance in the Philippine Islands has jurisdiction, and the -defendant has to go to the Philippine Islands to defend the case. And -a still greater objection is that the complainant in such an action -may commence a hundred concurrent suits and distribute them in every -court in the United States, the Territories, Porto Rico, and the -Philippines. - -Mr. CHANEY. The idea, of course, is to put it within the reach of -these people who are injured. - -Mr. O'CONNELL. Does that put it within the reach of the New York -corporation, or is it part of their proper proceedings to get damages -or redress that they should go to the Philippine Islands to sue my -clients who are domiciled in New York, where the Æolian Company is -domiciled, and make us go over there to defend the suit? - -Mr. CHANEY. No; but suppose the person injured lives in the Philippine -Islands? - -Mr. O'CONNELL. If that is the conclusion, if you simply want the -plaintiff to sue in the jurisdiction where either the real plaintiff -or the defendant is an inhabitant, then that raises another question. - -Mr. CHANEY. Evidently that is what has been intended. There was no -purpose of anybody to take all the fellows out of New York, because -that is a splendid place to live, you know. [Laughter.] - -Mr. O'CONNELL. But we have to come to the fountainhead occasionally. -[Laughter.] - -Mr. WEBB. The act distinctly says "In the district where any violation -of this act has occurred." - -Mr. O'CONNELL. Under the old provision with regard to infringement, -you could only sue a defendant where you found him, in the district -where he resided. That is the provision in relation to patents, and -the provision of the bill as the old act stands. Why should this new -provision be inserted? Perhaps the members of this committee will be -able to determine. - -Mr. CHANEY. I take it that that was for the purpose of making it -convenient to the person injured, or the parties injured. - -Mr. O'CONNELL. That might be all right, if the party injured was a -resident of the Philippines. - -Mr. CHANEY. Yes. - -Mr. O'CONNELL. Or of the Sandwich Islands, or Porto Rico? - -Mr. CHANEY. That is the idea. - -Mr. O'CONNELL. I think you will find that there are none of the owners -of any of these copyrights living in any of those districts; none of -them. I do not suppose that Mr. Sousa intends to change his residence -just at present, or Mr. Herbert either. I think they will be found -doing business here right along. [Laughter.] - -Section 34 provides-- - - That no action shall be maintained under the provisions of this act - unless the same is commenced within three years after the cause of - action arose. - -Why not leave that the old two-year limit? What is the necessity for -three years? There is no reason for that. - -Then, look at the provision in section 35. - -Mr. CHANEY. Is there a disadvantage in putting it three years? - -Mr. O'CONNELL. Why should it be extended to three years? - -Mr. PUTNAM. Is it not true that the present limitation is only for -actions for penalties or forfeitures, whereas this is a general -limitation on all actions, including civil actions for infringement, -so that although it enlarges by one year the criminal action, it -reduces the term that the complainant at present has in his civil -action? This now applies to all actions. Did you notice that, Mr. -O'Connell? - -Mr. O'CONNELL. I think that the present provision relating to kindred -actions of this kind is a two-year statute of limitations, and it has -been found ample for a great many years, for all purposes, to protect -patentees, inventors, and everybody else. - -Look at section 35: - - That in all recoveries under this act full costs shall be allowed. - -That is to say, where the complainant recovers he must get from the -defendant, and the court must allow the complainant, full costs. Let -us assume a case where the defendant gets the bill dismissed. That is -not a recovery. He does not get a recovery, but there is no provision -giving the defendant in that case full costs. Oh, no. They are only -careful of the complainant where he recovers; but where his action -fails there is no provision giving the defendant full costs. - -Mr. WEBB. You would strike out "recoveries" and insert "suits?" - -Mr. O'CONNELL. If you want to do it that way. You will not be then -giving one side any more than the other. But I think that provision -should not be in there at all. I think the court should have full -discretion in the award of costs, these actions being mostly equitable -actions, and the general rule being that in a court of equity the -awarding or denial of costs is in the discretion of the court. - -I see no reason why the jurisdiction of the courts should be limited -by a provision of this kind. I think it should be left to the courts -to say in all cases whether costs should be awarded or withheld, and -how much costs should be awarded; although I think there should be a -provision to the effect that in the case of an action wilfully -brought, and where there is no recovery--brought simply for the -purpose of intimidation, where there is no reasonable ground for -recovery, simply to get hold of the man's business and keep him from -doing business--that there should be some provision in there giving a -penalty against the complainant in such an action as that. I have only -thought of that at this moment, but I think it is a good suggestion to -make to the committee. - -Gentlemen, I thank you for the time you have given me, and I have no -more to say on the subject. I again ask, however, as I did at the -outset, that on these contracts and on the question of the monopoly in -the hands of this concern and its associates, the committee should -take proofs such as may be necessary to determine what the situation -is. All I ask on behalf of the independent manufacturers of automatic -musical instruments in the United States is that we should have a fair -show, that our business should have the same protection as any other -business has, and that you gentlemen may not do anything which will -help this great centralization and put it in the power or a monopoly -to ruin our business. - -Mr. PUTNAM. I understand that Mr. H. N. LOW is by agreement to speak -next. - - -STATEMENT OF H. N. LOW, ESQ., OF WASHINGTON, D.C. - -Mr. LOW. I appear for the manufacturers of the music rolls and of -instruments operated by such rolls. - -Mr. CURRIER. I understood that the music-roll people had had over two -hours now. - -Mr. LOW. Pardon me. My remarks will be very brief. - -Mr. CURRIER. The talking-machine people are to have thirty minutes, -and the committee can not sit here a very great while. - -Mr. LOW. My suggestions will be very brief. - -The ACTING CHAIRMAN. We have to adjourn in a little while, and the -gentleman who preceded you exceeded his time. - -Mr. LOW. Then to merely supplement the remarks of the gentleman who -has preceded me, I ask leave of the committee to submit two more -contracts, similar to the ones that he has submitted, with the Æolian -Company in the carrying out of the agreement that we allege. My -information is that that agreement now embraces practically the whole -music-publishing trade, and those outside of that agreement are very -small manufacturers, and the trust or combination is just about -complete and ready for this legislation. I submit that this -legislation is most dangerous, and that this pretended revision of the -copyright law is a cloak for something that is very wrong. - -[The contracts referred to by Mr. LOW are as follows:] - - Memorandum of agreement made and entered into this 30th day of - April, 1902, by and between Chicago Music Company, of Chicago, in - the State of Illinois, party of the first part, hereinafter called - the publisher, and the Æolian Company, a corporation organized - under the laws of the State of Connecticut, and having a place of - business in the city of New York, in the State of New York, party - of the second part, hereinafter called the Æolian Company, - witnesseth: - - That whereas the publisher is the proprietor of certain copyrights - for musical compositions and the owner of rights in copyrights for - other musical compositions; and - - Whereas the Æolian Company is engaged in the business of - manufacturing and selling automatic musical instruments controlled - by perforated music sheets, and in manufacturing and selling - machines for playing keyboard musical instruments, which machines - are controlled by perforated music sheets, and in manufacturing - and selling perforated music sheets for such automatic musical - instruments and machines; and - - Whereas the Æolian Company is desirous of acquiring the exclusive - right for such perforated music sheets in and to all the - copyrighted musical compositions of which the publisher is the - proprietor, or as to which he is the owner of any rights, and of - all those other musical compositions which may hereafter be - protected by copyright, and the copyrights for which or rights in - which may be acquired by him; - - Now, therefore, the publisher, for and in consideration of the - premises, and of the sum of $1, lawful money of the United States, - to him paid by the Æolian Company, receipt of which is hereby - acknowledged, and for and in consideration of the true and - faithful performance by the Æolian Company of its covenants - hereinafter made, does hereby sell, assign, transfer, and set over - unto the Æolian Company the exclusive right for all perforated - music sheets of the kinds aforesaid in and to all the copyrighted - musical compositions of which the publisher is the proprietor, or - in the case in which he is the owner of any less rights, to the - extent of said rights, and does hereby covenant and agree with the - Æolian Company to give and secure to it the exclusive right in - like manner for all perforated music sheets of the kinds aforesaid - in and to all those other musical compositions which may hereafter - be protected by copyright, and the copyrights or rights in which - may be acquired by the publisher, except that if the Æolian - Company do not accept any price offered them within three months - after said offer, then the publisher may be at liberty to dispose - of the same otherwise. - - And the publisher, for the consideration aforesaid, hereby - covenants and agrees, so far as it may be reasonably in his power, - to protect the Æolian Company against any claim of any third - person in respect to any and all copyrighted musical compositions - which may be involved in this agreement, and the copyright of - which may be owned by the publisher. - - And the Æolian Company, for and in consideration of the premises, - hereby agrees that it will keep correct and true books of account - in which it will set down or cause to be set down entries of all - perforated music sheets made by it for playing the copyrighted - musical compositions owned or controlled by the publisher; that it - will on the 20th day of each and every January and July, during - the continuance of the manufacture and sale by it of the - perforated music sheets for playing such musical compositions, - render unto the publisher a correct and true statement of the - number, names, and other designations of such perforated music - sheets sold by it during the six preceding calendar months, and - that at the time of rendering each and every such statement it - will well and truly pay unto the publisher a license fee or - royalty of 10 per cent of the list prices made by the United - States publishers of the printed scores or copies of such musical - compositions, but never more than 50 cents for any one of such - perforated music sheets. - - And the parties hereto mutually covenant and agree that nothing - herein contained is to obligate the Æolian Company to pay any - license fee or royalty upon such perforated music sheets as shall - be made by it in the United States and sold or shipped to any - other country, unless it shall have been decided by a court of - competent jurisdiction of such other country that the copyright - laws of that country shall be applicable to perforated music - sheets of the kinds herein mentioned. - - And the parties hereto mutually agree and covenant that the term - "perforated music sheets" is not to be construed as covering the - controllers of those musical instruments which are generally known - as phonographs, or music boxes, or hand organs. - - Anything herein to the contrary notwithstanding, at the expiration - of thirty-five years from the payment of the first license fee - hereinbefore provided, the Æolian Company shall not be entitled to - licenses under the copyrights thereafter acquired by the - publisher, but all licenses existing under copyrights theretofore - acquired by him shall remain in force until the expiration of the - terms of the copyrights under the terms hereinbefore provided. - - During the existence of this contract, after the payment of the - license fee hereunder, the Æolian Company obligates itself to - prosecute diligently, at its own expense and by its own counsel, - in the name of the proprietors of the copyright, all infringers of - the rights granted to it, the Æolian Company. - - And the parties hereto mutually covenant and agree that all the - provisions of this agreement shall be binding upon and inure to - the successors, executors, administrators, and personal - representatives of both the parties hereto. - - In witness whereof the publisher has on the day and year first - hereinabove written hereunto set his hand and seal, and the Æolian - Company has caused its name and corporate seal to be hereunto - affixed by its proper officer thereunto duly authorized. - - CHICAGO MUSIC COMPANY, [SEAL.] - PLATT P. GIBBS. - THE ÆOLIAN COMPANY. [SEAL.] - By E. S. VOTEY, _Director_. - - Signature of publisher witnessed by-- - - J. F. BOWERS, - PAULINE FLAHERTY. - - - Memorandum of agreement made and entered into this 30th day of - April, 1902, by and between Chicago Music Company, of Chicago, in - the State of Illinois, party of the first part, hereinafter called - the publisher, and the Æolian Company, a corporation organized - under the laws of the State of Connecticut, and having a place of - business in the city of New York, in the State of New York, party - of the second part, hereinafter called the Æolian Company, - witnesseth: - - That whereas the parties hereto have, of even date herewith, - entered into an agreement whereby the Æolian Company is to have - the exclusive right for all perforated music sheets intended for - use in controlling automatic musical instruments or machines for - playing musical instruments, in and to the copyrighted musical - compositions of which the publisher is the proprietor or as to - which he is the owner of any rights, and in and to all those other - musical compositions which may hereafter be protected by copyright - and the copyrights or rights in which may be acquired by him; and - - Whereas the parties hereto are desirous of entering into a further - agreement with reference to the matters and things expressed in - the above-mentioned agreement of even date herewith; - - Now, therefore, the publisher, for and in consideration of the - premises and the sum of $1, lawful money of the United States, to - him by the Æolian Company in hand paid, receipt whereof is hereby - acknowledged, does hereby covenant and agree that no charge shall - be exacted from or be due from the Æolian Company for the - manufacture or sale by it, or any of its customers, of any - perforated music sheets of either of the kinds aforesaid, for - playing any of the copyrighted musical compositions which are - owned or controlled, or which shall hereafter be owned or - controlled in whole or in part by the publisher, until a decision - of the court of last resort in a suit which is to be instituted - against some manufacturer or user, other than the Æolian Company, - of such perforated music sheets for the purpose of testing the - applicability of the United States copyright laws to such - perforated music sheets, and not then unless such decision shall - uphold the applicability of the United States copyright laws to - perforated music sheets of the kinds aforesaid. - - And for and in consideration of the premises the Æolian Company - hereby covenants and agrees to pay all proper expenses of - conducting said suit for the purpose of testing the applicability - of the United States copyright laws to perforated music sheets of - the kinds aforesaid, and that if the court of last resort shall in - such suit decide that the United States copyright laws are - applicable to such perforated music sheets, then and in such case - and from that time forward the Æolian Company will keep books of - account, render statements, and pay royalties, as provided by the - aforesaid agreement of even date herewith, but shall be free from - obligation to make payments for the past. - - And it is mutually understood and agreed by the parties hereto - that neither party hereto is to be obligated in any way by any of - the provisions of this agreement, or of the aforesaid agreement of - even date herewith, until the Æolian Company shall notify the - publisher that a number of copyright owners, satisfactory to the - Æolian Company, have made similar agreements with said company. - - And the parties hereto mutually covenant and agree that all the - provisions of this agreement shall be binding upon and inure to - the successors, executors, administrators, and personal - representatives of both the parties hereto. - - In witness whereof the publisher has on the day and year first - hereinabove written hereunto set his hand and seal, and the Æolian - Company has caused its name and corporate seal to be hereunto - affixed by its proper officer thereunto duly authorized. - - CHICAGO MUSIC CO., [SEAL.] - PLATT P. GIBBS, _President_. - THE ÆOLIAN CO. [SEAL.] - By E. S. VOTEY, _Director_. - - Witnessed by-- - - PAULINE FLAHERTY. - J. F. BOWERS. - - THE ÆOLIAN COMPANY, - _New York, May 5, 1902._ - - The CHICAGO MUSIC COMPANY, - _Music Publishers, Chicago, Ill._ - - DEAR SIRS: Pursuant to the provision of the agreement granting us - the exclusive right under your United States copyrights for all - perforated music sheets intended for use in controlling automatic - musical instruments and machines for playing musical instruments, - we hereby notify you that a number of copyright owners - satisfactory to us have made with us agreements similar to our - agreement with you. From this date, therefore, our agreement goes - into effect. - - Looking forward to profitable and pleasant business relations, we - remain, - - Yours, truly, - - THE ÆOLIAN COMPANY, - E. R. PERKINS, - _General Manager_. - -Mr. CHANEY. I would like to have this gentleman who has just spoken to -us (Mr. Low) submit a typewritten statement relating to the various -sections in the bill to which he objects, and setting out his -objections. - -The ACTING CHAIRMAN. Without objection that privilege will be accorded -to him. - - WASHINGTON, D.C., _June, 12, 1906_. - - _To the Committees on Patents of the United States Senate and - House of Representatives._ - - GENTLEMEN: I file herewith in typewriting specific suggestions for - the amendment of the said bill, in pursuance of the resolution of - the joint committee, passed on the 8th day of June, 1906; these - remarks or this statement to follow in the record the exhibit - contracts which I presented to your committees at that time. - - Very respectfully, - - H. N. LOW. - - -SUGGESTIONS AS TO THE AMENDMENT OF THE PENDING COPYRIGHT BILL. - - _To the Committees on Patents of United States Senate and House of - Representatives._ - - GENTLEMEN: If the allegations which have been made before the - committee, and not denied, and which can not be successfully - denied, that there has been effected a combination in the nature - of a trust to secure practically all of the commercial business of - this country in the manufacture, sale, and use of mechanical - records or controllers for the production of music, etc., by - mechanical means are true, then a very serious situation confronts - you. - - The agencies relied upon to make said combination of publishers - and manufacturers successful are-- - - 1. The contracts which have heretofore been entered into in - anticipation of this legislation, four of which contracts have - been filed in connection with the remarks of Mr. O'Connell and of - Mr. Low. - - 2. New legislation of the character proposed by this copyright - bill and especially by paragraph (g) of section 1. - - In one of the contracts referred to, dated April 30, 1902, between - the Chicago Music Company and the Æolian Company, it is provided-- - - "During the existence of this contract, after the payment of the - license fee thereunder, the Æolian Company obligates itself to - prosecute diligently, at its own expense and by its own counsel, - in the name of the proprietors of the copyright, all infringers of - the rights granted to it, the Æolian Company." - - In the other contract of the same date and between the same - parties, a facsimile of which has been filed with your committees, - it is provided-- - - "That no charge shall be exacted from or be due from the Æolian - Company * * * until a decision of the court of last resort in a - suit which is to be instituted against some manufacturer or user - other than the Æolian Company of such perforated music sheets for - the purpose of testing the applicability of the United States - copyright laws to perforated music sheets, and not then unless - such decision shall uphold the applicability of the United States - copyright laws to perforated music sheets of the kinds aforesaid. - And for and in consideration of the premises the Æolian Company - hereby covenants and agrees to pay all proper expenses of - conducting said suit," etc. - - Such test suit was instituted entitled The White-Smith Music - Publishing Company _v._ The Apollo Company by and at the expense - of the Æolian Company, the real complainant, and decided against - the Æolian Company, the holding of the court of last resort, the - United States circuit court of appeals for the second circuit, - being that such perforated music sheets were not infringements of - the copyrights of the nominal complainant. - - Although defeated so far, it is not reasonable to suppose that the - combination of the Æolian Company and its "number of copyright - owners satisfactory" to that company would rest without further - effort to make effective for profit the agreement into which they - had entered. The only remaining means was by new legislation, and - I submit that the aim and end of the pending bill is to be a - substitute for that favorable decision of a court of last resort - which the Æolian Company failed after strenuous efforts to obtain. - - Certain provisions of the bill here and there--for example, the - lengthening of the copyright term--have attracted to the support - of the bill various interests who are totally indifferent one way - or the other to the question of perforated music sheets or - phonographic records, but I submit that these other provisions are - more or less unimportant, do not improve the present law, and most - of them would never have been heard of except for the desire of - the special interests above referred to to obtain new legislation - as to the mechanical producers of sound. - - In the spring of 1904 attempt was made by this same combination to - obtain the legislation desired by the insertion of a specific - provision in the law to substantially this effect: - - "_Provided_, That in the case of a musical composition authors or - their assigns shall have the exclusive right to use said copyright - musical compositions in the form of perforated rolls for playing - attachments, copyright on which music rolls may be obtained by - said author or his assigns in the same manner as now provided by - law for copyright on musical compositions." - - I have not been able to discover that this proposed amendment of - the law was ever introduced in the form of a bill into either - House of Congress. It may have been. But I am informed that it was - formulated for the purpose of introduction as a bill in Congress - in the terms above set forth. - - It was found impracticable to obtain the new legislation in such - specific and undisguised form, and resort is now had to a - pretended revision or codification of the entire copyright law, - for which there is not the slightest necessity and which will - inevitably give rise to a great amount of litigation before the - meaning and effect of the words used in the new law can be legally - understood, for the sole purpose that the Æolian Company may have - with its contracting publishers and copyright owners "pleasant and - profitable business relations," as expressed in the notice from - the Æolian Company to the contracting publishers, dated May 5, - 1902 (a facsimile of which I have filed with your committees). - This notice states "a number a copyright owners satisfactory to us - have made with us agreements similar to our agreement with you." - - Although the matters above referred to have been opened up before - your committee in the remarks of Mr. O'Connell, I have felt it my - duty to give my view of the matter in brief form, both in - confirmation of what Mr. O'Connell has said, and for the purpose - of indicating that the bill itself and proposed amendments thereto - must be scrutinized by your committees with the greatest care - before it is reported. - - As to amendments of the bill, I see no alternative to the striking - out of paragraph (g) of section 1. If the combine exists as is - alleged it is obvious that the patents, inventions, machinery, and - plants of all those manufacturers of mechanical records who are - not inside of the combine, that is to say, of all the - manufacturers of perforated music rolls excepting the Æolian - Company, and all the manufacturers of talking machines and records - excepting the two companies who are alleged to be members of - another combination or trust for the exclusive manufacture of such - machines, and of all without exception of the manufacturers and - users and sellers of pianos and organs which are operated by - perforated music sheets, will be rendered practically useless, the - owners of such manufactories will be put out of business, and - their workmen will have their field of labor and bread taken away. - - If this will be the result of the bill, and especially of the - paragraph section 1 (g), the bill is most unjust and class - legislation of the worst type. And that is just what the bill is - intended to be, but I am thankful that its object can not be - concealed. - - It is no answer to the above objection to say that the bill - provides only for the future. So do the contracts between the - Æolian Company and its "satisfactory number" of copyright owners. - The said contracts are unlimited as to time, having been signed by - the great bulk of the trade (meaning thereby almost all of the - great music publishers of the country), they leave outside of the - combination only small publishers, and the contracts provide as - follows: - - "Now, therefore, the publisher, for and in consideration of the - premises, and of the sum of one dollar, lawful money of the United - States, to him paid by the Æolian Company, receipt of which is - hereby acknowledged, and for and in consideration of the true and - faithful performance by the Æolian Company of its covenants - hereinafter made, does hereby sell, assign, transfer, and set over - unto the Æolian Company the exclusive right for all perforated - music sheets of the kinds aforesaid in and to all the copyrighted - compositions of which the publisher is the proprietor, or in the - case in which he is the owner of any less rights, to the extent of - said rights, and does hereby covenant and agree with the Æolian - Company to give and secure to it the exclusive right in like - manner for all perforated music sheets of the kinds aforesaid in - and to all those other musical compositions which may hereafter be - protected by copyright, and the copyrights or rights in which may - be acquired by the publisher, except that if the Æolian Company do - not accept any piece offered them within three months after said - offer then the publisher may be at liberty to dispose of the same - otherwise." - - From the foregoing we arrive at this conclusion, and there is no - escape from it, that there is in existence a combination whose - design and effect upon very important business and laboring - interests of this country will be injurious and unlawful if the - bill should be passed as proposed, which combination is of - unlimited duration as to time, and which combination will control, - for the purpose of producing perforated music sheets, all the - copyrights or rights of production hereafter for such unlimited - duration of time which may be acquired by the great bulk of the - trade (music publishers) of this country. Your committees will - see, therefore, that the bill provides for the profitable future - of the members of the combination without limit as to time. - - The result of this will be threefold: - - 1. The Æolian Company will secure for itself practically the - entire business of the United States in the manufacture of - perforated music sheets, and will be in a position to dictate the - prices for such sheets to the trade, including the manufacturers - and sellers of pianos and organs operated by said sheets as well - as the sellers of the sheets alone, and to raise the price to the - public generally for such sheets. - - 2. The publishers who have contracted with the Æolian Company to - give the latter all the rights which the publishers have or may - have in copyrighted music will receive from the Æolian Company - certain royalties, which royalties will either be clear profit to - the publishers or will be less than any extra royalties which the - publishers will pay to the composers. It is practically certain - that in the long run the composers will get no more royalties than - they now receive, for the composer, for his own advantage in - obtaining a large sale of his works, must go to one of the large - publishers of music, and will be compelled by such publisher to - accept in full payment of his copyright just such a royalty as he - now gets under existing law, and all the extra profits which can - be mulcted from the public under section 1 (g) of the bill will be - divided between the members of the combination. - - 3. The public will foot all the bills without any more advantage - to themselves than they have under existing law. - - The assertion made in support of the bill, that it relates only to - the future, is completely met with the reply that the bill does - not provide for the future of anyone who is outside of the - combination. - - If the existing copyright law is bad or insufficient and anything - like a revision of or a codification of the copyright statutes in - a new law must be made in the interests of justice, let it be - done. But let care be taken that you do not do injustice. If a new - copyright law is to be enacted, and the pending bill is to be the - foundation of such a law, the practical question is, how is it to - be amended in order that it may not cause the evils above referred - to. - - Mr. Putnam in his introductory remarks indicated that your - committees would find evidences of "selfishness" in the bill. He - is undoubtedly right. It is, however, much more far reaching in - this respect than Mr. Putnam had any idea of. It is extraordinary - that the conference which advised Mr. Putnam adopted such radical - legislation as is proposed in section 1 (g) without inviting the - attendance at the conference of a single person interested - adversely to this legislation. In fact it would appear that such - persons were purposely kept in ignorance of what the conference - was doing. - - But I do not think that the selfishness of the interests which are - opposed to the said new legislation, and who are now fully aware - that it is proposed, extends beyond a rightful effort to prevent - their own extinction. - - In my opinion the manufacturers of mechanical music controllers or - records are willing to pay a fair and reasonable royalty to - composers of music which they use, or to other owners of - copyrights for musical compositions, but this must be provided for - otherwise than by an enactment which will give rise to the evils - attending the said paragraph, section 1 (g) of the bill. That - paragraph should be eliminated and other parts of the bill - corresponding with this paragraph, and there should be substituted - for it, probably at some other more appropriate part of the bill, - a provision like the following: - - "Any person, firm, or corporation who shall make, use, or sell, or - let for hire, any device, contrivance, or appliance especially - adapted in any manner whatsoever to reproduce to the ear the whole - or any material part of any work published and copyrighted after - this act shall have gone into effect, shall pay to the author or - composer of such work a fair and reasonable royalty to be - determined according to the market price for such or similar - royalties. - - "And the author or composer of the work so used shall have the - same remedies for the recovery from such person, firm, or - corporation of such royalty or royalties as is provided in this - act for the recovery of damages for the infringement of copyright. - - "And after the amount of such royalty or royalties shall have been - ascertained and become due by express contract between the - parties, or shall have been ascertained and adjudged to be due by - any circuit court of the United States, and is not paid, then the - author or composer shall have the same remedy by injunction - against such person, firm, or corporation, as is provided in this - act in cases of the infringement of a copyright." - - It is believed that such an enactment would give to the composers - who have appeared before your committees all the rights and - remuneration which is due them, and at the same time will defeat - the unlawful combination which exists and is hereinbefore referred - to. - - I believe that it will not be at all difficult to arrive at the - just value of such royalties, and in almost every instance they - would be settled by contract between the owner of the copyright - and the maker of the mechanical appliance for producing the music. - In the case of a composition of any value the composer will - dispose of it for an agreed-upon royalty to some music publisher - in the usual way. He will then dispose of his right to the - composition for reproduction by mechanical means to some - manufacturer of such mechanical means for a royalty agreed upon. - If any other such manufacturer, not in contractual relations with - the owner of the copyright thereafter makes use of the - composition, the amount of the royalty for which the owner of the - copyright has contracted will aid in determining what royalty is - fair and reasonable and is to be paid by such other manufacturer. - I suppose that in some cases litigation may be necessary to arrive - at the amount of the royalty, but not more than is inevitable in - human affairs. It is not to be supposed that a manufacturer will - resist the payment of the royalty for a musical composition which - he has utilized and pay to the complainant the cost of litigation - rather than make a fair settlement upon terms which are well - settled, or will soon become well settled under this act, in the - trade. - - A provision like that above suggested is analogous to, and appears - to be quite similar in its effect to, the compulsory-license - provision of some of the foreign statutes. For instance, in the - law of the Dominion of Canada, lately enacted, in 1903, we have - the following: - - "7. (_a_) Any person, at any time while a patent continues in - force, may apply to the commissioner, by petition, for a license - to make, construct, use, and sell the patented invention, and the - commissioner shall, subject to general rules to be made for - carrying out this section, hear the person applying and the owner - of the patent, and if he is satisfied that the reasonable - requirements of the public in reference to the invention have not - been satisfied by reason of the neglect or refusal of the patentee - or his legal representatives to make, construct, use, or sell the - invention, or to grant licenses to others on reasonable terms to - make, construct, use, or sell the same, may make an order under - his hand and seal of the patent office requiring the owner of the - patent to grant a license to the person applying therefor, in such - form and upon such terms as to the duration of the license, the - amount of the royalties, security for payment, and otherwise, as - the commissioner, having regard to the nature of the invention and - the circumstances of the case, deems just." - - I instance this foreign law to show that under a system of - jurisprudence exactly like our own it has been found best to limit - rights heretofore granted in the most exclusive form, and provide - for compelling the owners of such rights to deal reasonably and - fairly with the public. This Canadian law relates to exclusive - rights to inventions under letters patent, where the ascertainment - of what is a just license fee or royalty is always more or less - complicated and difficult. In the case of copyrights much simpler - conditions prevail, the value of musical compositions are more - easily measurable and there would be far less difficulty in - arriving at a fair royalty by a contract between the parties or by - arbitration, or, in the last resort, by the judgment of a circuit - court. I have mentioned a circuit court merely for purpose of - illustration. It would probably be more convenient to confer this - jurisdiction on a United States district court. - - It seems to me that under the conditions which confront your - committees, there being on the one hand a desire to recompense - musical composers, and on the other hand the necessity of - defeating the unlawful combination which will have entrenched - itself most securely if the bill should become a law including the - objectionable paragraph which I have discussed, an amendment of - the bill in some such way as above indicated is inevitable. - - - SPECIFIC AMENDMENT OF THE BILL. - - I submit that in the interest of the public it is far better to - correct any evil in the existing copyright law, which was pretty - thoroughly revised not very many years ago, than to pass a - revision of the law which uses so many new terms and words which - have not received judicial interpretation, and which bill - evidently requires itself revision and amendment in almost every - section. It requires such amendment in detail in the first place - to eliminate those matters which have been embodied in the bill - for the purpose of most thoroughly carrying out the provisions of - section 1 (g), upon which I have already commented. If it is - necessary to eliminate the paragraph specified, it is also - necessary to revise the bill in many other sections where - corresponding matter appears. - - In the second place, the bill requires amendment as to the term of - copyright proposed, as to the damages for infringement, as to the - effect which the certificate of the filing of the entry shall - have, as to the way in which and the terms in which the notice of - copyright shall be given, and as to broad and uncertain - expressions which are found in many sections, which can have no - good effect and which will only be productive of uncertainty, - confusion, and litigation. - - I am informed that a substitute bill will be submitted to your - committees in the nature of specific amendments to the existing - law to cure any evils which may exist therein and, among other - things, to give reasonable compensation to authors or composers - for the use of their works by the manufacturers of automatic - mechanical reproducing devices. I believe that it will be - preferable to thus amend existing law, leaving the great bulk of - the law in those words and terms and provisions which there is no - necessity of changing and which have become well understood by - years of judicial interpretation. - - I will however proceed to discuss the pending bill and point out - the specific amendments which appear to be necessary in the - interest of the public, both as to clearness and certainty of - expression and as to the relative just claims of the author and of - the public. - - Section 1, paragraph (f), should be amended by striking out the - words "or for purpose" and the remainder of line 10 and to the end - of line 13, and by inserting the words "or to make any variation, - adaptation, or arrangement thereof." - - It will be seen that to retain this paragraph in the present form - would be equivalent to retaining paragraph (g), because it was the - intent in framing paragraph (f) to have the word "performance" - cover the operation of an automatic mechanical device; and the - words "arrangement or setting" were intended to include the - production of a perforated music sheet. - - Paragraph (g) should be eliminated for the reasons already given. - - Paragraph (h) should be amended by inserting at the end thereof - the words "amounting to a copy thereof." - - It is obvious that this paragraph is altogether too broad and - uncertain. The paragraph should only protect against infringements - which are copies, and it must be left to judicial determination in - the future as it has been in the past to say whether or not any - particular abridgment, adaptation, or arrangement is a copy within - the meaning of the law. - - Section 2 appears to be substantially similar to section 36, and - one of the two sections should be eliminated or they should be - consolidated. - - Section 3 should be amended by striking out "the copyrightable" - and the rest of line 4, and to the end of line 8, and substituting - "matters copyrighted after this act goes into effect." - - So amended the section does not appear to be necessary in the - bill, but on the other hand in its present form it will be seen at - once that it is retroactive and very injurious, making in effect - certain matters infringements of the copyright granted under - existing law which are not infringements now and are within the - public domain. - - Section 4 is absurdly broad and indefinite and covers pastry or - other works of a cook. It should be amended by inserting the word - "literary" before the word "works," or by substituting the word - "writings," which is used in the Constitution and is the - preferable word to employ, or by inserting after the word "works" - the words "mentioned in section 5 hereof." - - In section 5 paragraph (h) should be eliminated. This paragraph - was intended to cover perforated music sheets or talking-machine - records which are to be otherwise provided for. As to other - matters it may be said that if the reproductions referred to are - copies of things already copyrighted, they are infringements; if - not copies, they are works of art in themselves under paragraph - (g) of section 5. - - On page 4 "The above specifications shall," in line 8 and line 9 - and line 10, to and including the words "nor shall," should be - canceled, and in line 11, after "classification," insert the words - "shall not." - - It is obvious that an unlimited subject-matter of copyright is - highly undesirable from the standpoint of the public. - - In section 6, line 15, after "compilations," insert "or," and in - the same line strike out "or other versions." These words are - plainly unnecessary and are intended to have a capability of - elastic interpretation unduly favorable to the author and - prejudicial to the public. - - In section 7, paragraph (b), the words "of a work" and the rest of - line 6 and lines 7, 8, and 9, to and including the word "text," - should be canceled. If a work has fallen into the public domain, - even though subsequent to 1891, it would be retroactive to now - bring it within the copyright law and deprive the public of its - use. - - Section 8, paragraph (a), in the interest of clearness should be - amended by striking out the words "or cotemporaneously" in line - 21, and by inserting after line 22 "shall publish his work within - the limits of the United States cotemporaneously with its first - publication elsewhere; or." - - Section 9 should be amended by inserting after the word "Act," - line 14, the words "and by the performance of the other conditions - precedent mentioned in the act, and by entry of the title of the - work as hereinafter provided." It is plain that a person does not - "secure" copyright by the publication with notice, which is all - that is mentioned in this section. - - Section 10, line 24, the words "and such registration shall be - prima facie evidence to ownership" should be struck out. There - does not appear to be sufficient reason for giving a mere - assertion of claim the prima facie standing of absolute ownership. - - It would put upon the true author, whose production had been - entered for copyright by another person, the burden of proof, and - this section if not amended would be very susceptible of - fraudulent use. I am inclined to think that it is advisable, - certainly if the copyright entry is to be prima facie evidence of - ownership, to require that the claim be verified before it is - presented to the Librarian, and that false swearing to such a - claim shall subject the affiant to the penalty for perjury. - - Section 13, page 9, line 19, "and all his rights and privileges - under said copyright shall thereafter be forfeited" should be - canceled. These words might lead to the unjust forfeiture of a - copyright if the false affidavit were made by the agent or printer - without the knowledge of the author or owner. Also the words seem - superfluous. If a condition precedent has not been performed, the - right is lost by operation of law without these words. To insert - them implies that the provisions of section 13 are not conditions - precedent to obtaining a valid copyright. - - In line 24 the word "and" should be substituted for "or;" and at - the end of line 25 the words "if it has been published" should be - inserted. It is very desirable that all the facts upon which the - copyright depends should be clearly stated when possible. - - Section 14, line 2, the words "or the," and the following matter - down to, but not including the word "accompanied," in lines 5 and - 6, should be canceled, and the words "with the date of entry of - the copyright" should be inserted. - - The notice of copyright must be clear and in such usual words, not - signs which hardly anyone will understand, as are intelligible to - the public. I consider it highly important that the date of - copyright, including the year, month, and day, should appear in - the notice, and also the name of the person by whom the original - entry is made in the copyright office. The indexes will be kept by - these names, and any subsequent entry or transfer should always be - indexed under such original names. These remarks apply also to - sections 44 and 45 hereafter considered. - - In line 10, after "some," the words "uncovered and" should be - inserted. - - In line 13, after "name," the words "as in the original entry of - copyright" should be inserted. - - Line 19, the word "its" should be changed to "the," and in line - 20, after "following," the words "of each separate volume" should - be inserted; and in line 24, after "accessible," the word - "uncovered" should be inserted. - - Page 11, line 3 should be stricken out or amended to cure its - indefiniteness as to the meaning of the word "composite." - - In line 4, the word "musical" should be changed to - "musical-dramatic." - - It has never been intended by the copyright law to use the word - "performance," excepting of such works as are only useful when - represented or "performed" in a dramatic sense. The word - "dramatic" has not always seemed sufficiently broad, and the words - "musical composition" have often been added to include operas, - oratorios, and musical works that are not purely dramatic, and yet - are partially so. It is submitted that it has never been the - intention of the law to make the mere singing of a song from - copyrighted notes that have been paid for, or the playing of - music, infringements of copyright, and it is believed that this - section will carry out the full intent of the law if the word - "dramatic" be coupled with the word "musical," as above indicated. - - In view of the use of the word "performance" in other parts of - this bill for the purpose of including the use of automatic - mechanical devices, it should be made clear that the word - "performance," in line 5, has nothing beyond its ordinary - significance. I suggest that this can best be attained by striking - out the word "performance," in line 5, and inserting the word - "representation." - - Section 15 should be amended by striking out the words "if, by - reason" and the rest of line 11 and lines 12 and 13. - - It is plain that these words in the bill leave an open door for - free publication which brings a work within the public domain, and - subsequent monopoly of the work upon a mere allegation of error. - The Librarian has not the facilities or legal machinery to try - such question of error, and it should be left to the courts to - determine whether there has been an error or omission, and whether - by reason thereof any condition precedent for a valid copyright - has been left unperformed. - - Page 12, line 13, the words "bulk of the" should be stricken out. - These words are uncertain and would allow the proprietor to omit - the notice from 49 per cent of the edition. This would clearly - amount to insufficient notice to the public and could be made the - instrument of fraud. Line 14 and the remainder of the section are - entirely sufficient for the purpose without the words "bulk of - the." - - Section 17, line 22, the words "be extended to" should be - canceled, and at the end of line 24 the words "such term beginning - with the date of filing the request for the reservation of the - copyright," should be inserted. - - There appears to be no reason for granting more than the specific - term, which the law will provide, in the case which section 17 is - intended to cover. - - Section 18 relates to the term of copyright. - - The whole system provided in the Constitution is for the benefit - of the public, the intent is to accumulate for the use of the - public, matters of literature, art, and invention. The stimulus in - the way of a reward given by the public in return for these - matters is subsidiary to the main object. The reward consists in - "securing for limited times to authors and inventors the exclusive - right to their respective writings and discoveries." The objection - to the term provided in the bill is that it is unconscionably - long. It may easily amount to a hundred years or more, during - which time the public will have paid tribute to the author for - something which will be so old fashioned as to be useless to the - public when the copyright has expired. - - The word "limited" in the Constitution shows that the framers of - that instrument had in mind to secure for the public certain - benefits after the time had expired. To provide such a long - copyright term as the authors seek to obtain in this bill would - practically defeat the object of the said clause of the - Constitution and the intention of its framers. I submit that it - could only be considered for a moment on the ground that it is a - matter of indifference to the public because the works so to be - protected are entirely useless in themselves. I do not think there - is any sufficient reason for lengthening the term--twenty-eight - years with an extension of fourteen years--provided by existing - law. - - In another respect this section is bad in making the length of the - term dependent upon an event which is uncertain in advance, and of - which no public accessible record may be made when it occurs; that - is to say, the death of the author. I see no reason why a young - author should have longer protection than an old author, and the - provision would leave open to publishers a door of fraud by - securing copyrights for the productions of old authors in the name - of some younger person. - - The objection to a long term especially applies to music which - depends almost entirely upon fashion and taste, and these soon - change and the music becomes useless to the public. In my opinion, - purely musical productions should have a relatively short term of - copyright, but I have not considered the subject sufficiently to - be justified in fixing any precise number of years. - - But as to all copyrights it is my conviction that the interest of - the public unquestionably requires that they be granted for a - definite term of years, and that, if an extension is provided, the - extension should be for a fixed and definite time. It is only this - which enables the public to know, upon reading a notice of the - copyright, when the monopoly will terminate. - - If for any reason it should seem wiser to make the term dependent - in its length upon the death of an author, then the continuance of - the copyright should depend upon definite evidence being filed in - the copyright office showing positively the date of death. - - At the end of section 18, page 15, line 8, after "name," the words - "_Provided_, That in such published work the notice of copyright - be given as required in this act" should be inserted. - - Section 19 should, in my opinion, be canceled. It is retroactive - in its character. Definite contracts have been entered into - between authors and the public with respect to matters already - copyrighted, and it would impair the obligations of those - contracts to provide any renewal or extension of such copyrights. - It has already been agreed between such authors and the public at - what time their copyrighted works shall pass into the public - domain. - - Recurring to lines 3 and 4 of page 15, I submit that they should - be canceled, so that the copyright shall extend for a definite - number of years after the date of original entry. There seems to - be no sound reason for giving an author a longer copyright, longer - by a year, if he makes his entry on the 2d of January, than - another author will have who enters his copyright on the 30th of - December preceding. - - Section 21 should be canceled, as it gives, in effect, copyright - privileges where the conditions precedent required by this act - have not been performed. - - Section 22, line 14, is too broadly worded for the benefit of the - authors of this bill, and the word "reproduction" should be - canceled and the words "copy or representation" should be - inserted. - - In lines 22 and 23 the words "such fraudulent" and the rest of the - section should be canceled, and the words "copies which are - infringements is hereby prohibited." - - Section 23, paragraph (b), should be canceled and made to read: - - "(b) To pay to the copyright proprietor damages for the - infringement." - - As the paragraph now reads, it gives double damages. The - proprietor should receive damages which will be judicially - ascertained in the ordinary way, either by estimating the profits - which the infringer has made, or by estimating the damages or loss - which the proprietor has suffered. If there is no actual damage it - should not be provided that $250 should be recovered, and if the - damages are greater than $5,000 there is no sound reason for - limiting them to the latter sum. - - For the same reasons lines 18 to 24 on page 17, and lines 1 to 7 - on page 18, should be canceled. - - Paragraph (c) on page 18 should be amended by striking out the - word "alleged", in line 10, and inserting "shown to the - satisfaction of the court." - - Section 25 should be amended by inserting at the end of line 23 - "and with intent to deprive the owner of the copyright of lawful - profit." - - The word "willfully" does not appear to make the section - sufficiently clear, and it is submitted that an infringer should - not be held guilty of a misdemeanor unless he have the intent - specified in the suggested amendment. - - After line 6 on page 19 the following words should be inserted: - - "_Provided_, That any person who performs the alleged infringing - acts under a mistake of fact or law shall not be deemed to be a - willful infringer." - - The alleged infringer may have good reason to think that - conditions precedent have not been performed and that no valid - copyright exists; he may be under a mistake as to when the term - expires; he may be of the opinion that what he has produced is not - a copy, and he may perform his alleged infringing acts under - advice of counsel. It does not seem proper under such - circumstances to hold him to be a willful infringer and guilty of - a misdemeanor. - - In line 14 of page 19, after "knowingly," the following words - should be inserted: "and with fraudulent intent." - - Page 20, line 9, before "publish," the following words should be - inserted: "send notice of such seizure by registered mail to the - person to whom the article seized is consigned or directed, and - shall." - - Section 27, line 24, after "first," there should be inserted the - words "mailing or". - - Section 29, lines 6 and 7, the words "supposed to contain" should - be canceled, and the words "which contains" should be inserted. It - is unreasonable to permit a postmaster to detain a package upon a - mere supposition. - - In line 9, before "mail," there should be inserted the word - "registered." - - Page 24, lines 16 and 17, the words "not more than one copy at one - time" should be canceled, and in line 17 the word "or" changed to - "and." - - At the end of section 32 the following should be inserted: - - "_Provided_, That the owner of the right to perform any - copyrighted work by means of any automatic mechanical device shall - not have the remedy by injunction herein provided until the amount - of fair and reasonable royalty for such use shall have been - ascertained by express contract between the parties, or by - judgment of a court, and shall be due and not paid." - - Section 35, line 8, the word "full" should be canceled; and in - line 9, after "allowed," there should be inserted "according to - the practice of law and equity." - - In many cases it might be inequitable to allow costs, and the - court should be left free to exercise its legal discretion. - - Section 36, line 11, the word "common" should be inserted before - the word "law." This section should be compared with section 2, - and they should be consolidated, or preferably they should both be - omitted as unnecessary and as being outside of the purview of this - act. - - Section 38, line 23, there should be inserted after the word - "musical" the word "-dramatic." - - Line 25, the word "make" should be canceled and there should be - inserted the words "produce by." - - It is evident that the right to make belongs to the patentee of - the device. - - Page 30, line 1, the words "ninety days" should be changed to - "three months" as more convenient and as excluding any contention - whether or not Sundays and holidays are included in the ninety - days. The similar provision of the patent law reads "three - months." - - Section 44 should be amended by inserting after "assignment", in - line 12, the words: "and index the same under the name of the - person by whom the original entry of copyright was made." - - Section 45 should be amended so that lines 21 to 23 shall read as - follows: "signee shall in all cases give in the statutory notice - of copyright prescribed by this act the name of the person by whom - the original entry of the copyright was made." - - Without this provision the public will be put to great - inconvenience in finding the original entry on which the copyright - depends. The copyright notice should be of a clear and specific - character so as to cause the public as little inconvenience and - uncertainty as possible. - - Paragraph 52 should be amended by striking out "provided" and all - thereafter to the end of the paragraph in lines 2 and 3 of page - 33. This provision is altogether too broad and the courts should - be left free to determine what are conditions precedent to a valid - copyright and whether there has been any breach of them. - - Section 54 should be amended by striking out the words "the date - of the" and inserting "that the affidavit states the dates of;" - and in line 20 cancel the words "as stated in the said affidavit," - and insert the words "which dates shall be given in the - certificate." - - Section 55 provides for the destruction of card catalogues. The - wisdom of this provision is very doubtful. A single card catalogue - for each class of copyright work would save an immense amount of - time and error to the public, and to the Librarian in making - searches. Instead of periodically destroying card catalogues, they - should be added to and preserved. As soon as they are destroyed, - instead of being able to make one examination of one part of the - card catalogue, the public will be compelled to examine a great - number of periodically made printed indexes. I therefore suggest - that the words "and thereupon", to and including the word - "intervals," lines 9 to 12 of page 34, be canceled. - - As to the destruction of articles provided for in section 59, I - suggest that the section be amended by inserting in line 10 of - page 36, after the word "provided," the words "and with the - authorization of the Committees on Patents of the Senate and of - the House of Representatives." - - Section 63 should be amended by striking out the words "sold or - placed on" in line 7, and by inserting "made public, or sold - publicly or privately, or placed on public." - - As to section 64, I have to suggest that the present bill is - supposed to be what may be termed a codification of the copyright - law; if so, section 4966 of the Revised Statutes has no proper - place outside of this bill. If there is anything desirable in the - section it should be embodied in the bill at the proper place, and - in doing so it should be made plain that the word "musical" where - it first occurs in section 4966 means "musical-dramatic," meaning - thereby a composition which is dependent upon representation or - performance in the dramatic sense. - - I do not believe that the people of this country are aware of what - the musical composers and publishers are attempting to do in the - way of securing monopolies. - - If the public were aware that these persons, after having secured - copyrights giving them the exclusive right of copying and - publishing music for sale, and after having sold the copies of - such music are attempting to secure laws by which they may impose - further taxes upon the public for the use of such music by singing - or playing, and are seeking to provide fines and terms of - imprisonment for those members of the public who do not pay the - additional tax, there will be such a storm of protests before your - committees as could not be disregarded. - - Section 4966 of the Revised Statutes should be repealed - altogether, and so far as its provisions appear in this bill they - should be limited to musical-dramatic compositions, and the - provisions for damages other than actual damages and for - imprisonment should be absolutely eliminated. - - Very respectfully, - - H. N. LOW. - -The ACTING CHAIRMAN. Now we will hear the gentleman who represents the -talking machines. - - -STATEMENT OF S. T. CAMERON, ESQ., REPRESENTING THE AMERICAN -GRAPHOPHONE COMPANY, OF NEW YORK CITY. - -Mr. CAMERON. Gentlemen, the first objection we have to the bill is, in -our mind, the most serious one, and one which has been several times -touched upon heretofore, so that I shall not attempt to go into any -very great detail in discussing it here, but shall simply call -attention to the fact that we object to it, and point out to you why, -in connection with our particular business, it is especially -important. - -If you will turn to section 4 you will find that it reads: - - That the works for which copyright may be secured under this act - shall include all the works of an author. - -Our position is that this is in direct contravention of the -Constitution. If you will substitute in that clause the word used by -the Constitution, and say that the works for which copyright may be -secured under this act shall include all the "writings" of an author, -then we do not object to that section. - -Now, if you will take certain other sections of this bill, with that -change made in section 4, and attempt to read them, particularly where -the word "reproduce" occurs, or the word "reproductions" occurs, you -will see the importance of it to us. - -Take, for example, section 3, immediately above: - - That the copyright provided by this act shall extend to and protect - all the copyrightable component parts of the work copyrighted, any - and all reproductions or copies thereof. - -If you read that word "reproductions" with the word "works" in section -4 changed to "writings," reproduction means a very different thing. - -If you will turn to section 18, on page 14, subclause b, you will find -this language: - - Any arrangement or reproduction in some new form of a musical - composition. - -Mr. CHANEY. What do you understand the word "works" to mean in section -4? - -Mr. CAMERON. It may mean anything that is reduced to writing, or that -is not reduced to writing. It may be an oral speech that is absolutely -wafted upon the winds of the air and never gets into permanent form. -In proof of that we go to section 5, line 20: "Oral lectures, sermons, -addresses." - -The talking-machine art stands in a somewhat different position from -that of the perforated music roll. You take a sheet of music and you -have Sousa's or any other band play that music into the horn of an -instrument, a patented apparatus. That machine engraves lines -corresponding to what? To the sound waves produced by the band or the -voice of the performer on the wax or other tablet. - -Now, if you make that word "works" read "writings," as I understand, -as the Supreme Court has interpreted the word "writings," it means -this, in its broadest signification: That the idea of the author has -been recorded in some tangible form, in such a way that another, -through the eye, may have the idea of the author impressed upon his -brain. That may be a painting; it may be the work of an artist. I -think the Supreme Court has included a painting under that term -because of that very fact, that the idea of the artist was recorded in -some tangible form and, through the eye of the beholder, the idea of -the artist was conveyed to the brain of the beholder. That is what a -writing is, as I understand it, within the meaning of the -Constitution. - -Mr. CHANEY. The effect of your argument is, then, to limit the word to -something that can be read by anybody? - -Mr. CAMERON. Not necessarily by anybody. - -Mr. CURRIER. But by somebody? - -Mr. CAMERON. Yes. I can not read Sanskrit. - -Mr. CHANEY. I mean to say, that can be read by persons understanding -the same language? - -Mr. CAMERON. Yes; something that is capable of conveying to the -reader, if you may call him such, the idea of the author. - -Mr. CHANEY. And in that respect it would cut out the music-roll -proposition altogether? - -Mr. CAMERON. As my predecessor has told you, there is a dispute in -regard to that, and I am not qualified to state. As far as I have been -able to analyze the evidence, the preponderance is against the idea -that the music roll can be read. But I do know this: There is a -graphophone record of the disk form [exhibiting record to the -committee]. There is a graphophone record of the cylinder form -[exhibiting record]. I defy anyone--I defy Mr. Sousa to read that and -tell whether it is one of his marches or whether it is a speech of a -Member of Congress. [Laughter.] - -Mr. CHANEY. They are often very much alike. [Laughter.] - -Mr. CAMERON. They are both musical. [Laughter.] - -Mr. MCGAVIN. They are alike in volume of sound. [Laughter.] - -Mr. CAMERON. I am not making this statement theoretically nor as a -lawyer. I make it as an expert in this particular art. I have spent -months and months of time with the microscope myself striving to do -that very thing, and I know it can not be done. - -Now, let us go one step further. What is it that makes that -graphophonic record valuable? I can take Mr. Sousa's score and I can -select some person, some alleged musician in this audience, and I can -hand him a graphophone and tell him to make that record, and it would -not be worth one cent upon the market. It takes the genius of a Sousa -to play into the horn. It takes the voice of the magnificent singer to -sing into the horn; and it takes the skill of the mechanician who is -operating the graphophone to make a fine record that has a marketable -value. - -You ask me if I would use Sousa's march, make that record and sell it, -and not pay him any royalty. I answer, "Yes; I would;" because I have -paid him royalty. Whenever Mr. Sousa publishes one of his pieces of -music and puts it out upon the market and I pay the price of that -music, that sheet of music passes from under the monopoly, just as -when I patent a cornet and sell the cornet to Mr. Sousa, and he pays -the price for it, it passes out from under the patent monopoly, and he -has a right to use it. Suppose I should come here and say to you that -every time one of Mr. Sousa's cornet players played the cornet that I -had sold to him that he should pay me royalty for having played it! -That is what he is asking of you. That is not all. - -Mr. Sousa himself does not scorn, as he pretended to the other day, -these "infernal talking machines." The day has been when Mr. Sousa -himself came with advance scores and begged to have them put upon the -machines, in order that they might popularize his own music. Nor is -that all. He to-day is under contract, and he plays into these -"infernal machines" with his band, and he is contributing, as he told -you a few days ago, to stifle these "beautiful young voices that now -have disappeared throughout our city and our land." [Laughter.] He -does it for the almighty dollar. That is what he is after, and he -frankly told you so. - -Mr. SOUSA. I am honest, anyway. [Laughter.] - -Mr. CAMERON. You are; and, as I said to you the other day, I respect -you for it. All the men urging this bill are not as honest as you are, -sir. - -Mr. CHANEY. That is neither here nor there. We give them all credit -for being honest. - -Mr. CAMERON. I would not have made that remark if I had not been -interrupted. - -It was stated a moment ago, and it is a fact of which I wanted to -speak, that the intention here is to give everyone a fair show. The -gentleman here on my left (Mr. Webb) suggested that this bill would -not prohibit the perforated music rolls (and the same question would -apply to the graphophonic cylinder) from the reproduction of those -pieces of music or other copyrightable works which had appeared and -been copyrighted prior to this act. In that he is in error. Section 3 -says: - - Any and all reproductions, or copies thereof, in whatever form, - style, or size, and all matter reproduced therein in which - copyright is already subsisting. - -So that it does not go only to matter that is copyrighted subsequent -to the passage of this act. - -Mr. WEBB. I was speaking particularly of section g. That was the -section that the gentleman was objecting to, and I referred to that -particular portion. - -Mr. CAMERON. The act, however, would apply by reason of section 3 to -subsisting copyright. - -Mr. WEBB. Yes; that may be so. - -Mr. CAMERON. There is a situation in the talking-machine art that is -perhaps divisible. You see two distinct forms of records. The company -which I represent--the American Graphophone Company--makes both of -those forms. There are a great many other companies, some of them -making the machines and the records, and some of them making only the -records. Some of them make the cylindrical form of record and some of -them make the disk form of record; but there are two large, prominent -companies, one of which makes the disk form of record and the other of -which makes the cylindrical form of record. As I say, the company -which I represent makes both. - -Follow me now, if you please. There is also as close a musical trust, -as has already been said to you by my predecessor, in this country as -it is possible to form. That extends not only throughout this country, -but throughout the world. There are a few musical geniuses who are -able to stand above it and make them scramble for the genius. You have -two of them with you to-day, Victor Herbert and John Philip Sousa. But -John Philip Sousa can not speak for the struggling young composer who -is not powerful enough to compel this trust to come to him instead of -the young man going to the trust. - -How does that effect us? Did you hear any opposition to this bill from -the attorney of the Victor Talking Machine Company? No. They make the -disk form of record. Have you heard any opposition from the National -Phonograph Works--the Edison Company--in regard to this bill? No. They -make the cylindrical form of record. Why does the Victor Talking -Machine Company come here with such a virtuous show of regard for the -author, and say they have no objection to this? Why is not the -representative of the Edison Company--the National Phonograph -Works--here opposing this bill? Because, as I charge, and I think I -can substantiate it before I get through--not here, but I mean before -the hearings before this committee are through--there is under way the -same iniquitous proceeding that was outlined to you by my predecessor -in connection with the music rolls. - -Mr. PETTIT. That is absolutely untrue, as far as the Victor Talking -Machine is concerned. - -Mr. CAMERON. You can have a chance to reply when your time comes. - -One company gets the exclusive right to make the disk form of record -from copyrighted music, and the other the exclusive right to make the -cylindrical form of record. Let us assume for a minute that what the -gentleman says is literally true. Let us assume, I say. Is it not -possible for just that combination to be made, and should the American -Graphophone Company, which has millions of dollars invested in the -enterprise, honestly and fairly built up under the laws of this -country, money put in and money which it had an absolute right to -presume the law would protect--should that company be placed in the -position where it should be practically driven out of business by any -such monopolistic combination? Will you gentlemen give them that -opportunity? - -I am not prepared to say that this music publishers' combination is -the most gigantic trust on earth, but it is an absolutely close and -effective trust. You may reply that we have the right to play and put -upon these records all of the old noncopyrighted productions, those -that are now within the public domain. To that I reply that the -perforated music roll man or the talking machine man who attempts to -rely solely upon old music will go out of business inside of eighteen -months. He has got to meet the demand for the popular airs of the day. -He has got to be able to produce Sousa's and Victor Herbert's latest -productions. "I want what I want when I want it." That is where the -public stands. [Laughter.] You wait three years instead of fifty, and -where would we be? - -Moreover, we go to Japan, we go to China, we go to the various -countries of the earth, and make these records--get the original -records. We do not make the original record on that disk. We do not -make it upon that cylinder. We make an original record from the voice -of the singer. That original record in the case of the cylinder is -first very carefully covered with plumbago, to render it electrically -conductive. It is then electroplated with copper; by applying cold, -the original record is shrunk out, and you then have a mold, which has -on its interior a perfect counterpart of the sound groove cut upon the -face of the original record. We pour into that mold melted wax, or a -composition that is called wax in the trade. When that is hot, it -takes the impression of the mold and retains that until it sets; and -as it cools it contracts, and we are then able to withdraw that from -the mold, and after trimming the ends, that reproduction, that copy, -is as perfect a record as the original one. If it were not so, we -could not make and sell a record for fifty cents when we have to pay -the singer from $500 to $1,000 or $3,000 for making the original -record. - -Mr. WEBB. I was going to ask, How do you get Mr. Sousa's pieces? Do -you pay him for it? - -Mr. CAMERON. We do not; no, sir. - -Mr. WEBB. Who does? - -Mr. CAMERON. The Victor Talking Machine Company has an exclusive -contract with Mr. Sousa, and he gets paid for that. He did not tell -you that the other day. - -Mr. SOUSA. That is absolutely untrue. - -Mr. CAMERON. If it is untrue I am ready to beg the gentleman's pardon. -I had that information direct this morning, but I will gladly withdraw -it upon Mr. Sousa's word--gladly. I do not want to make any -misstatement. - -Mr. SOUSA. I have never received one penny for my compositions from -any kind of talking machine, nor have I ever made a contract with any -of those companies. - -Mr. CAMERON. I did not state that. I stated that Mr. Sousa, with his -band, played into the horns of these instruments to make these records -and was paid for doing it. - -Mr. SOUSA. An organization known as "Sousa and his band," employed -just as any other body of musicians, in which I have no part myself, -plays into the instrument. That goes under arrangements made with the -management of that organization to play anybody's compositions that -these firms may elect; it may be a noncopyrighted piece or a -copyrighted piece, or anything else. - -Mr. CAMERON. I am very glad Mr. Sousa stated that. He says that he -does not play his own music only, but his band stands ready to play -any other man's music, copyrighted or not copyrighted, into these -machines. - -Mr. SOUSA. Not myself; no. - -Senator LATIMER. I want to ask a question of Mr. Sousa, so as to clear -the matter up a little further. The statement is that you have a band -that plays into these instruments, and you, I understand, have denied -that? - -Mr. SOUSA. No, sir; I do not deny that "Sousa and his band," an -organization known as "Sousa and his band," play for talking machines. - -Senator LATIMER. Do I understand you to say that you have no -connection with that band? - -Mr. SOUSA. I am the director of that band, but I have no personal part -in the performance of those pieces. I have never been in the -gramophone company's office in my life. - -Mr. MCGAVIN. Do you play for anyone else besides the Victor Talking -Machine Company? - -Mr. SOUSA. My manager has a contract with them for so many -performances. - -Senator LATIMER. You have an interest in the band and receive profit -from it? - -Mr. SOUSA. Yes; surely. - -Mr. WEBB. You allow your name to be used all over the country? - -Mr. SOUSA. In the performance of these pieces, certainly. - -Mr. CAMERON. That was my charge. - -Mr. HERBERT. In regard to the untruth the gentleman has stated---- - -The CHAIRMAN. Do you want to deny any statement that he has made? - -Mr. HERBERT. Yes. In regard to this, naturally it would be inferred -that it was the same case with me. In fact, he mentioned us two -together. A band played into these instruments, calling itself "Victor -Herbert's band," and I sued the talking machine company. That is what -I got out of the company. - -Mr. CAMERON. The gentleman misunderstood me. I have made no statement -in regard to him, and I have no information in regard to him one way -or the other. - -Mr. CURRIER. He made no charge against you, Mr. Herbert. - -Mr. HERBERT. Since our names have been linked all the time, I thought -he intended what he said to apply to me also. - -Mr. PETTIT. I would like to say to Mr. Cameron in regard to his -statement about the Victor Company and Mr. Sousa, that whenever we -have used Mr. Sousa's music, or rather whenever we used his band on -Victor records, we always paid him for it--that is, we pay Mr. Sousa -for playing. - -Senator LATIMER. I want to bring out one point in connection with -that. In making these records, if I understand, now, Mr. Sousa has a -band that represents him, playing these pieces, and you pay for that -music when you get it, or do you not? - -Mr. CAMERON. Whoever employed Mr. Sousa pays for it. - -Senator LATIMER. Then it is paid for when you get these records? - -Mr. CAMERON. I do not wish to be misunderstood. We can take and do -take one of Sousa's marches and have another band, with which Mr. -Sousa is not connected, play, and we make the record; and in that case -Mr. Sousa does not get any of the compensation whatever. None of that -goes to him. - -Mr. WEBB. But you do not advertise it as being played by Sousa's band? - -Mr. CAMERON. Not at all. We advertise it as Sousa's march. - -Mr. WEBB. You advertise it as a march by Sousa as a composer, but -played by somebody else as the executant? - -Mr. CAMERON. Yes. That is recognized as such a valuable thing to the -composer, that John Philip Sousa has been to the office of the -American Graphophone Company, in years gone by, with advance scores, -and asked them to send them out, to advertise and help John Philip -Sousa along. He will not deny it. Moreover, we are flooded to-day with -artists that are struggling on the lower rounds of the ladder, that -are not as high up as John Philip Sousa was a few years ago, either, -begging us to do the same thing for them. I mention that to show you -that even John Philip Sousa, before he got where he bestrode the -musical world like a colossus, even he recognized the advertising -value of the talking machine to a composer. We are not doing him such -a great injury. - -Mr. SOUSA. I would like to say, Mr. Chairman, that the gramophone, -these talking machines, are really of very recent date. I believe the -gentleman will agree with me when I say that if we go back fifteen -years or sixteen years ago, we looked upon them purely as a toy. I -remember the first one I saw here in this city where I was born. A -gentleman had a man bark into it, and it was a remarkable thing to -hear this thing bark---- - -The ACTING CHAIRMAN. I would suggest, Mr. Sousa, that you are taking -up this gentleman's time. Unless you want to specifically deny -something that he has said, or ask a question, it is hardly fair to -him. - -Mr. SOUSA. If I ever did allow the Gramophone Company to do it, it was -because I did not think it was as important to them or to me as I do -now. - -Mr. CAMERON. Please do not confuse us with the Gramophone Company. It -is a different thing. - -Mr. CURRIER. Do you wish to deny that you are a musical colossus? -[Laughter.] - -Mr. SOUSA. No. I will admit that. [Laughter.] - -Mr. CAMERON. One thing more in regard to the constitutional question -which I mentioned. I shall submit, or the company I represent will -submit, a written brief. You will be addressed on that point much more -ably than I can address you by Mr. Walker, who will succeed me. - -I want, in closing, however, to emphasize one fact which my -predecessor, I understood, was told was unnecessary. With all -deference to the chairman, who said so, I disagree with him. That is -the fact that not only was the American Graphophone Company and the -talking-machine interests not notified, not only were these -conferences--quarterly conferences, we might call them, held in -secret---- - -Mr. CURRIER. I think you gentlemen had better all make it clear, when -you speak about these conferences, that you do not refer to committees -of Congress. - -Mr. CAMERON. No, sir; we do not. We refer to these star chamber -proceedings, before this bill was introduced into Congress. - -Mr. CURRIER. By whom? Not by anybody connected with the Congress? - -Mr. CAMERON. By Herbert Putnam and the men he brought around him. That -is by whom. - -Mr. CURRIER. I wanted it made clear that you were not referring to any -committees of Congress. - -Mr. CAMERON. Every effort was made to keep us from knowing that any -such bill was under way. It was not merely an act of omission, but it -was an act of commission. That is not all. Not only were the American -Graphophone Company not notified, but, if you will turn to the list of -those present, you will find that one of those whom I have mentioned -here, the representative of the Victor Talking Machine Company, at the -third stage of the proceedings, was present--as what? As one of the -musical publishers of the country, representing the Victor Talking -Machine as one of the musical publishers of this country. See how -close the association is. - -The gentleman who follows me will point out that association a little -closer. I think by that time the committee will realize that my -suggestion of a close cooperation between the National Phonograph -Works, the Victor Talking Machine Company, and the Musical Publishers' -Association is well founded. - -I thank you. - -The CHAIRMAN. Gentlemen, we will meet to-morrow morning at 10 o'clock -to hear Mr. Walker. - -Mr. BURKAN. I represent the publishers and the composers. An attack -has been made here, and we feel that we should get at least several -minutes to answer the charges that have been made. - -Mr. CURRIER. You will have some time to-morrow. We meet at 10 o'clock -to hear Mr. Walker for an hour. After that you gentlemen will have an -opportunity to be heard, undoubtedly. - -Mr. CROMELIN. I was to appear here to-day for the manufacturers, in -behalf of the talking machine interests, and was to follow Mr. -Cameron. If the chairman pleases, I should be very glad to continue -the first thing to-morrow morning, and let Mr. Walker follow. - -The CHAIRMAN. I could not consent to that, because I understand that -Mr. Walker has been notified that he will be heard the first thing -to-morrow morning. - -Mr. CROMELIN. I think Mr. Walker will agree to that. - -Mr. WALKER. It will be quite consistent with my convenience to let -this gentleman precede me for whatever time he wishes. - -The CHAIRMAN. How long would you want? - -Mr. CROMELIN. Probably fifteen minutes to half an hour. - -The CHAIRMAN. With that understanding, Mr. Walker, he will precede -you. - -Mr. WALKER. Yes, sir. And I am to have an hour after that? - -The CHAIRMAN. Yes. - -(Thereupon the committee adjourned until to-morrow, Saturday, June 9, -1906, at 10 o'clock a.m.) - - -COMMITTEE ON PATENTS, - -HOUSE OF REPRESENTATIVES, - -_Saturday, June 9, 1906_. - -The committee met at 10 o'clock a.m., conjointly with the Senate -Committee on Patents, pursuant to adjournment. - -Present: Senators Kittredge (chairman), Clapp, and Smoot; -Representatives Currier, Dresser, Bonynge, Campbell, Chaney, McGavin, -and Sulzer. - -Mr. PUTNAM. I have one or two communications, Mr. Chairman, in effect -addressed to the committee, which I offer for the record. - -The CHAIRMAN. They may be inserted. - -The communications referred to are as follows: - - WASHINGTON, D.C., _June 8, 1906_. - - The JOINT COMMITTEE ON PATENTS, - _United States Senate and House of Representatives_. - - GENTLEMEN: On behalf of the Photographers' Copyright - League of America, having participated in the conferences called by - the Librarian of Congress upon the subject of a new copyright law, - we beg to say that we give our hearty assent to the principles of - the bill as proposed. Of course, there are minor matters which - might have been otherwise drafted by us, but we as cheerfully - surrender such particular items, as did many other interests - represented at the conference. - - Copyright legislation has for its basic principle the protection of - the property of the copyright owner, and though remedies for damage - are manifestly necessary, prevention of injury is the matter of - highest importance to the copyright owner. Legislation which acts - as a deterrent is the active principle of protection prescribed by - the Constitution. For these reasons we believe the pending bill has - been framed upon logical and consistent lines which, if enacted - into legislation, will doubtless form precedent for other countries. - - Very respectfully, - - PHOTOGRAPHERS' COPYRIGHT LEAGUE OF AMERICA. - B. T. FALK, _President_. - PIRIE MACDONALD, _Delegate_. - - - HORACE PETTIT LAW OFFICES, - _Philadelphia, June 1, 1906_. - - HERBERT PUTNAM, Esq., - _Librarian of Congress_, _Washington, D.C._ - - DEAR SIR: Referring to the proposed bill to amend and consolidate - the act respecting copyright, a copy of which has been handed me, - with your circular letter regarding suggestions, I would say that - I would propose that the following clause be added continuously to - the end of section 3: - - "_And provided_, That nothing herein contained shall apply to - sound records made or to be pressed from dies or matrices - manufactured prior to the passage of this act." - - That the following be added to section 18, paragraph (_b_), line - 7, of said paragraph, between the word "composition" and the word - "any," viz, "including any talking-machine record." - - The amendment to section 3 is mainly designed to protect - talking-machine manufacturers who have invested very large sums of - money in records and in dies or matrices for pressing the same, - many of which contain musical compositions the notation of which - has been copyrighted, but which under existing laws these records - do not in any manner infringe. To now take away the right to use - these matrices and records, into which so much money has been put, - would be very unjust and inequitable and work a great hardship - upon the talking-machine manufacturers--that is, if my reading and - understanding of this bill is correct. This would tie up a very - large amount of capital, and place the talking-machine record - manufacturers at the mercy of the owners of subsisting copyrights. - - The object of the amendment to section 18, paragraph (_b_), is to - relieve any doubt that records containing the characteristic - articulation of the human voice, or the characteristic - instrumentation by a performer, adapted for reproducing these - characteristic utterances and performances to the ear are intended - to be included as copyrightable matter under section 4 of this - bill. - - I think there will be no question but that the particular - characteristic utterances of a singer, or recitationist, or of an - actor, or of an orator, or the particular instrumentation of a - pianist, or leader of an orchestra, etc., independent of the - composition itself, whether it is copyrighted or not, should be - equally entitled to protection, as a photograph or reproduction of - a work of art. - - It matters not whether the subject-matter of the record is - otherwise copyrightable or not. If the piece played is copyrighted - as a musical composition, it can not be reproduced on a sound - record, in accordance with the bill, without the permission of the - composer. A Paderewski, however, may play the copyrighted - selection, and a record of his rendition of it, with all his - personality and individuality thrown into the piece, should be - entitled to a copyright on a sound record for reproducing - purposes. - - This is true also of the voice of a Caruso or a Melba singing - either a copyrighted or uncopyrighted piece. It is true also, as a - further illustration, of the recitation by Henry Irving of "Eugene - Aramas' Dream." What is here copyrighted in these records is the - individuality and personality of the rendition by the performer. - It is the picture of the voice, or of the instrumentation, as, for - instance, a copyrighted photograph is a picture of a person or - thing. - - Should another performer play the same piece played by a - Paderewski the personality of Paderewski would be absolutely - wanting, and the same difference between the two performances of - the same composition would be in the respective sound records as - would exist at the actual performance of the respective pieces. - The same differences between Caruso's rendition of a selection - from Rigoletto and a concert hall singer's rendition of the same - would exist in the sound record and the reproduction therefrom as - would exist in the actual singing of the selection. This is true - regarding personality of every voice and instrumentation recorded. - - So-called talking-machine records in this respect differ quite - materially from the mechanical organ and piano, for the reason - that a so-called talking-machine record is an exact record of all - the modulations, and all the characteristic articulations of the - voice, as well as of all the characteristics of an - instrumentation. In other words, it is an exact picture of all the - merits and demerits of the original, and the original is - reproduced with an exactness so that frequently, at a distance, in - the present perfected state of the art, the reproduction may very - well be mistaken for the original. - - This record of the voice and instrumentation for sound reproducing - is an art which was not commercially available, or perfected, when - the earlier copyright laws were passed, and therefore were not - included. It is doubtless the intention of the framers of this - bill to include such sound records as copyrightable matter, but in - order to relieve the bill from any doubt it may properly be - expressed in this section as I suggest. - - Hoping that this will meet with your approval, I remain, - - Yours, very truly, - - HORACE PETTIT. - - - THE PLAYWRIGHTS LEAGUE CLUB, - _New York, N.Y., June 2, 1906_. - - LIBRARIAN OF CONGRESS, _Washington, D.C._ - - DEAR SIR: We are in receipt of your favor of the 31st ultimo, with - copy of proposed copyright law. After careful consideration the - provisions of this law seem admirably suited to the purposes, and - its framers deserve great commendation. - - As circumstances do not permit my attendance at the hearings, I - would consider it a favor if you would read this letter to the - committee, if not all of it, then the portions which may not be - referred to at the hearing, should anything herein referred to - fail to be considered. The latter paragraphs of the letter are - especially brought to your attention. - - In section 1, subdivision C, provision is made for the protection - of an "oral delivery" which has been prepared. Would it not be - well to specifically allow a speaker to announce at the conclusion - of an extemporaneous address his intention of copyrighting it, not - permitting this announcement, however, to interfere with the - liberty of the press in reporting portions of it? - - Section 9 directs that notice of copyright shall be given at each - public delivery of a lecture or similar work. Does "similar work" - include dramatic composition? Is the proposed notice to be given - orally, or by publication on a programme, if there is a programme? - It would seem that in the case of a dramatic composition - theatrical managers should be compelled by law to print on each - programme copyright notice of the play or plays produced, being - allowed, where there is no programme, to announce it orally. - - It would also seem important that in the case of a dramatic - composition publicly acted in foreign countries notice of - copyright in the United States, together with legal title of the - work in English, be printed on the programmes, as well as on the - manuscript copies of the play. This would serve as a notice - against translators, who otherwise would have great difficulty in - finding out whether a foreign play had been copyrighted here, - since the name of the play or its English equivalent rather, would - be very uncertain. Does the new law specifically require all - titles to be also in English? - - Does the law provide for the registration of the title in advance - of the deposit of copies as at present--a valuable privilege? - - Section 20 seems calculated to work an injustice to novelists. - That the author's exclusive right to dramatize his copyrighted - work should cease in the event of his being unable within ten - years to induce managers to produce his dramatization would be - unfair--would, in fact, encourage producers to wait until after - ten years before producing a dramatization of a novel. Would it - not be sufficient to state that the exclusive right terminates at - the end of ten years provided the author does not file at least an - unpublished dramatized version? - - Does this section 20 mean that a foreign dramatist who deposits an - unpublished and untranslated copy of a dramatic composition loses - his rights if his play is not produced publicly in ten years, or - does it allow him to deposit a translated unpublished copy any - time within ten years, in order to protect his rights? - - Section 45 might be profitably augmented by including the - privilege of allowing an author who writes under a pen name to - print the notice of copyright also under the same pen name. This - would be a considerable privilege, since at present he must go - through the complicated process of assigning his copyright to - another if he does not wish his real name to appear. In his claim - for copyright he could state both his real name and his pen name - in which he wished the copyright to appear. This would work - injustice to no one and would be a great convenience to authors - whose real names are of an uninspiring nature. - - This section 45 might also contain a provision allowing an author - to change the title of an unpublished work without deposit for - further copies, provided he paid a fee, since almost every - unpublished play is renamed. The duplication of copies of the same - work under different titles is of no service to the copyright - office and is frequently an expense to authors. The production of - a play under any other than its copyrighted title should - invalidate the copyright. - - The requirement of section 60, raising the copyright fee from 50 - cents to $1, will work a real hardship to many writers, - particularly those who write short plays for vaudeville and have a - hard time to make a living, to those who write many plays without - ever securing any returns, and to the writers of words of songs, - whose work is apt to be stolen unless copyrighted and who receive - a very small compensation in any event, as a rule. We would - strongly recommend that for unpublished works and short articles - in periodicals especially copyrighted and for photographs the fee - be held at 50 cents, or even reduced to 25 cents. - - Upon the enactment of the new law the copyright office will - receive from the dramatic writers a great many more works than are - at present offered, owing to the unsatisfactory condition of the - existing law. The number of dramatic compositions offered will - also be greatly increased by the favorable fact of the omission on - the notice of copyright of the year. At present the author of an - unpublished play must state the year of his copyright on his - title-page, and as it is often ten years or more after a play is - written before it secures a production, this telltale date proves - a great drawback in submitting the play to managers, and therefore - many authors prefer to run the risk of losing their plays rather - than to affix this hall-mark of antiquity. The prospect of this - increased revenue should be sufficient to induce the makers of the - law to reduce the copyright fee on unpublished works. - - I should recommend also that a specific clause be added making it - a misdemeanor to copy from an unpublished manuscript any portion - without authority, or to be found in the possession of an - unpublished copyrighted manuscript or parts thereof without - authority. This would correct two grave abuses, one, the stealing - of an author's ideas and dialogue by a manager to whom the play - might be submitted, and the second, the stealing of manuscripts - after a play is produced. One bureau openly advertises and - continually sells for a few dollars manuscripts of produced plays, - and the sale of such manuscripts enables infringers to deprive - authors of great sums in royalties. The adoption of such a section - as this will, of course, be sharply contested, but there is - absolutely nothing inequitable in it for any person not intending - fraud. - - It might also be well to deny the privilege of copyright to - authors who allow their plays to be publicly performed without - first securing a copyright. - - I trust that none of these suggestions will be taken as a - criticism of the proposed law, which will confer great benefits - upon and will greatly stimulate native art, but I am confident - that the importance of some of the proposed additions and the - convenience of others will at once be seen. - - Allow me to thank you for your courtesy in sending us the copy of - the proposed law, and to request the favor of any further matter - which the copyright office may have to issue upon the subject. - - Yours, respectfully, - - THE PLAYWRIGHTS LEAGUE CLUB, - By EDWIN HOPKINS, _President_. - - - BRIESEN & KNAUTH, COUNSELORS AT LAW, - _New York, June 8, 1906_. - - REGISTER OF COPYRIGHTS, - _Library of Congress, Washington, D.C._ - - SIR: On behalf of a number of clients, who are interested in the - new copyright bill, we respectfully beg to suggest that in order - fully to carry out the broad purpose of the framers of the bill, - the bill should be amended substantially as shown in the - accompanying draft amendment. - - The bill as it now stands does not provide for the registration, - by means of one entry, of a great many works of literature or art - which from necessity are printed on detached sheets. - - Section 60 of the bill provides that several volumes of the same - book or a series of photographs, drawings, etc., relating to the - same subject--with variances only in pose or composition--may be - registered for one fee. But a connected series of instruction - carded for educational use, a series of color prints to be used on - toy building blocks, sliced animals, games of authors, and other - card games are protected. There is no doubt that a new game, such - as pit, flinch, etc., should be copyrightable as a unit, whether - with or without rules for instruction, in such a manner that all - the artistic work and literary work may be fully covered by - copyright, although the items of the series are not physically - connected, and are not each provided with separate copyright - notice. - - While the experts in charge of the bill may be able to phrase this - purpose in words more apt than those contained in the proposed - amendment, there is no doubt that it is the intention of the - framers of the bill to include the articles referred to in this - letter, and also that the bill as it now stands does not cover - such articles. - - Respectfully, - - BRIESEN & KNAUTH. - - - _Proposed amendments to bill S. 6330._ - - Section 5, page 4, after line 7 insert "(m) Miscellaneous." - - Line 12, change period to colon, and add: - - "_And provided, furthermore_, That a series of copyrightable - works, assembled for a unitary purpose, shall be considered as the - subject-matter of a single copyright registration, fee and notice - should the applicant elect, whether or not the items comprising - said series are actually joined by binding or otherwise." - - Section 60, page 38, line 15, change period to comma, and add: "or - of a series considered as the subject-matter of a single copyright - registration as provided for in section 5 of this act, where the - items composing it are deposited at the same time under one title - with a view to single registration." - -Mr. Chairman, I ask leave to interpolate a word to the group of -interests adverse to these "musical-device" provisions of the bill. I -say it for the Government. And in order to avoid a syllable more than -is necessary I have written it. - -The reasons, gentlemen, why your group was not invited to the -conferences were made plain in my opening statement. First, the -conference was a conference of associations, and your interests are -not organized into an association. But, second, the conference was to -be particularly of those interests concerned "in an affirmative -way"--that is, in amplifying the copyright protection; and your -interests are negative. We quite anticipated the issue raised by these -provisions, but it was not an issue which seemed appropriate to the -conference nor for other reasons one likely to be settled by the -conference. - -Mr. Thomae represented that his interests might in one aspect be -affirmative also and asked to hear the discussion. He was permitted -to. He was not invited; he did not participate; he uttered not a word -in the course of the entire proceedings. But he asked to come and -listen, and he was permitted to. On the list of the few others present -as observers you will find the name of Gen. Eugene Griffin. General -Griffin came to us in March saying that he understood some such -provisions as these were under consideration; he had some interest in -a concern which would be affected; could he attend the conference and -hear what was proposed? Certainly. And he did. Mr. Thomae was to us -but the maker of a particular typical device. With Mr. Thomae as a -competitor among you we had no concern. What device or company General -Griffin was interested in we did not know and I do not know to this -day. But we took care to insert the names of both gentlemen on the -printed list of those present, so that you and others might be free to -make such inference as you chose from the fact of their presence. And -this list was furnished freely to all requesting it. - -These conferences have been going on for a year past. The fact that -they were being held, their purpose, and the associations -participating in them was freely published. Among these associations -were the composers and the music publishers. In the Apollo suit then -pending they were trying to secure protection of this sort under -existing law. There was every reason to suppose that they would urge -it in the new statute. Did any of you ever inquire of us whether they -were doing so? As long ago as last December the President announced to -Congress, and in the most public way to the country, that the bill had -already been prepared. Did you ask us for it? Did you even ask whether -such a bill would be likely to include any such provisions? As long -ago as January the music trade journals began to refer to the fact -that it would do so. Did you then ask leave to come to the next -conference? Did you ask even as to the character of the provisions? -Did you communicate with the Copyright Office in any way in the -matter? You know you did not. - -The fact that you did not is not to prejudice you in any way, and the -fact that you did not participate in the conferences I have myself -emphasized to the committee to your advantage, pointing out that these -provisions had been inserted without discussion at the conferences by -any interest naturally adverse to them. The fact is to your advantage. -I earnestly suggest that you avoid giving it a twist such as Mr. -Cameron gave it yesterday; I mean by such expression as "star chamber -proceedings." We can't let such imputations against the Government -stand uncorrected. But we hate to have to divert attention from the -main issue in order to correct them. The main issue is the merit of -these provisions. We are as anxious as is the committee to know your -substantial objections to them. And our interest is absolutely -identical with that of the committee in seeing that the objections you -show shall have due value and effect. - -(The following letter was subsequently written by Mr. Putnam, and by -direction of the chairman made part of the record:) - - JUNE 16, 1906. - - Messrs. CHAIRMEN: In my remarks to the representatives of the - talking machine and perforated roll interests at the hearing of - June 9 I stated that Mr. Thomae had not been "invited" to the - conferences. Of course he was invited or he could not have - attended. What I meant was that he was not among those originally - invited or in our list of those naturally entitled to be present. - - I had thought the distinction sufficiently clear from the context; - but I find that it was not. - - The chief purpose of my reference to him and to General Griffin - was not, of course, to excuse or explain their presence, but to - indicate how readily access to the conference could be secured by - a request to the copyright office. - - Very respectfully, - - HERBERT PUTNAM, - _Librarian of Congress_. - - -The CHAIRMEN OF THE COMMITTEES ON PATENTS OF THE UNITED STATES SENATE -AND HOUSE OF REPRESENTATIVES. - -Mr. CURRIER. I wish to say that last winter some time Mr. Griffin, who -is interested in one of the perforated-roll concerns, called at the -committee room and talked about this matter, and I advised him at that -time to see Mr. Solberg and Mr. Putnam. The committee clerk has had -some correspondence with him since that time, and other gentlemen -connected with that same business, I suppose, have been into the -committee room to make inquiries regarding this matter pretty nearly -every week for months. - -Mr. CAMERON. I would like to say that I do not even know who Mr. -Griffin is. - -Mr. CURRIER. He is the vice-president of the General Electric Company. -I think he lives in Brooklyn and is connected with some -perforated-roll company. - -Mr. CAMERON. I wish to point out that the remarks that I made were in -connection with the American Graphophone Company and the automatic -talking machine, and not the perforated-roll business. That is the -matter that is involved in these suits, not the talking machines. - -Mr. BURKAN. Mr. Griffin represents the Edison Company, and they -manufacture talking machines. - -Mr. DAVIS. Mr. Griffin does not represent the Edison Company, and he -is a director of the Perforated Music Roll Company, who operated under -my patents. General Griffin is now in Europe, and this notice which I -referred to yesterday, in which I stated that notice was given me that -my license would be canceled in case this bill passed, came from Mr. -Henderson, the acting manager of the Perforated Music Roll Company, on -behalf of General Griffin and other directors. - -Mr. Henderson notified me that the passage of this act would put them -out of business. He also stated to me that General Griffin had stated -to him that he attended these conferences, and that he considered them -logrolling proceedings, and that in time he would take action to -oppose them. But at present General Griffin is in Europe. I am sure, -from his remarks, that he would oppose this measure in the strongest -possible way. - -Mr. CURRIER. I have no doubt that he would. He gave me so to -understand. - -Mr. CHANEY. I think it is due to this record to say that the ultimate -responsibility about this whole matter rests with Congress, and that -these matters are all simply advisory, to help us to the proper -conclusion and result, and that none of these gentlemen are going to -be deprived of an opportunity to express themselves in whatever way -they please, and to say whatever they may have to say, and that, so -far as we are concerned, there is no star-chamber proceeding about it, -and no logrolling business about it. We are here simply to get advice -the best we can, and therefore we shall undertake to hear everybody. - -The CHAIRMAN. Mr. Chaney is entirely right. The sentiments that he has -expressed have been freely stated by the committee during the past -three or four days that we have been in session. The committees of the -Senate and the House are willing, and will be willing, to hear anyone -who has objections to or who is in favor of this bill at any time -within any sort of reason. It seems to me that it is to little -purpose, so far as the committees are concerned, that there should be -any controversy between anyone regarding the past. Who is the next -witness? - -Mr. CURRIER. I might say that it was for that reason that both -committees decided to make no effort to report this bill at this -session, but to let it go over until next winter, in order that people -could have an opportunity during vacation to file briefs and such -statements as they might desire to offer. - -The CHAIRMAN. That is the precise purpose of the statement made by Mr. -Currier in behalf of the House committee at the first session or the -second, and by myself in behalf of the Senate committee. - -Who is the gentleman that desires to be heard further? - -Mr. PUTNAM. Mr. Cromelin. - -The CHAIRMAN. You have how many minutes? - -Mr. CROMELIN. I understand that I have half an hour. - -The CHAIRMAN. You were limited, two days ago, to one hour for your -enterprises. Mr. O'Connell had a little over an hour, and I am told -that after I was compelled to leave for the Senate yesterday somebody -representing these interests had fifteen minutes. We will give you -fifteen minutes, with the privilege of submitting in writing any -further statement that you desire to make. - -Mr. CURRIER. It is necessary to do that, for the reason that two -gentlemen are on the way here from Chicago who want to be heard this -morning, representing the same interests that you represent. - -Mr. SERVEN. I present, Mr. Chairman, a letter from the chairman of the -copyright committee of the Music Publishers' Association, explaining -how Mr. Thomae, who was criticised yesterday as being one of their -delegates, came to have a seat with them in the conferences. It -occurred to me that it would save time to have it read for the -information of these gentlemen. - -The CHAIRMAN. You may put it in the record. - -(The letter referred to is as follows:) - - The CHAIRMAN OF THE JOINT SENATE AND HOUSE COMMITTEES ON PATENTS. - _Washington, D.C._ - - DEAR SIR: I beg to make reply to an accusation against the Music - Publishers' Association of the United States yesterday by the - manufacturers of mechanical perforated music rolls, cylinders, and - disks, in which they claimed our association had corralled into - its ranks, by promise and contracts, the Victor Talking Machine - Company, of Camden, N.J. They further claimed that the Librarian - of Congress had made no attempt to seek them out and give them - representation at the various conferences he had called for the - purpose of securing suggestions from organizations of authors, - composers, and others interested in receiving copyright protection - for their productions. - - I beg to state that the copyright department during the interim - between the first and second conferences conferred with me and - asked if the talking machine and music roll manufacturers had an - organization. I replied that I did not know but would inquire - about it. About that time I met Mr. R. L. Thomae, a representative - of the Victor Talking Machine Company, who had just drafted a bill - with the view of presenting it to Congress, for protection on - musical compositions for which his company had secured the right, - having expended about $35,000 for well-known artists who had sung - in the records for them. They wanted protection from the pirates - in their own business from copying such valuable subjects. As a - result of our talk Mr. Thomae decided to drop the bill and secure - protection in the new copyright draft which was then being - formulated. - - Mr. Thomae and myself made a trip to Washington, called on the - copyright department, and it was agreed, in view of the fact that - the talking machine people had no organization, that the delegates - from the Music Publishers' Association should be increased from - two to three, provided the third member was some representative of - the talking-machine interests. After conferring with the president - of the association it was decided to do this, and Mr. Thomae was - selected as such representative. We believe that the talking - machine people should have as good protection as ourselves on - their original or characteristic works embodying the personalities - and instrumentation of their artists, bands, orchestras, etc., - employed by them. - - We hereby declare that the Victor Talking Machine Company has no - contracts of any kind whatsoever with any member of the Music - Publishers' Association of the United States in regard to any - future purchase for use of compositions belonging to us. This - statement will explain in detail how the Victor Talking Machine - Company came to be associated with the Music Publishers' - Association in the copyright conferences held to aid in drafting - the bill here under consideration. All statements to the contrary - are not substantiated by the facts. - - On behalf of the Music Publishers' Association of the United - States, whose list of members is attached, I beg to remain, - - Sincerely, yours, - - GEORGE W. FURNISS, - _Chairman Copyright Committee_. - - - _Members Music Publishers' Association, June, 1905 to 1906._ - - Allbright Music Company, Chicago, Ill. - Anthony Brothers, Fall River, Mass. - Ascher, Emil, 24 East Twenty-first street, New York. - Biglow & Main Company, 135 Fifth avenue, New York. - Bloom, Sol, Forty-second street and Broadway, New York. - Boosey & Co., 9 East Seventeenth street, New York. - Bouvier, A. J., Fall River, Mass. - Chandler-Held Company, 439 Fulton street, Brooklyn, N.Y. - Ditson, Chas. H., & Co., 867 Broadway, New York. - Ditson, J. E., & Co., Philadelphia, Pa. - Ditson, Oliver, Company, Boston, Mass. - Ellis, Jno. F., & Co., Washington, D.C. - Feist, Leo, 134 West Thirty-seventh street, New York. - Fischer, Carl, 6 Fourth avenue, New York. - Fischer, J., & Bro., 7 Bible House, New York. - Frain Publishing Company, 20 West Fifteenth street, New York. - Francis, Day, & Hunter, New York. - Goggan, Thos., & Bro., Galveston, Tex. - Gordon, H. S., 1241 Broadway, New York. - Groene, J. C., & Co., Cincinnati, Ohio. - Hald, J. R., Company, 337 Wabash avenue, Chicago, III. - Harms, T. B., Company, 126 West Forty-fourth street, New York. - Harris, Chas. K., 31 West Thirty-first street, New York. - Haviland, F. B., Publishing Company, 125 West Thirty-seventh - street, New York. - Jacobs, Walter, 165 Tremont street, Boston, Mass. - Lyon & Healy, 199 Wabash avenue, Chicago, Ill. - Mills, F. A., 48 West Twenty-ninth street, New York. - Molineux, Geo., 150 Fifth avenue, New York. - Novello, Ewer, & Co., 21 East Seventeenth street, New York. - Parks, J. A., Company, York, Nebr. - Paull, E. T., Music Company, 46 West Twenty-eighth street, - New York. - Remick, J. H., & Co., 45 West Twenty-eighth street, New York. - Rohlfing Sons' Music Company, Milwaukee, Wis. - Schmidt, Arthur P., 146 Boylston street, Boston, Mass. - Schuberth, E., Company, 11 East Twenty-second street, New York. - Sherman, Clay, & Co., San Francisco, Cal. - Stern, J. W., & Co., 34 East Twenty-first street, New York. - Summy, Clayton F., Company, Chicago, Ill. - Swisher, M. D., 115 South Tenth street, Philadelphia, Pa. - Thiebes-Stierlin Music Company, St. Louis, Mo. - Thompson, C. W., & Co., 13 West street, Boston, Mass. - Thompson Music Company, 169 Wabash avenue, Chicago, Ill. - Vandersloot Music Company, Williamsport, Pa. - Victor-Keemer Company, Chicago, Ill. - White-Smith Music Publishing Company, Boston, Mass. - White-Smith Music Publishing Company, Chicago, Ill. - White-Smith Music Publishing Company, 13 East Seventeenth - street, New York. - Whitmark, M., & Sons, 144 West Thirty-seventh street, New York. - Witzmann, E., & Co., Memphis, Tenn. - Wood Music Company, The B. F., Boston, Mass. - York Music Company (A. von Tilzer, manager), New York. - - -STATEMENT OF PAUL H. CROMELIN, ESQ. - -Mr. CROMELIN. Before proceeding, I would like to make this point -clear: That Mr. O'Connell yesterday, in appearing before your -committee, was representing the perforated-roll interests. I represent -the talking-machine interests, which means more in dollar -capitalization than the perforated-roll interests. I trust, while I -shall endeavor to finish my remarks in fifteen or twenty minutes, that -if General Walker is willing, you will extend my time to half an hour. - -The CHAIRMAN. We are compelled to limit you absolutely to fifteen -minutes. - -Mr. CROMELIN. Very well, sir. - -Mr. Chairman and gentlemen of the committee, on behalf of the Columbia -Phonograph Company and the Columbia Phonograph Company, General, sole -sales agents for the American Graphophone Company, I protest against -those portions of the proposed copyright law by which it is proposed -to extend the copyright protection to reproductions to the ear, so as -to include under the term "writings," as this term is used in the -Constitution of the United States in the protection of authors and -composers in their writings, mechanical or other reproductions to the -ear; and, in particular, in so far as this bill may be construed to -cover talking machine sound records in any form soever. - -In view of the fact that you are going to limit me to fifteen minutes, -I think it best that I should state specifically my reasons for -opposing this bill, and I have put them down in writing. I have -fifteen specific reasons, and I would request that during the time I -am stating these reasons I shall not be interrupted. I invite the -committee at the conclusion of my statement of these specific reasons -to ask any questions they wish, and I request permission to appear -before the committees at some future time, during the recess of -Congress, to explain in detail all the statements that are made. -Without attempting to elucidate, gentlemen: - -First. We protest that such legislation, in so far as it relates to -talking machine sound records of any kind, is unconstitutional. - -Second. That such legislation is against public policy and directly -contrary to the spirit and progress of the times. - -Third. That the demand for such legislation does not emanate from the -great mass of the musical authors (composers), nor is it demanded by -them, but has been conceived by certain selfish individuals who have -conspired together to form and create a giant monopoly, the like of -which the world has never known. - -Fourth. That such legislation, instead of being in the interest of the -composers, is directly opposed to their real interest, which is to -have the greatest possible distribution of such records as the best -means for creating a demand for their sheet music. Abundant evidence -can be furnished to sustain this fact, if desired. - -Mr. CURRIER. It is desired. - -Mr. CROMELIN. Fifth. That it is class legislation in the interests of -the few as opposed to the enjoyment and happiness of the masses, whose -rights seem regularly to have been lost sight of during its -preparation, and that it is particularly vicious when the rights of -the poor are considered. - -Sixth. That in so far as the question of copyright must of necessity -be viewed from an international standpoint, it is inadmissible, -intolerable, and distinctly un-American to grant to foreign composers -the right to extract toll from every American citizen where such right -is denied such foreigner at home in his own land and is denied to -American composers abroad. - -I hope during the recess to explain my connection with this matter. I -was the representative of my company in Berlin, Germany, for four -years, and had occasion to appear in this very matter; and I want to -warn you gentlemen against what happened there. I trust that freedom -will be given to all mechanical musical instruments and that no Æolian -monopoly will be able to tack on a provision which will give them -perforated-roll rights and exclusive rights. I propose to show that -this monopoly is not of a national character, but the attempt to -create it is an international conspiracy. - -Seventh. That such legislation is directly contrary to all recent -legislation in foreign countries, the most important of which is the -act of the German Reichstag in 1901, by which perfect freedom is given -to use copyrighted works for the purpose of mechanical reproduction; -and by which, by reason of an interpretation announced by the minister -of justice prior to the third reading of the bill, the right to record -and reproduce any copyrighted work by means of talking machines was -expressly permitted. - -Eighth. That such legislation is contrary to the spirit of the Berne -convention. - -Ninth. That in no other country is substantially like protection -afforded to composers, but that such protection has been universally -denied. - -Tenth. That even if such rights were granted under the laws of Great -Britain, Germany, France, Belgium, and other countries, which they are -not, it is beyond the power of Congress to do other than that which it -is expressly permitted to do under our Constitution, and the only way -by which such a law could be enacted which would stand the test of the -highest court of judicial inquiry would be by an amendment to the -Constitution of the United States. On behalf of my company, I protest -against being plunged into such long and expensive litigation as would -necessarily ensue if this bill becomes a law, unless the necessity for -the same is urgent, and this I emphatically deny. - -Eleventh. That such legislation is in direct contradiction to all -recent judicial decisions on the subject in this country and abroad in -which common law rights and statutory rights of authors and composers, -their scope, extent, intent, and purpose have been discussed, the most -noted of which in this country is the decision handed down by the -United States circuit court of appeals, second circuit, during the -last week of May, in the Æolian suit against the Apollo Company, -Judges Lacombe, Townsend, and Coxe, without a dissenting voice, -approving and upholding Judge Hazel's opinion rendered in the court -below sustaining the contention that the perforated roll is not a -violation of the copyright, and it is interesting to note that the -court went out of its way to say: - - The argument that because the roll is a notation or record of the - music it is, therefore, a copy would apply to the disks of the - phonograph * * * which it must be admitted is not a copy of the - sheet music. - -In England the same position is taken by the courts, the leading and -most recent case being Boosey _v._ Whight, in which it was clearly -held that the perforated roll was not a violation of the copyright. In -Belgium, by decree of the fourth chamber of the court of appeals in -Brussels, December 29, 1905, in the case of Massenet and Puccini, -composers, _v._ Ullman & Co. and Pathe Frères, manufacturers, in -dismissing the suit, with costs, the court uses this language--I want -to say to you, gentlemen, that this was a graphophone case: - - Considering that these apparatus can not be assimilated to the - writing, or the notation by an engraving process, of the thoughts - of the author; that they have nothing in common with the - conventional signs permitting reading or comprehension of the work - to which they are related; that isolated from the rest of the - instrument they remain in the actual state of human knowledge, - without any utility, that they are only one organ of an instrument - of execution. - -In dismissing the suit the court referred to a similar suit decided in -France February 1, 1905, in which it was confirmed that-- - - airs of music on disks or cylinders of graphophones and gramophones - do not constitute a musical infringement. - -Twelfth. That the proposed legislation in so far as relates to -mechanical reproductions is in furtherance of the plans of certain -powerful interests to obtain a monopoly--an international monopoly--on -mechanical reproducing instruments of all kinds, and that they are -attempting to use the legislative branch of the Government to secure -that which has been repeatedly denied them by the courts. - -Thirteenth. That it is vicious, in that if it is permitted to be -enacted into law it will deal a deathblow to great American industries -which have been extended until now they embrace all countries, and in -which millions of dollars have been invested in the knowledge that the -right to manufacture was perfectly lawful and that the right to -continue such manufacture, unhampered by such ruinous conditions as -would be imposed by this bill, could never be brought into question or -become the subject of serious dispute. - -Fourteenth. That if this bill becomes a law it will seriously affect -the rights of thousands upon thousands of American citizens who have -purchased these machines and who have the right to expect to continue -to use them and to obtain the supplies for them at reasonable prices -instead of paying tribute to a grasping monopoly. - -Fifteenth. And finally, that whatever arguments may be advanced by the -association of musical publishers (and their allied interests, whose -representatives framed the bill, and who, if it becomes a law, will -get 99 per cent of the benefits to be derived therefrom), regarding -other methods of mechanically producing sound on the theory that the -same constitutes a method or system of notation and under certain -conditions may be read by persons skilled in the art, under no -circumstances can such arguments be truthfully advanced to cover or -apply to talking machine sound records. - -No man living has ever been able to take a talking-machine record and -by examining it microscopically or otherwise state what said record -contains. In this sense it stands preeminently in a class by itself, -being unlike perforated rolls, cylinders containing pins, metal -sheets, and other devices used in mechanical production of sound, and -is not to be likened in any manner to the raised characters used in -methods of printing for the blind, where by the sense of touch the -meaning is intended to be conveyed. The sense of touch is a mere -incident due to the disability of the blind, but it is perfectly -feasible and easy to read the characters with the eye, and they are -very properly the subject of copyright. I repeat, that to attempt to -decipher a phonograph disk is in the very nature of the proceeding -"reaching for the impossible." How utterly preposterous and ridiculous -it would be to pass this act in its present shape, which would make a -telegraphonic sound record, which is something that can not even be -seen--the record itself being caused by the magnetization and -demagnetization of an electric current of an ordinary piece of wire or -a cylinder or disk of steel--a violation of the copyright laws. - -You have seen several examples, gentlemen, of methods of reproducing -sound. Mr. Cameron showed you yesterday the disk form of -talking-machine record. [Exhibiting disk.] That record, if you were to -examine it under a microscope, is an engraving of the sound, which is -produced by a method wherein the sound waves are engraved laterally at -a uniform depth. - -Another form is the cylindrical record. Mark you, gentlemen, our -company is the only one on earth that manufactures both forms. We are -vitally interested in this legislation. In the cylindrical record the -cut is of uneven depth. It is an up-and-down cut. - -There are other methods, and one or the most important discoveries of -the age--a discovery which was considered of so much importance that -at the St. Louis Exposition of 1904 it was given great prominence in -the Government exhibits--is the telegraphone. - -I have here a record [exhibiting record] and I would like to ask Mr. -John Philip Sousa if he can recognize "The Stars and Stripes forever" -upon it. I would like Mr. Bowker, who stood up yesterday and said that -he could read the music roll--which I emphatically deny--whether he -recognizes an address of Mr. Victor Herbert upon this form of record -[exhibiting record]? - -I doubt very much whether these persons who have come down here for -the purpose of putting through this legislation have ever seen this -thing. They do not know what it is, even. That is the sound record. I -do not know what it is. Nobody knows what it is until you put it on -the machine. Yet it can be reproduced indefinitely, and it can be -destroyed by that peculiar power which we know not, because no one -knows at the present time what electricity is. I want to tell you what -you are doing: When you pass this bill and make it a law, you make -that piece of steel copyrightable [indicating]. You make this record -spring copyrightable. You do not see anything on it. Look at it -closely. There is nothing but a magnetic current--an electric -current--by which the sound is actually recorded and can be reproduced -indefinitely. I regret, gentlemen, that I am not able to show you; and -I hope at the sessions of Congress, or during the recess, to -personally demonstrate what I am bringing to your notice this morning. - -There is one other point I would like to bring to the attention of you -gentlemen, and that is this: That in the cylindrical form of talking -machine it is not necessary for the manufacturer to make the roll. In -every other mechanical instrument which has been referred to here the -process is a factory process; but, as I am speaking, the very words -that I am uttering are being taken down by Mr. Hanna, and in less time -than an hour these words will be transferred to a graphophonic record; -and by that means to-morrow morning you will get your printed record. -For fifteen years the reports of the House of Representatives and the -Senate of the United States have been prepared in this manner. And -now, when you make this bill a law I can not, notwithstanding the fact -that I have purchased a piece of music of Mr. Herbert, take that which -I have purchased and sing it into my machine at all. It is impossible -to do so. I wish to draw this fine distinction, and show you that in -the cylindrical form of talking machine it is not a mechanical -operation which is done in a factory, but that it is an instantaneous -form of photographing the voice. I would like to have a notation made -of that. - -You have limited me as to time, but before closing I want to show you -what the practical operation of this bill would mean. - -The CHAIRMAN. Your time has expired. - -Mr. CROMELIN. May I have just one moment? - -The CHAIRMAN. You may have one minute more. - -Mr. CROMELIN. I would like to show you the point of the multiplicity -of royalties. Under this law I go down to John F. Ellis's and buy a -sheet of music composed by Mr. Victor Herbert. I pay the royalty at -the time that I buy that music. I am a singer and I want to sing it. I -go to a talking-machine company; but no, I do not dare. I must seek -Mr. Herbert. And he says: "You are going to make a big sum on it, and -you must pay me $25." I pay him $25, and I go to the talking-machine -company and the company does not dare to proceed. They must first seek -Mr. Herbert. Mr. Herbert says: "You are going to make a lot of money -out of this; I want $100 before you can make the record." We pay that -for the record. - -I do not know when I get the record whether I am going to get a thing. -It goes through a factory process, which costs me another hundred -dollars, and then the record is made. I am about to announce the -record to the people of the United States, and to give them the -privilege of hearing it. What happens? No; I do not dare to do it. -Every American has to pay tribute to Mr. Herbert. Before I can sell -those records Mr. Herbert must get a royalty of 10 per cent on every -one of them. I do not believe it is the meaning of the Constitution to -do this. - -Let us go one step further. At a recent banquet in Portland, Oreg., of -the "Ad. Men's Association," by arrangement with the telephone -company, over the seat of every person who participated in that -banquet there was a little horn attached to the telephone, and there -was a Columbia graphophone at the central office. But if this bill -becomes a law the telephone company would not dare do that. They would -not dare give the people in the country the privilege of an evening's -entertainment, where they can not get to the big cities, without first -arranging with Mr. Herbert. Mr. Herbert would say: "No; you can not do -this. I want a hundred dollars' profit before you do that." After you -have done it, everybody who pays a toll of 5 cents for an evening's -entertainment to the telephone company pays its tribute to Mr. -Herbert. I do not believe that that is the intention of you gentlemen. - -I regret that I am so much limited as to time, and I hope to appear -before you during the summer session, as I believe that I can throw -some new light on the situation. - -Mr. CURRIER. You gentlemen speak of the committee holding sessions -during the summer season. The House has no such authority. The members -of the House are likely to have a very busy season, and it will be -impossible to get the House committee here during the summer. But the -House committee will be here on the first Monday in December, ready to -hear you gentlemen. - -Mr. CROMELIN. I thank you very much for your attention. - -Mr. CHANEY. In the statement that you submit I would like to have you -make it specific as to which sections you object to, and make your -argument apply to those sections. - -Mr. CROMELIN. I shall be glad to do that. - -Senator SMOOT. And let it follow your remarks in the record? - -Mr. CROMELIN. Yes, sir. - - -STATEMENT OF ALBERT H. WALKER, ESQ., OF NEW YORK. - -Mr. WALKER. Gentlemen of the committee, I sincerely thank you for the -compliment implied in giving me an hour in which to express my views -upon this bill. The allowance is liberal, and it will not be extended -except at the request of the committee. My hour will be an hour of -sixty minutes, and my remarks will end at twenty minutes before 12, if -they end in the middle of a sentence. - -I do not appear in behalf of any particular interest, although I have -one client which is interested in one section of the bill. I do not -propose, however, to address myself particularly to the interests of -that client. I do propose to address myself to the bill as a whole. - -I think that the gentlemen who prepared this bill are to be thanked by -the committee, and by the people of the United States, and by -everybody else, for the large amount of labor which they have devoted -to the preparation of that proposition for legislation. I particularly -desire to express my personal appreciation of the labors of Mr. -Putnam--his entirely disinterested and very skillful labors in the -preparation of the bill. - -We have had copyright laws in this country now for exactly one hundred -and sixteen years, and none of them have been scientific; none of them -have been systematic; none of them have been well developed. It is -high time that the whole system of legislation upon the subject should -be put upon a scientific basis and should be developed in a scientific -form. This bill is a sincere attempt to accomplish that result. It -contains a number of provisions which I heartily approve. It contains -much that I think ought to be amended. I trust that out of this bill, -and before the end of the present Congress, a bill will be evolved -which will be enacted into law, and which will be just as to all -parties and of very much benefit to the American people, and of -benefit to the composers and the authors, who are the particular -subjects of the bill. I believe, however, that before that result is -accomplished extensive amendments must be made in this bill. - -I am going to devote the first ten minutes of my time to stating the -principles upon which I think those amendments ought to be framed, and -after that I am going to apply those principles to portions of the -bill, to show what changes would result from the application of those -principles to the bill. In order to say what I intend to say on the -subject of principles, it will be necessary for me to indulge in a few -moments of historical statement. - -When the scholar looks over the civilizations of history, he finds -only one principle that pervades them all, and that principle is the -principle and idea of the continuity of private property. China, -Greece, Rome, Babylon, Nineveh, Judea, Egypt, England, Germany, -Russia, the United States are all pervaded, as Japan is, by the notion -of the continuity of private property. And when I speak of the -continuity of private property I mean its continuous continuity, its -hereditable character, its passing down from father to son, from age -to age, and from generation to generation. - -My good friends Victor Herbert and John Philip Sousa, men whom I -respect personally as well as professionally, are basing their desire -for the passage of this bill upon the notion which they have that that -idea of the continuity of private property inheres in their -intellectual productions; and there is exactly where my brothers are -mistaken. - -I am myself an author. I am an author of books and writings. A hundred -of them probably have been published. I am the author of a very large -number of addresses, which have been delivered without writing, on -religious, historical, economic, legal, scientific, and miscellaneous -subjects; but I know, as well as I know any proposition in history or -in law, that I have not any element of private property in any of -those intellectual productions, in the sense in which I am defining -private property, namely, with the idea of continuity. - -Why is that so? It is so because from the foundation of the world -until now there never was a nation and there never was a day when the -idea of the continuity of private property was connected in the minds -of men with intellectual productions. England has developed the idea -of private property more fully than has any other nation; and England -never ascribed the idea of the continuity of private property to any -intellectual production, either for an invention or for a writing. To -this day no man has a right in England to a patent on an invention, -and never has had. The granting of any patent on an invention in -England is dependent entirely upon the pleasure of Edward the Seventh; -and the patents themselves, when granted, each one of them sets forth -that fact, and states that Edward the Seventh thinks on the whole that -it will benefit the realm to grant this patent, and proceeds to grant -it. But if Edward the Seventh and those who represent him choose to -decline to issue a patent in pursuance of any particular application -they can do so in entire conformity with the laws of England. - -In respect to the protection of private property relevant to -intellectual productions in the domain of books or musical -compositions, this is the history in England: Prior to the time of -Milton nobody had a right to publish anything in England without the -permission of the Crown, and that permission was granted or refused, -not with reference to the deserts or the merits of the author or the -composer, but with reference to the opinion of the Crown as to whether -or not the published thing would be beneficial or not beneficial to -the public interests. And the Crown usually identified the public -interests with the interests of the Crown, so that it suppressed what -it desired to suppress and permitted to fly what it desired to be -published. - -At the time of the Commonwealth publication became free and was free, -but there was still no notion of any exclusive right to publish a -particular literary or musical composition inhering in the author of -that composition; and that right never did begin and never was heard -of in England until the reign of Anne, when Parliament passed a -statute establishing such a right for a limited time. - -In 1769 a copyright which had been issued under the statute of Anne -had expired, and the owner of that copyright determined to test the -question in the English courts as to whether or not there was a -perpetual right of copyright under the common law of England, -regardless of the statute of Anne, and the owners of that copyright -brought suit for its infringement after the term established by the -statute of Anne had expired; and the question whether such a -common-law right existed or not came before the court of king's bench -when Lord Mansfield was chief justice of that court. The court of -king's bench decided, as an academic proposition, that there had been -anciently an exclusive right to an intellectual production under the -laws of England. That was, however, a purely speculative statement. -They could not point to the time when anybody asserted any such right -or to an instance when anybody had acquiesced in it. They simply took -the ground, as an academic proposition, that anciently there had been -such a right. They also decided, however, that whether that right -existed or not, it had been ended by the statute of Anne, and that the -statute of Anne circumscribed the right to the limited time provided -for by that statute. - -From that decision or the court of king's bench the plaintiff appealed -to the House of Lords, sitting in its judicial capacity. We sometimes -have the notion that when the House of Lords sits in its judicial -capacity all the peers of the Realm--500 in number--assemble together -and hear the arguments and render a final decision, but it is not so. -Only the law lords participate; and if an ordinary nobleman should -venture to sit when the House of Lords was sitting in its judicial -capacity he would be hooted out of the room, and his presence would be -made to appear to him to be extremely unwelcome. The number of law -lords that sat at the time of the hearing of that argument was 11, and -6 of them rendered the opinion that the statute of Anne was the only -foundation known to the law of England for exclusive right to an -intellectual production, and that therefore the plaintiff was not -entitled to recover. - -That was the situation of the laws of England at the time of the -foundation of our Union, at the time of the Declaration of -Independence, and at the time of the framing of our Constitution. In -1787 our Constitution was framed, and the fathers inserted in that -Constitution this provision: - - The Congress shall have power to promote the progress of science - and the useful arts by securing, for limited times, to authors and - inventors, the exclusive right to their respective writings and - discoveries. - -That is the only foundation that exists for the patent laws of the -United States, and it is the only foundation that exists for the -copyright laws of the United States. It is true that a copyright when -it is issued in accordance with the statute made in pursuance of that -Constitution is property, but it is not property in the historic sense -of property. It entirely lacks the notion of continuity. It entirely -lacks the notion of permanency. It is a species of property created, -and not arising out of the circumstances of civilization and human -life, as property in general has always done, long preceding -governments. It is a species of property created by the law-making -power, and a species of property created by the law-making power in a -matter not inherently subject to property right. - -In creating that particular property the constitutional convention was -influenced by this consideration: We will not grant a permanent -property right in any intellectual production, because in our judgment -that would be inconsistent with the progress of civilization as a -whole, but we can consistently, with the progress of civilization as a -whole, grant a limited property right in an intellectual production. -Therefore they did provide in the Constitution that though Congress -might give to authors an exclusive right, the right must be limited in -point of duration, and therefore Congress has not the slightest power -to grant a permanent right in any intellectual production. - -Victor Herbert may hereafter, as I hope he may, rival some of the -great composers of the past and produce music far better than the -splendid music that he has thus far produced, but if he does it will -be impossible for Congress to reward him and his heirs with a -permanent absolute property right in any such intellectual production. -The best we can do, Mr. Herbert, is to give you a limited right to -your intellectual production. That limited right is limited not only -in respect of duration, but it is limited in respect of quality, in -respect of formal expression, and it is limited thus: There shall be, -according to the constitutional provision, an exclusive right for a -limited time and for a limited form of expression, and that limited -form of expression is defined by the word "writings." - -Mr. Chairman and gentlemen of the committee, I have spent my laborious -life as a lawyer, a scholar, an inventor, an author, and a lecturer. I -have delivered hundreds of addresses that never were reduced to -writing. I have delivered but few that were. In so far as I delivered -those lectures that were never reduced to writing, I am not entitled, -either by law or by ethical principles, to any exclusive right. I am -entitled to an exclusive right to my intellectual productions only -when I reduce them to writing and file them in the office of the -Librarian of Congress, where they will remain a permanent monument, -and can be handed down to future times and can be read and availed of -by my contemporaries. - -The Constitutional Convention wisely provided that if the American -people are to grant a monopoly in an intellectual production the man -who makes that intellectual production shall give it to the American -people; and he gives it to the American people by first furnishing -them the fullest information of its character, in the case of a -patent, or in the case of a copyright he gives it to the American -people by consenting to the terms upon which it was issued, namely, -that it shall be free after the expiration of the limited time for -which it was granted. Further than that, in taking out a copyright, or -in taking out a patent, the man consents that the copyright shall be -confined to his writing, and shall not extend to any other form of -expression of his intellectual idea. - -I am not alone in this. The Supreme Court of the United States is with -me. - -Mr. CHANEY. Just a moment: It has not occurred to me that this is not -either a question of continuity of property or a question of the -quality of the property. It is simply a question of just to what -extent people are to be given the control of their own writings, and -as to just through what different forms they will be able to trace -their property. - -Mr. WALKER. That is the question, and that is the exact question which -I am going to address myself to now. - -Mr. CHANEY. Very well. - -Mr. WALKER. The case of the "Trade-Mark Cases" was decided by the -Supreme Court of the United States in 1880, and it is reported in 100 -United States Reports, at page 94. In that case the owners of certain -collocations of words which they were using as trade-marks sought to -sustain the validity of their trade-mark under the copyright law, -holding that those words constituted writings which were copyrightable -and which had been copyrighted. - -The Supreme Court unanimously decided that the statute which they -invoked, which statute was abundantly broad enough to cover that -provision, was unconstitutional, because although these collocations -of words were writings in the literal sense they were not writings -within the sense of the Constitution. In so deciding, the Supreme -Court narrowed down the meaning of the word "writings" instead of -extending it, by holding that the Constitution gives a monopoly not to -writings in general but only to such writings as have some literary -character and permanent value in themselves. This is the language of -Justice Miller: - - And while the word writings may be liberally construed, as it has - been, to include original designs for engravings, prints, etc., it - is only such as are original and are founded in the creative powers - of the mind. The writings which are to be protected are the fruits - of intellectual labor, embodied in the form of books, prints, - engravings, and the like. - -The case which the Supreme Court had before it on this subject next is -the Sarony case, decided in 1883, and reported in 111 U.S., page 58. - -Mr. CHANEY. We had that yesterday. - -Mr. WALKER. In that case Mr. Sarony sought to sustain the validity of -a copyright upon a photograph of that then very ornamental gentleman, -Oscar Wilde. It turned out that in this picture which Mr. Sarony -personally took of Oscar Wilde, in his esthetic costume at the time he -captured the hearts of the American women by his highly ornamental -appearance [laughter], Mr. Sarony had personally posed Oscar Wilde, so -as to give him a peculiar beauty, which might not have been developed -by the ordinary photographer; and the Supreme Court of the United -States sustained the validity of that particular copyright upon the -particular ground that Mr. Sarony put particular skill in the posing -of the man so as to produce a particularly artistic effect. - -But if I should go into a photograph gallery and have somebody pose me -who did not have that skill--and also because the subject would not -admit of it, and would not produce any particularly attractive -effect--and the attempt should be made to copyright that photograph, -he would go right up against the decision of the Supreme Court in the -Sarony case, and he would be told that the copyright was invalid, -because it did not involve any intellectual effort in its production. - -Mr. CHANEY. I think your picture would influence the committee quite -as much as Oscar Wilde's. [Laughter.] - -Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for -himself; and I am living still. - -Mr. CHANEY. I hope you will live long, sir. - -Mr. WALKER. Thank you. - -The next case, and the last case in which these matters have been -before the Supreme Court, is the case of Higgins _v._ Keuffel, decided -by that tribunal in the October term of 1890, and reported in 140 U.S. - -In that case a copyright had been issued, in strict conformity with -the copyright law of 1874, upon a label used for manufacturing -purposes, as a label on a bottle or a package. There was no doubt -whatever but what the copyright was in strict conformity with the -statute, but the Supreme Court held that the statute was -unconstitutional, because although the label was a writing, it was not -a writing in the sense that the Supreme Court had defined that word in -the Trade-Mark cases. Here Justice Field delivered the opinion of the -court, and he said: - - The clause of the Constitution under which Congress is authorized - to legislate for the protection of authors and inventors is - contained in the eighth section of Article 1, which declares that - "the Congress shall have power to promote the progress of science - and useful arts by securing for limited times to authors and - inventors the exclusive right to their respective writings and - discoveries." - - This provision evidently has reference only to such writings and - discoveries as are the result of intellectual labor. It was so held - in the Trade-Mark cases, where the court said that "while the word - 'writing' may be liberally construed, as it has been, to include - original designs for engravings, prints, etc., it is only such as - are original and are founded in the creative powers of the mind." - -In the year 1888, a suit was brought in the United States circuit -court for the eastern district of Massachusetts for the purpose of -subjecting a perforated roll like one of these [exhibiting] to the -domain of a copyright upon a sheet of music which had been lawfully -and regularly copyrighted. That case was elaborately litigated, and -was the subject of argument on both sides before his honor, Judge -Colt, then the circuit judge and now the chief judge of the circuit -court of appeals for the first judicial circuit. - -Judge Colt in that case, commonly called the McTamanny case, gave an -elaborate and learned decision to the effect that this perforated -paper roll, or any sheet of perforated paper like it, intended for the -mechanical reproduction of a tune, did not infringe a copyright upon -the tune thus reproduced. - -That was in 1888, and that decision was universally acquiesced in by -all the judges and all the people of the United States for thirteen -years. During that thirteen years a number of gentlemen devoted -themselves to making the machines, pianolas, or whatnot, that are -capable of being used with these perforated sheets; and among those -gentlemen is the modest and excellent inventor, Mr. Davis, who -appeared before the committee yesterday. Those men proceeded in full -reliance upon the decision of Judge Colt, acquiesced in by everybody -that they had a perfect right to perforate those sheets of music and -use them in mechanical playing instruments; and great amounts of -ingenuity have been devoted to the development of that particular art, -and large amounts of capital have been devoted to it, in full reliance -upon the decision of Judge Colt, in which everybody acquiesced. But -the Æolian Company, of Meriden, Conn.--and in the statement that I am -about to make I am going to state what is true; I can not prove the -statements here to-day, but I could prove them if the committee should -sit and take testimony and send for persons and papers---- - -Senator SMOOT. You can file the proof, can you not, Mr. Walker? - -Mr. WALKER. It would be like a big litigation to do so, and it would -be putting a very heavy expense upon me that I would hardly be called -upon to bear. But I can tell you how I know. - -Mr. CURRIER. If the statements that you are to make now are not true, -gentlemen can controvert them. - -Mr. WALKER. Certainly. They have had chances to controvert them -heretofore. This is not the first time that I am making these -statements in public. I have made them in court over and over again, -and they have passed entirely unchallenged, because they are perfectly -true. - -The Æolian Company made certain contracts with a large number of -members, and I think with every one of the members of the Musical -Publishers' Association---- - -Mr. BURKAN. I beg to deny that---- - -Mr. CURRIER. Later on you can be heard, if you wish. - -Mr. WALKER. A gentleman showed me one of the contracts to-day, and I -have it in my pocket. - -Mr. BURKAN. It was the one offered in evidence. - -Mr. WALKER. I can not be interrupted. I am telling what I know to be -true. - -The CHAIRMAN. You shall not be interrupted, Mr. Walker. - -Mr. WALKER. Thank you. The Æolian Company made contracts with nearly -all or all of the members of the Musical Publishers' Association. Each -of those contracts provided as follows: That the particular member of -the Music Publishers' Association granted to the Æolian Company the -exclusive right to make perforated sheets of paper to play the tunes -represented by all of the music published by that particular -publisher; and that contract also provided that the Æolian Company -should never pay any money for that exclusive right until the Æolian -Company succeeded in getting some court to decide that the copyright -laws covered the perforated paper roll. That contract also provided -that the Æolian Company should pay all the expenses of some test suit -made for the purpose of testing that question. - -In pursuance of that contract, the Æolian Company caused the -White-Smith Music Publishing Company to bring a suit against the -Apollo Company, in the southern district of New York, upon a couple of -little negro melodies, one of which was entitled "Little Cotton Dolly" -and the other of which was entitled "The Kentucky Babe Schottische." I -fancy that the copyright on both those negro melodies was not worth as -much as a dollar and a half, and that certainly $3 would cover the -value of both of them; but they answered the purpose of a test case. - -The Æolian Company poured out money like water in that litigation, and -endeavored to secure from the United States courts a reversal of the -decision of Judge Colt, which had been made many years before. In the -course of that litigation I was retained by the Automusic Perforating -Company, which was not a party to this litigation, but which had an -interest a hundred times greater than that of the nominal defendant. -In pursuance of that retainer I presented a petition to Judge Hazel, -before whom the case was heard, and in that petition I asked that my -client be made a defendant. And I set forth in that petition the whole -Æolian scheme in full, with all the clearness of statement of which I -was capable, and it was sworn to by my client. - -When that statement was filed before the judge, a printed copy was -served upon the attorney for the Æolian Company, Mr. Charles E. -Hughes, one of the ablest men in the United States, who has -distinguished himself in the recent insurance investigation in New -York. Anything that he does not think of is not likely to be worth -thinking of, and when he put in, as he did, an elaborate brief in -reply to my petition, he did not controvert one solitary word of the -statement of evidence set forth in the petition about the inherent -character of the Æolian scheme, which he would have done if he could -have done so. - -The CHAIRMAN. What was his reply--raising questions of law? - -Mr. WALKER. I do not think his reply amounted to a row of pins. - -The CHAIRMAN. Is that a matter of printed record? - -Mr. WALKER. His reply? I have a copy of his brief in my office in New -York. - -The CHAIRMAN. Will you send that to the committee? - -Mr. WALKER. I will; yes. - -Senator CLAPP. And your petition? - -Mr. WALKER. Yes. - -Mr. SULZER. He raised the question of jurisdiction in his reply, did -he not? - -Mr. WALKER. No; not at all. - -Mr. SULZER. What was his reply, if you remember? - -Mr. WALKER. I would rather not tell, because I do not think it is -particularly creditable to Mr. Hughes. - -Mr. SULZER. You just complimented him very highly. - -Mr. WALKER. And I do not desire to deduct anything from that -compliment. - -Mr. BONYNGE. You are going to file a copy of it, are you not? - -Mr. WALKER. Yes; but my time is limited, and if I gave the honorable -gentleman from New York an account of that it would take me ten -minutes to do so. - -The CHAIRMAN. You will have an opportunity to inspect his reply and -that petition when we have the records here. - -Mr. WALKER. Now, let me tell you the rest of the story. His reply did -not contain a word controverting my statements of fact in the -petition. He did not take any issue with the statements of fact in the -petition at all--not the slightest. But so far as his reply contained -any matter at all, it was first of all an attempt to show that my -client was not entitled to be admitted as a defendant anyway, and -that, if I was entitled to be heard, he took the ground that my -argument was not very conclusive. He did not reflect upon the petition -at all; his reply applied entirely to my argument. - -Judge Hazel afterwards overruled the petition, and the same day that -he overruled the petition he decided the case in favor of the -defendant, and followed my brief in his decision. So that the -intellectual origin of Judge Hazel's decision can be traced back to -the brief that I filed in pursuance of the petition which he -overruled. - -Very well. The Æolian people then caused that case to be appealed to -the circuit court of appeals. When the case came up there I filed a -petition in that court to be permitted to argue the case on behalf of -the defendant, and also file a brief, both of which petitions were -granted. In that petition I repeated the whole Æolian story over -again, and I served a copy of that petition on Mr. Hughes a week -before the argument came up, and he had abundant opportunity to reply -to it. I also called him up and asked him if he was going to reply to -it, and he said "No." And when he came to the argument he was as -silent as the grave; though he had nearly two hours for his speech, he -was as silent as was the grave in respect to all the allegations I had -made about the inherent character of the Æolian scheme, and confined -himself entirely to attempting to persuade the court that a perforated -paper roll was an infringement of sheet music, and that however -unconscientious the Æolian scheme might be as the representative of -the Æolian company it was entitled to the pound of flesh. - -And that was the way he met the second presentation of the Æolian -scheme. Afterwards, two weeks ago yesterday, the circuit court of -appeals for the second circuit decided against him again. - -Mr. BONYNGE. How long ago? - -Mr. WALKER. Two weeks ago yesterday. - -Mr. CURRIER. The decision is in the record already. - -Mr. WALKER. Certainly. - -Now, I wish to say this to the committee, that that Æolian scheme is -the most ingenious scheme that I ever knew to be invented by anybody -in this country for the purpose of acquiring wealth by means of a -patent or a copyright monopoly. And, further than that, I wish to say -that the Æolian scheme is so ingenious that it does not violate any -law whatever except one, and that is the golden rule. You can not -square the Æolian scheme with the Sermon on the Mount, but you can -square it with the Sherman antitrust act, and you can square it with -every statute on the statute books. They have dodged a violation of -every statute in inventing their scheme. And now they lack nothing at -all to consummate their scheme except for Congress to pass this bill -in the form in which it is drawn. That will place the capstone upon -the monument, and will give to the Æolian Company a million of dollars -a year out of the pockets of the people of the United States. And of -that million of dollars they will keep at least $900,000, and about -$90,000 of the rest will go to the music publishers, and not one cent -over $10,000 of the whole million will go into the pockets of any -music composers during their natural lives. - -In the nature of the case it must be so. My statements are not based -alone upon any special contracts or facts; but as long as human nature -remains as it is, as long as the business problem involved in -mechanical playing instruments remains as it is, it must be true that -a proposition, if enacted and enforced, to subject perforated music -rolls to copyright protection will enormously burden the American -people for the benefit of corporations and middlemen, and only very -slightly for the benefit of musical composers. - -These distinguished gentlemen--Mr. Herbert and Mr. Sousa--are so -distinguished that they can make their own terms, and this bill would -enrich them. I do not see that they need to be enriched. I believe -that these gentlemen, for amusing the American people, are each one of -them receiving more money than Theodore Roosevelt is receiving for -regulating the affairs of mankind. [Laughter.] And I myself have -contributed many a dollar to their coffers, and I have always obtained -full value therefor. I have had the pleasure of listening to two of -their operas lately, and if any of you gentlemen get a chance to hear -one of them I hope you will not miss it, because it is worth the -price. - -But this business problem that I am expounding is one of great -complexity, and while the result of many years of experience with this -general topic and the result of many months of special investigation -of this subject convinces me that all my statements as to how the -thing must work are correct, I can not, in any brief period of time, -prove these statements to be true by depositions or testimony of -witnesses. - -Mr. CHANEY. Can you give us an illustration of the respect in which -the mere copyrighting of the music roll will do all that? - -Mr. WALKER. Yes; I can. I think I can do it in three or four minutes. - -The music that the American people want to play now is made up of two -kinds--classic music, uncopyrighted music, and the current music that -comes out. Now, if this scheme were carried out the Æolian people -would have the exclusive right to perforate paper rolls in accordance -with all the current music covered by their contracts with the music -publishers; and those contracts cover at least nine-tenths of all the -music being produced month by month and year by year. - -Now, inasmuch as the Æolian Company would have the exclusive right to -perforate sheets for half the music that the people want, nobody could -sell a music-playing instrument unless it was manufactured by the -Æolian Company, because the Æolian Company as a part of their policy -would refuse to sell their perforated sheets except for use in -connection with their own instruments; and this would be the -situation: You want to buy a pianola. You go to New York and call on -the Æolian people. They say: "We will sell you a pianola, and if you -buy it from us you can use it to play any tune known to man, classical -or modern. Go over to our neighbor across the street, and he will sell -you a pianola, too, but he can only sell you music rolls to represent -classic music and uncopyrighted music. If you are contented with -Beethoven and Mozart and the masters, and do not care for Sousa and -Victor Herbert and their contemporaries, go across the street and buy -your pianola. But if you want a pianola that will enable you to play -any copyrighted music at all, you must buy it from us; for there is -not another party in the United States that can sell you one of those -machines." - -So that the passage and enforcement of this bill would practically -give the Æolian Company, of Meriden, Conn., a permanent patent on an -old machine, namely, the automatically played piano, and all other -musical instruments played by perforated paper roll. - -I assure you, gentlemen, that this bill must in the nature of the case -have that operation. So that the moment that the Congress passes that -bill, if it were to be enforced by the courts afterwards, Congress -would be giving to the Æolian Company, of Meriden, Conn., a permanent -patent on that great industry, without those people ever having -invented a solitary part of the origin of the business, and without -ever having composed a single piece of music played in their machines. - -The CHAIRMAN. Mr. Walker, had you intended to speak specifically about -the provisions of this bill? - -Mr. WALKER. I had, but I have been interrupted so much that I have not -been able to do so up to this point. Now I am going to devote myself -entirely to that. - -The CHAIRMAN. You have only twenty-five minutes. - -Mr. WALKER. I realize that. - -Mr. CHANEY. You were going to speak of the constitutionality of the -bill, also. - -Mr. WALKER. That is what I am going to take up now. - -The Constitution provides that copyrights may be granted on writings. -This bill provides that copyrights may be granted on works. The fourth -section of this bill reads as follows: - - That the works for which copyright may be secured under this act - shall include all the works of an author. - -Although this bill purports to be founded on the Constitution, and -although the Constitution is confined to the word "writings," that -word "writings" does not appear among the 8,000 words of that bill. It -is not there once. This bill is based upon the theory that Congress -has power to grant an exclusive right to works, and the word "works" -is used more than 30 times where the word "writings" ought to have -been used, and the word "writings" is not printed in that bill from -its beginning to its end. - -I am not reflecting upon any gentleman who drafted the bill in that -way, because the bill was drawn upon the theory that the Constitution -justifies copyright upon an author's works. Now, the word "works" -includes "writings" and is far more comprehensive than "writings." -Take the case of Theodore Roosevelt. He has published and printed 15 -volumes of original works, and he has delivered without writing more -than 1,500 speeches. Now, those books that he has printed and those -speeches that he has delivered are equally his works, but they are not -equally his writings, because he never has reduced those speeches to -writing. So that there is a plain distinction between works and -writings, and that distinction is recognized in this bill, as follows. -(Now I will devote myself for the rest of the time to strict analysis.) - - SEC. 4. That the works for which copyright may be secured - under this act shall include all the works of an author. - -Then twelve classes of works are enumerated. The third of those -classes of works is said to be "oral lectures, sermons, and -addresses." Now, those productions come under the head of works, and -do not come under the head of writings, confessedly. - -Mr. BONYNGE. But they could not be copyrighted until they were reduced -to writing, could they? - -Mr. WALKER. Yes; they could, under this bill. - -Mr. BONYNGE. How? - -Mr. CURRIER. What would you file in the copyright office? - -Mr. WALKER. You do not have to file anything for a year. - -Mr. CURRIER. I know that; but you have got to file something then. - -Mr. WALKER. But you get a year's copyright without ever doing that, -and this bill would give a man a monopoly of a whole year on a speech -never reduced to writing, and that is a "limited time." And if he -chooses ever to reduce it to writing, then all he has got to do is to -file one copy in the office of the Library of Congress and not publish -it at all. - -Mr. CHANEY. Well, you must remember that we must confine this to -copyrighted matter. - -Mr. WALKER. You must confine it quite narrowly, I think; but please -let me develop my particular thought. - -It is perfectly plain that under this bill a man may have a copyright -on an oral sermon, lecture, or address and maintain that copyright for -a whole year without that discourse ever being even put into -typewriting during that period. That is a perfectly plain case, -therefore, of copyrighting a work that is not a writing. - -Now, come down to subsection G, "works of art." There is another item. -Now, that word is much broader than "writings." I have made a good -many works of art myself. Everybody that invents a complicated machine -produces a work of art and a work of high art. There are a great many -works of art here in this room which could not by any possible strain -of language be denominated "writings." There is a perfectly plain case -of attempting to copyright, under this statute, a work which is not -also a writing. - -Mr. CURRIER. What change would you suggest in subsection G? - -Mr. WALKER. I have formulated such a change as that, but it would take -a little time to explain it. - -Mr. CURRIER. Very well. Take your own course. - -Mr. WALKER. I am very glad to be at the disposal of the committee, but -it would take me five minutes to explain. It is a very important -point. - -Subsection H covers "Reproductions of a work of art." There is a -perfectly flagrant case of attempting to copyright not only a thing -that is not necessarily a writing, but also a thing that is not even -original; whereas the Supreme Court has told us over and over again -that nothing can be copyrighted that is not original. - -Now, go over to the next page, page 4, Class L: - - Labels and prints relating to articles of manufacture, as - heretofore registered in the Patent Office under the act of June - 18, 1874. - -That was the very act that the Supreme Court held fifteen years ago -was unconstitutional as not authorizing copyright on things which are -not writings. So that there is a recommendation to this committee to -reenact a law that the Supreme Court has expressly held to be -unconstitutional. - -Now, come, if you please, to the second page of this bill. The first -section of this bill enumerates exclusive rights to be covered by -copyright. Subsection C is: - - To deliver, or authorize the delivery of, in public for profit, - any copyrighted lecture, sermon, address, or similar production - prepared for oral delivery. - -Mr. CAMPBELL. What page is that? - -Mr. WALKER. The top of page 2. - -Senator SMOOT. Subdivision C. - -Mr. WALKER. (Reading): - - To deliver, or authorize the delivery of, in public for profit, any - copyrighted lecture, sermon, address, or similar production - prepared for oral delivery. - -A lecture could be copyrighted under this statute without any copy -ever being put even into typewriting, as I stated a little while ago, -and that copyright could be maintained for a year, when the discourse -has no existence whatever except in the mind of the man who delivers -it, and in the ears of those who heard it, and in the air that -transmitted it from the vocal organs of the lecturer. - - D--To publicly perform or represent a copyrighted dramatic work. - -Section 4966 of the Revised Statutes covers that ground already, and -provides that copyright may cover the performance of dramatic work. -But I hold, and I hold without the slightest hesitation, that that -whole section 4966 is unconstitutional. No court has ever held it to -be constitutional, and any attempt on the part of Congress to grant a -copyright to enable a man to monopolize the rendering of a play on the -stage is preposterous. The fathers who went to Philadelphia in 1787 -had more weighty business on hand than to give to playwrights an added -grip on the monopoly of their productions in addition to the -common-law grip that they already had. At that time and now the author -of a play is abundantly protected under the common law, but Congress -in 1870 provided an additional grip for the playwright under the -copyright statute, in face and eyes of the fact that the Constitution -under which they were acting was confined to writings. But if I do not -remember wrongly (and I think the gentleman from North Carolina will -agree with my recollection) about 1870 Congress did several things -that could not be fully vindicated under the Constitution. - -Mr. WEBB. Yes. - -The CHAIRMAN. Mr. Walker, have you in mind the exact language of the -Constitution? - -Mr. WALKER. Certainly. - -The CHAIRMAN. Will you not put it on the record at this point? - -Mr. WALKER. "Congress shall have power to promote the progress of -science and the useful arts by securing for limited times to authors -and inventors the exclusive right to their respective writings and -discoveries." - - "F. To publicly perform a copyrighted musical work, or any part - thereof." - -Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and -I would like to ask Mr. Victor Herbert whether, during the last few -years, he has with his orchestra performed copyrighted music of other -composers, of which copyrighted music he purchased and had the sheets -there for the performance? - -Mr. HERBERT. With their permission. - -Mr. WALKER. Did you get any other permission than the purchase of the -sheets? - -Mr. HERBERT. That is included. - -Mr. WALKER. Did you get any special permission to perform? - -Mr. HERBERT. The permission is written on the sheet. - -Mr. WALKER. What is written on the sheet? - -Mr. HERBERT. Permission for performance. - -Mr. WALKER. It is on the sheet, is it? - -Mr. HERBERT. Yes. - -Mr. WALKER. In all cases? - -Mr. HERBERT. That is, on the corner of the sheets--"permission to -perform." - -Mr. WALKER. Very well, if in his case it is there. But this is the -situation of the law at the present time: If one of you gentlemen goes -to church and joins in the singing of a hymn that is the subject of a -copyright, you are liable to a penalty of $100 for the first time you -join in that singing, and a penalty of $50 for every subsequent time, -unless you yourself bought that particular hymn book at first hand -from the publisher. That is the law now. - -Mr. SULZER. Suppose the church bought it? - -Mr. WALKER. Then you are liable for the penalty. - -Now, that section 4966 has been violated more than a million times -since Congress enacted it in 1897, and Congress does not notice the -difference; and I take it that it has taken no steps to vindicate its -dignity. - -Mr. BONYNGE. There is a bill pending before our committee on that -proposition. - -Mr. WALKER. Yes; I understand about that pending bill, but I am -speaking of the law as it now exists. So that, gentlemen, I take the -ground that any legislation that gives to the composer of any music -the exclusive right to publicly perform that music is outside of the -Constitution, because a copyright on a writing can be infringed only -by writing; and when some gentleman or some lady stands up in a church -and sings a song out of his or her mind he or she is not doing -anything about any writing. - -Clause G is one to which I direct attention. That clause G is the one -that is directed against all music-playing instruments. The gentleman -who preceded me did not make entirely clear the nature of this -beautiful instrument that he showed the committee, which he stated was -capable of rendering music. What he showed to the committee was a -perfectly plain steel cylinder. When you look at it you can see no---- - -Mr. CURRIER. Most members of both committees are perfectly familiar -with that instrument. - -Mr. WALKER. Very well; I am very glad to hear that. There are a very -great many persons who are not. - -Mr. CURRIER. That instrument was exhibited before the House committees -in the Fifty-seventh Congress. - -Mr. WALKER. Oh, yes--then you know all about it. There are a great -many gentlemen who have not been informed about it, and I thought I -would mention it. - -Aside from the matters of constitutional consideration--I have twelve -minutes left, and during those twelve minutes I wish to devote myself -to some criticisms of this bill which have nothing to do with the -constitutional questions that I have been discussing. Those criticisms -are equally applicable whether the bill is to be framed and enacted on -the basis of "works," or whether it is to be framed and enacted on the -basis of "writings." And in any view that anybody may take about the -scope of the copyright, the criticisms to which I am now calling -attention deserve consideration. - -The first one is in section 13, which is one of those sections that is -intended to give the American manufacturer the monopoly of -manufacturing copyrighted books. - -That purpose is a good one, but that section is not well drawn to -effect that purpose, because the gentlemen who drew the section were -not thoroughly acquainted with the art of printing in its modern -development; and the suggestions I have to make to the committee are -with a view to strengthening that section so as to close up some -loopholes that the authors of the section left wide open. - -The language is: - - 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. - -The trouble there is that the author of that section supposed that the -lithographic process was the only other process of producing a book -besides printing it from type or a streotyped plate. Now, the -lithographic process is not the only process. There are modern -processes of photomechanical printing that have nothing at all to do -with lithography, that are much cheaper than lithography, and that do -all that lithography does. As an illustration, those beautiful -illustrated supplements that come out every week with the New York -Tribune on Sunday are supposed by some gentlemen to be lithographs. -They are not. They are printed on aluminum cylinders at great speed -and with great cheapness, and they are very much cheaper and very much -better than can be done by the old art of lithography. - -Mr. CURRIER. Could not that be said to be a plate within the meaning -of this act? - -Mr. WALKER. No; because a stereotype plate is meant. But that is very -easily corrected. I would suggest that for the words "by lithographic -process" be substituted "any other process." Then that covers -lithography and every other possible process. Then, on the 21st line -of that page, I would suggest the substitution of "illustrations" for -"lithographs," because illustrations may be made otherwise than by -lithography. - -The gentleman who delivered himself upon that particular subject upon -behalf of the American mechanic was uninformed about the matter, and -complained that a large number of printed illustrations were being -imported into this country that would be kept out under the -lithographic clause if you put the lithographic clause in strong -enough. Now, he is entirely mistaken about that, because the very -things that are being imported and that he complains of are not made -by lithography at all, but by another process. - -Section 15 contains a provision as to what shall happen if the -copyrighter does not deposit his copies in the office of the Librarian -of Congress on time; and there is a proviso in lines 19, 20, and 21 -which reads: - - That in such case no action shall be brought for infringement of - the copyright until such requirements have been fully complied - with. - -That ought to be amended by adding the words "or be based on any -infringement begun before the time of that compliance," because -otherwise the public would have no protection at all. A man could go -on and innocently infringe during that year, and the only protection -this section gives him is that he would not be sued until after the -end of the year, but when sued the action would be retroactive; and -that amendment ought to go in to perfect the section. - -Section 18 relates to the duration of copyright. Gentlemen, that is a -topic to which I have given great consideration, and I can do no more -than state my opinion. I should like to elaborate it, but what I would -recommend the committee to adopt on that subject is this very short -provision: That the copyrights secured by this act shall endure for a -hundred years in the case of an original book or dramatic or musical -composition (one hundred years, Mr. Herbert, I liberally advocate in -your behalf) and for fifty years in every other case. - -I am totally opposed to any law providing for the extension of any -copyright or any patent. The public ought to know, when the copyright -comes out and when the patent comes out, exactly when it is going to -expire; and it ought not to be made contingent upon anything so -uncertain as human life. On the other hand, there is every reason in -favor of giving the copyrighter a very long period of monopoly. -Seventeen years is long enough for the patentee. I am a patentee -myself. I would be very glad indeed to have Congress extend some of my -patents, but I have not the effrontery to ask Congress to do it, -because I do not deserve it. - -Mr. CURRIER. Do you think a hundred years is a limited time within the -meaning of the Constitution? - -Mr. WALKER. Oh, yes; certainly. A thousand would be. [Laughter.] And I -wish to make this suggestion: It was suggested to me that the word -"limited" meant definitely limited, and that therefore Congress would -not be conforming to the Constitution if it made the period dependent -upon any uncertain contingency. Now there is some force in that. - -Mr. SULZER. I agree with you, Mr. Walker, upon making the number of -years definite; whether you make the years few or many, make them -definite. Now, right there, without any intention to be facetious, do -you not think that fifty years is sufficient? - -Mr. WALKER. No; and I will tell you why. Harriet Beecher Stowe wrote -"Uncle Tom's Cabin" in 1853. She got a copyright on it for -twenty-eight years, then an extension of fourteen years, and at the -end of that time, in 1895, the copyright expired. Harriet Beecher -Stowe then was dead--died in 1896--but she left two maiden daughters; -and it would be a comfort to me, and it would be a comfort to all -those who honor the memory of Harriet Beecher Stowe, if those two -ladies could now be in the receipt of some royalty from "Uncle Tom's -Cabin," which they can not be. - -Mr. SULZER. Is there any government that grants a patent or copyright -for more than fifty years that you know of? - -Mr. WALKER. Not that I know of. Fifty years would be altogether -excessive for any patent. The longest period that could possibly be -vindicated by argument for a patent would be twenty years. - -Mr. BONYNGE. How about copyright? - -Mr. WALKER. I wish I could argue the matter; but I hold that all -original works ought to be copyrighted for a hundred years, and all -derivative works, such as dictionaries and encyclopedias, for fifty. - -Mr. BONYNGE. What is the longest period granted by any government, -that you recall, for a copyright? - -Mr. WALKER. I can not speak as to that with certainty. - -Mr. SULZER. Fifty years? - -Mr. WALKER. The nations are numerous. - -Now, I must come to another point, section 23, in respect of the -damages that may be recovered. Section 23 begins as follows: - - That if any person shall infringe the copyright in any work - protected under the copyright laws of the United States by doing or - causing to be done, without the consent of the copyright proprietor - first obtained in writing, any act the exclusive right to do or - authorize which is by such laws reserved to such proprietor, etc. - -The trouble with that is that it makes the man who does the thing an -absolute infringer unless he can show a consent in writing; and that -repels the whole doctrine of implied licenses and equitable estoppel, -which two doctrines are found to be absolutely indispensable to the -administration of justice in patent cases, and heretofore in copyright -cases. The idea that there can be no answer to an infringement suit for -a copyright except a written license is new in this statute. It has -never been in any copyright law before, and it would work havoc with -justice, because it would enable the wilfully malicious copyrighters to -mislead men into unwitting infringement, and then pounce on them with -an infringement suit, and then, when they set up equitable estoppel or -an implied license, say, "Equitable estoppel and implied license do not -go in this statute. You must show a written license." Words can not -express how badly that would work. - -Again, in subdivision B, this man is-- - - to pay to the copyright proprietor such damages as the copyright - proprietor may have suffered due to the infringement, as well as - all the profits which the infringer may have made from such - infringement. - -That is wrong, because it gives him two recoveries; and in patent cases -the courts have established for more than a quarter of a century that -the patentee is entitled to a recovery of profits or damages, whichever -he prefers, but is not entitled to recover both. No proposition has -ever been made, in any statute, to give anybody a double recovery until -it is made here; and here he is told that he shall have both. And what -is worse, down at the bottom there of the subsection, if it turns out -that there were no damages inflicted and no profits made, then the -provision is that the judge shall fix the damages at such a sum as he -finds to be just; and then, after the judge is told to exercise his -discretion to fix a just sum, he is told that that sum must not be less -than $250. - -On page 18, among the evils and misfortunes that are to be inflicted -upon the unwitting infringer as well as the willful infringer, is the -following. He must-- - - deliver up on oath, to be impounded during the pendency of action, - upon such terms and conditions as the court may prescribe, all - goods alleged to infringe a copyright. - -So that if anybody wants to drive his competitor out of business, all -he has to do is to file a bill alleging that the competing goods -infringe, and he does not even have to swear to that; and then, in -pursuance of that bill, all the property of that alleged infringer is -impounded during the course of the litigation. And it would be a very -dull complainant that could not keep the litigation going at least five -years, and to that extent eliminate competition. - -The next one is wickeder still. The infringer must-- - - deliver up on oath for destruction all the infringing copies or - devices, etc. - -Here is a case of an unwitting infringer. He is found to infringe. He -thought he did not infringe. Good lawyers told him he did not. The -court finally found that he did, and there, among the penalties, all -his goods must be delivered up for destruction. Now, that is entirely -wrong. The courts have decided in patent cases that under precisely -those circumstances the defendant has a right to export his goods and -sell them in foreign countries; and there is no ethical and no legal -reason why an unwitting infringer of a copyright, after having been -found to infringe in this country, should not export his goods and sell -them elsewhere. And the circuit court of appeals for the second circuit -has unanimously decided, in patent cases, that that is perfectly right. - -Mr. WEBB. Not only the copyrighted goods, but the machines themselves. - -Mr. WALKER. I will come to the other point--certainly; and he must not -only have those destroyed, but the "plates, molds, matrices, or other -means of making such infringing copies." - -My client, the Automusic Perforating Company, has a plant that cost -$50,000. That mechanism is adapted to perforating rolls, and if they -should use that mechanism in perforating 500 rolls with perfect right, -and then inadvertently use that mechanism in perforating one roll that -was held to infringe, under this bill their whole plant would be -cleared out of their place and would be destroyed. - -Gentlemen, that is so surprising a proposition that I presume it may -be of interest to know the origin of it. The patent laws of England -provide that, at the discretion of the court, infringing material may -be destroyed. That is because the Parliament of England is not subject -to any constitutional limitations, and can pass any kind of a law that -it pleases. Mr. Justice Gray knew more about the laws of England than -he did about the laws of America; and at one time, one of the two -times when he was deciding a patent case while he was on the bench, he -ran across an English decision in which it was held that the -infringing goods might be destroyed. And then, by way of obiter -dictum, without having the slightest occasion to do so, he wrote into -the decision an obiter dictum to the effect that that was the law of -this country. But the judges of the circuit courts know better, and -never have enforced that obiter dictum. And if they were to enforce it -they would violate two or three provisions of the Constitution, among -others that no person shall be deprived of property without due -process of law. - -But the authors of this provision, taking the hint from that obiter -dictum of Justice Gray, have not only applied it to the same matter -that Judge Gray applied it to, namely, the infringing thing itself, -but to the entire plant of the infringer. - -(At this point it was announced that Mr. Walker's time was up.) - -Mr. WALKER. I promised to stop at the end of an hour, and I will do -so. - -The CHAIRMAN. Can you finish what you desire to say regarding the -provisions of this bill in five minutes additional? - -Mr. WALKER. Well, I can talk five minutes; I ought to have ten. -[Laughter.] - -The CHAIRMAN. We will give you five minutes more because of the -interruptions. - -Mr. WALKER. Yes. - -Section 30, in respect to this matter of importations--I am now -speaking on behalf of the gentlemen, no one of whom I know, namely, -those who desire to be protected in this country against the -competition of the labor of Europe in getting up copyrighted books. -Section 30 reads: - - That during the existence of the American copyright in any book the - importation into the United States of any foreign edition or - editions thereof (although authorized by the author or proprietor) - not printed from type set within the limits of the United States or - from plates made therefrom, or any plates of the same not made from - type set within the limits of the United States, or any editions - thereof produced by lithographic process not performed within the - limits of the United States, in accordance with the requirements of - section 13 of this act, shall be, and is hereby, prohibited. - -Now, gentlemen of the committee, that prohibition does not amount to a -row of pins. It is as void as is the atmosphere around the North Pole -at Christmas time of all human interest, because, although one would -suppose by a superficial reading that it put a fence up around all -parts of the lot, it leaves at least half the sides of the lot entirely -uninclosed. Thus, it prohibits nothing except the importation of an -entire edition. Now, somebody may say: "No; it is not an entire edition -it is aimed at, but only one specimen of the edition." - -But I say in response to that, that that language "Edition or editions" -is taken out of the present statute, and in the present statute the -words "edition or editions" are confined in their meaning to entire -editions by the circumstance that the present statute prohibits also -the importation of individual copies. So that if Congress were to enact -that section, and it should come before a court, the lawyer for the -defendant would say: "It is perfectly plain that Congress intended to -change the law. Formerly, in its wisdom, it prohibited the importation -of an edition or editions, and also the importation of individual -copies. Now it has expressly left out prohibition of the importation of -individual copies and prohibited only the importation of an entire -edition," and there would not be any answer whatever to that argument. - -Mr. SULZER. Then, in the interest of the working people of the United -States, you would prefer to have the law left just as it is now? - -Mr. WALKER. That would be much better than this; but I would -strengthen that law. I know how to strengthen it, and I---- - -Mr. SULZER. Will you tell us, briefly, how you would strengthen the -present law? - -Mr. WALKER. Yes; I would do it by amending this section in three -places, very simply, if the stenographer will take this down. - -Mr. SULZER. He takes everything down. - -Mr. WALKER. Very well. I propose that section 30 be amended in the -interest of American mechanics by substituting the word "copy" for the -words "edition or editions" in line 5 of page 23. Then in line 9 of -that section---- - -Mr. SULZER. "Or any part thereof?" - -Mr. WALKER. Wait a moment--and by substituting the word "copy" for the -word "editions" in line 9 of page 23; and by substituting the words -"any other" for the word "lithographic" in line 10 of page 23. Now, -with those amendments, every door would be closed, and the American -mechanic would be protected at every point. - -Mr. SULZER. Would that preclude any part of that edition being -imported? - -Mr. WALKER. It would, because that language, "or any part thereof," is -contained elsewhere. - -Section 32: There is a statement that-- - - all actions arising under the copyright laws of the United States - shall be originally cognizable by the circuit courts of the United - States, the district court of any Territory, the supreme court of - the District of Columbia, the district courts of Alaska, Hawaii, - and Porto Rico, and the courts of first instance of the Philippine - Islands. - -Gentlemen, one of the competitors of the gentlemen before me wrote an -opera, and that was George Ade, and in this opera he inserted this -witticism: - - The Constitution may follow the flag, but the cocktail is sure to. - -We are told by the Supreme Court that the Constitution does not follow -the flag necessarily; it follows it if Congress sends it there. Now, if -in the wisdom of Congress the copyright law should be extended to -Hawaii, Porto Rico, and the Philippine Islands, that can be accomplished -only by a statute expressing that intention. And the statement that the -courts in those outlying regions shall have jurisdiction of copyright -cases amounts to nothing unless you extend the copyright laws to those -portions of the earth's surface. I am not in favor of doing it; but if -you want to make copyrights effective in those outlying regions you -must do so by express enactment. - -Here is a more important matter: - - Actions arising under this act may be instituted in the district of - which the defendant is an inhabitant, or in the district where the - violation of any provision of this act has occurred. - - That ought to be amended by substituting the word "his" for the - word "the," because as it reads now you can sue a man for somebody - else's infringement. - -Mr. CHANEY. So that it would read "his violation?" - -Mr. WALKER. Yes; substitute "his" for "the." Then there should be -added to that section this language: "And wherein the defendant has a -regular and established place of business." - -The public policy involved in that point has been threshed out for -many years in patent cases; and in patent cases it has been found to -be unjust to compel anybody to submit to an action for infringement of -a patent in any district unless it be in the district of which he is -an inhabitant, or a district where he has a regular and established -place of business. You can not sue somebody for infringing a patent -merely by proving that he did formerly infringe that patent in a -particular district away from home, or by finding him in that -particular place. You can not go to Chicago and sue a New York man for -infringing a patent on the allegation that a year or so ago he did -infringe that patent in the northern district of Illinois, unless you -prove also that he has a regular and established place of business in -Chicago. No man ought to be sued for infringing a copyright except in -the district where he resides; or, lacking that, in the district where -he is engaged in business. - -Mr. CHANEY. Then you would favor the defendant rather than the -complainant in such a case? - -Mr. WALKER. No; I would be just to both; and my proposition is deduced -from the present patent statute, and that patent statute is deduced -from considerations of justice as they have worked out during fifty -years of patent litigation as on the whole being most equitable. - -Section 35 provides that "In all recoveries under this act full costs -shall be allowed." - -That ought to be amended by substituting the word "actions" for the -word "recoveries," so as to permit recovery in behalf of a successful -defendant as well as in behalf of a successful complainant; and the -word "full" ought to be erased, and these words ought to be added "in -accordance with law," so that the section would read: - - That in all actions under this act, costs shall be allowed in - accordance with law; - -and the law that would be put into operation by that amendment would -be those general statutes of the United States which relate to the -taxation of costs in all litigations in the United States courts. - -Here is a bad section, 43-- - - That in place of the original instrument of assignment there may - be sent for record a true copy of the same, duly certified as such - by any official authorized to take an acknowledgment to a deed. - -That opens the door wide to fraud, because hardly anything is easier -than to get a notary public to certify that one document is a copy of -another, particularly where he is acting in a capacity outside of his -office, and therefore would not be liable for any inconvenience or -penalty if the certificate should turn out to be false. So here is a -proposition to make the ownership of a copyright depend upon the -record in the copyright office of an alleged copy of an assignment, -which alleged copy may be fraudulent, and if fraudulent then resulting -in no punishment to the wrongdoer. - -Mr. CHANEY. You would confine that to some other official, then; would -you? - -Mr. WALKER. No; I would take it out altogether, and leave it as in -patent cases--that only originals are entitled to be recorded. Such a -thing as allowing a copy of an assignment of a patent or a copyright -to be recorded in the place of the original is entirely unknown, and -it would open the door widely to fraud. - -The CHAIRMAN. Your time has expired, Mr. Walker. - -Mr. WALKER. Yes. I wish to express my thanks to the committee for -hearing me so long and so patiently, and to express my best wishes for -the future of the bill, and my own entire willingness to contribute, -if I am found to be competent to contribute, to the perfection of the -bill hereafter. - -Senator SMOOT. Mr. Walker, I have been wondering, for the hour that -you have been delivering your intelligent speech here, on what basis -your congratulations were extended to Mr. Putnam and other persons who -took part in the preparation of this bill. [Laughter.] - -Mr. WALKER. Why, I am surprised that you did not see that. - -Mr. PUTNAM. I can say, Senator, It is because they have had the -benefit of such lucid criticism at such an early stage. I can say that -it was not expected by us that anyone would take up this bill with -such a penetrating intelligence as Mr. Walker has shown, within a week -after its introduction into Congress. - -Mr. WALKER. And I wish to say to the Senator from Utah, if I may be -permitted, that while I have criticized this bill in plain terms, the -framework of the bill as a whole is very scientific, and in one day or -two days I could so amend the bill as to entirely remove all my -objections and still preserve the substance of the scheme which Mr. -Putnam has put upon paper. - -Senator SMOOT. I have been very much interested, Mr. Walker, in your -statement. - -Mr. SULZER. Mr. Chairman, I agree with the Senator from Utah; I have -been very much interested in what Mr. Walker has said, and I was going -to make this suggestion: That he be allowed to file a brief with the -committee, which will be printed in the record as a part of the -record. - -The CHAIRMAN. That was understood the other day. - -Mr. WALKER. Thank you very much. - -Mr. SULZER. Mr. Chairman, I would be glad to have the committee hear -now Mr. Nathan Burkan, who represents the publishers and composers of -music. - -Mr. CURRIER. Mr. Sulzer, two gentlemen who are now present have come -all the way from Chicago to address the committee and have just this -moment gotten here. - -The CHAIRMAN. We will hear Mr. Burkan after them. - -Mr. CURRIER. We will hear him later. - -Mr. PUTNAM. Mr. Chairman, you have requested me to remind the -gentlemen present that it is the desire of the committee to have a -register of the names of all who have attended these hearings, and the -capacity (if they desire to indicate it) in which they have been here. -Some of you who were not here before will find opportunity to register -at the door, and I would suggest that as the register was not opened -until Thursday, any of you who know of any persons present on -Wednesday who had left by Thursday, and whose names therefore did not -appear upon the register, will please pass a memorandum of their names -in to us. - -Mr. Chairman, I have a memorandum handed in which I offer to the -committee on behalf of Mr. Charles W. Ames, calling attention to a -misunderstanding, as he has believed, of two sections, section 3 and -section 19, and another communication simply filing objections to -certain sections, 13, 18, 32, 33, and 34, and desiring an opportunity -later to be heard. - -The CHAIRMAN. They will go in the record. - -(The papers above referred to, together with a letter from Mr. Leo -Feist, were directed to be made part of the record, and are as -follows:) - - WASHINGTON, _D.C._, _June 9, 1906_. - - Mr. HERBERT PUTNAM, _Librarian of Congress_. - - DEAR SIR: I wish to file with the committee at this time - objections to sections 13, 18, 32, 33, and 34 of the copyright - bill. I will indicate briefly the grounds of my objection and will - make further argument on them at some future time if the committee - should desire. - - Yours, respectfully, - - CHARLES W. AMES. - - - _Section 13, page 9._--I have always objected to the proposed - affidavits of domestic manufacture. I believe there is no real - need for it and that it imposes an unnecessary burden on the - copyright proprietor and the copyright office. It has been - demanded only by the Typographical Union, which claims to have - private reasons for believing that the requirement of domestic - manufacture is being frequently violated by publishers. The - records of the copyright office do not show such violations, nor - have I ever heard of any being shown in the courts. The publishers - generally throughout the country regard this requirement as an - imposition and an outrage--that on the suspicion of the - Typographical Union they should be required to swear that they - were not violating the law whenever they take out copyright. The - publishers would have questioned the propriety of this measure - when it was pending before the last Congress if opportunity had - been offered, and strenuous opposition would have been made to the - passage of the bill. - - At the first conference last year, the representatives of the - Association of Publishers, in a spirit of conciliation, agreed - with the representatives of the Typographical Union that they - would not oppose the requirement of an affidavit. As a member of - that Association of Publishers. I shall not now oppose the - affidavit section as a whole, which requires me to swear five - hundred times a year that I have done something, failure to do - which would have invalidated many thousands of dollars' worth of - copyright property. - - But I do object earnestly and emphatically to the final paragraph - of section 13 (lines 21-25, p. 9), requiring the statement in the - affidavit of the particular establishment in which the work has - been done. This fact is wholly irrelevant to the purpose of the - affidavit and has no bearing on the requirements of the copyright - law. It is purely a private business matter. In case the affidavit - is challenged (as it would be in only an infinitesimal proportion - of registrations) and proof of domestic manufacture is required in - any action, of course the establishment would be readily shown. - Copyright proprietors should not be required to disclose it - otherwise, satisfying the curiosity of business rivals and others. - - It seems also an unnecessary insult to the publishers to provide - special penalties for false affidavits. Will not the ordinary - penalties for the crime of perjury be sufficient to cover all - cases where publishers, in addition to jeopardizing their property - rights by violating the provision for domestic manufacture, swear - falsely in the premises? - - I believe that Mr. Sullivan, in behalf of the Typographical Union, - stated at the last conference that the union was not disposed to - insist on the specification of the establishment in the affidavit - if it should appear that this fact was unnecessary and irrelevant - to the purpose of the affidavit. I hope that the union will make - no opposition to the elimination of this provision, which is - obnoxious to the publishers. By so doing they will at least - minimize the opposition of the publishers to the affidavit - provision as a whole. There are very many publishers throughout - the country who are not members of the association referred to, - and will not be governed by the agreement made at the conference. - - The date of publication, if given in the affidavit, might serve - for convenience as furnishing an essential fact to be a part of - the record covered by the Librarian's certificate. - - _Section 18, page 14._--This section relates to the term of - copyright. In fixing the term I think due consideration has never - been given to the fact that a vast majority of copyrights become - commercially worthless after a very few years. Thus the records of - the copyright office show that last year but 2.7 per cent of the - copyrights completing their original term of twenty-eight years - were thought by the authors of sufficient value to renew them for - the additional fourteen years under the comparatively simple - provisions of the present law. - - It is safe to say that not more than 5 per cent of all the - copyrights have any commercial value after twenty-eight years. It - would seem feasible to provide for the extension of the property - rights in these valuable literary or artistic properties without - conferring undeserved or undesired extensions of term in hundreds - of thousands of copyrights of no pecuniary value to the owners. On - the other hand, there is some intrinsic value to the public in a - portion of the copyrighted material after it has lost all - pecuniary value to the author or his assignee. - - I believe that the great majority of copyrights should fall into - the public domain at a definite and easily ascertainable time. I - hold, therefore, that the ordinary copyright term should be no - longer than the twenty-eight years as fixed at present. But the - few valuable copyrights could be secured for a much longer term by - a simple and easy arrangement for renewal, as by requiring merely - the filing of a notice of the desire to extend and allowing the - author or his heirs to file such notice; or, in case there has - been an outright assignment, permitting the author and assignee or - licensee under royalty to join as provided in section 32 of the - present draft. - - Some provision should also be made for the renewal of valuable - proprietary copyrights of the sort enumerated in subsection _(b)_ - of section 18. - - _Sections 32-33, pages 26-27._--My most serious and strenuous - objections are to this section 32, regarding actions arising under - the copyright law, and especially the second paragraph, providing - that actions may be brought and jurisdiction secured in any - district of the United States where violation of any provision of - this act has occurred. This means that any copyright proprietor or - any publisher may be brought into any district in the United - States or every district simultaneously in the case of many - articles sold generally throughout the country. And it therefore - concerns very nearly every person interested in the copyright law. - - Every copyright proprietor may be defendant in a suit as well as - complainant. Suits may be brought in good faith or for malicious - reasons; for the real protection of property or for harassing - business rivals. They may be well founded or groundless, honest or - frivolous. Now, speaking as the proprietor of a large number of - copyrights and a great deal of valuable copyright property which I - am anxious to protect against infringement, I would much prefer to - forego the advantages offered to complainants under this section - rather than run the risk of the infinite vexation which might be - caused my company as defendant in malicious and frivolous suits - brought in foreign jurisdictions chiefly for purposes of - blackmail. - - I see no good reason why copyright proprietors should have - facilities for the use of the Federal courts not accorded to any - other class of suitors. It is true that certain classes of - copyright property may require special provisions for their - protection, but it should be noted that section 966 of the Revised - Statutes is by this bill retained (see sec. 64), and would - therefore still protect dramatists and musical people in the - peculiar rights which they now have under the present law. - - The penal provisions of this bill are severe and even harsh, - including misdemeanor clauses with fines and forfeitures and even - imprisonment. On the other hand, the law is full of novel - provisions. It will be, at best, years before these can be - judicially construed so that they may be generally understood. - Meanwhile, everyone concerned will find many doubtful points and - open questions on which legal advice will vary, and can in no case - be conclusive. To subject authors and publishers to the danger of - being peremptorily summoned to defend an action in a distant - district for some supposed violation of some provision, "any - provision of this act," however insignificant, with the issuance - of ex parte injunctions operative throughout the whole country, - with possible "impounding" of important and valuable publications - for an indefinite period of time (during the pendency of the suit, - see sec. 23, p. 18), a publisher in New York might sue his - neighbor across the street in any distant district, possibly - Alaska or the Philippine Islands; a rich and powerful house might - crush a feeble competitor by forcing him to defend suits brought - simultaneously in a hundred jurisdictions. These possibilities may - well terrorize all persons interested in copyrightable property of - any description. - - Finally, I say from long experience that it is a mistaken kindness - to make copyright litigation easy. The protection of the copyright - law is chiefly moral. Remedies for actual wrongs committed are in - most cases illusory. A copyright suit should never be brought - except for the most serious reasons and to protect large business - interests. - - I believe, therefore, that section 32 should be eliminated - altogether from this bill, unless it is thought necessary to - retain the first paragraph; and I suppose section 33 would go with - it. If this were done, perhaps section 4966 of the Revised - Statutes should be incorporated in the new law at this point and - reenacted for the sake of completeness, if the committee thinks - that it should be retained. - - _Section 34, page 28._--The limitation of actions in the present - law applies only to actions for penalties and forfeitures. I do - not think it should be applied, as in this section 34, to all - actions; if it should be so applied the term should be at least - six years (which is the rule with patents, I understand). The - statutes should show clearly that the time runs from the date of - the discovery of infringement by the complainant. In these days of - an ever-increasing multitude of publications, the copyright - proprietor should not be required to examine everything which is - issued to see whether his works have possibly been pirated; nor - should he be debarred from seeking a remedy if knowledge of piracy - should come to him long after the offense has been committed. - Unfairness is not always shown on the face of an infringing work, - and direct evidence is often required to prove this even to the - injured proprietor. - - - [Memorandum by Charles W. Ames.] - - JUNE 9, 1906. - - As a constant attendant at the last two conferences, I venture to - offer a few words in explanation of two sections of this bill, - which, I think, have been misunderstood by some of the gentlemen - who have appeared before the committee. - - Section 3 has been supposed to have some particular reference to - and bearing on now existing copyrights taken under the present - law. On the contrary, I understand this section to be general and - permanent in its character, the purpose of the last three lines - being to specifically protect all copyrighted matter for its - proper term and no longer, when reproduced in whole or in part, - under license or otherwise, in connection with a later copyrighted - work. This section is very important as definitely clearing up for - the future a question which has been frequently raised in - connection with the present law. - - Section 19, on the other hand, relates merely to now existing - copyrights. It has the laudable purpose of extending the benefits - of the new law to authors of valuable literary and artistic works - copyrighted under the present law. The provisions at the end of - the section are designed to secure such new privileges to the - authors without interfering with the vested rights and investments - of their publishers. After such authors have enjoyed the full - forty-two years of monopoly granted them under existing law, they - may secure such additional term as is to be accorded to authors - under the new law; but if under the contracts which they have - already made they have conferred rights upon their publishers as - assignees or licensees, then they must have the publishers join - with them in their request for the extension. - - It is questionable whether, in the absence of such provision, the - new privileges could be lawfully conferred upon authors who have - assigned their rights without impairment of existing contracts. - For example, when an author has sold his copyright altogether, the - publisher has combined with the literary property investment in - plates, stock, and good will, which should not be taken from him - at the expiration of the copyright term. In such cases, he could, - under the provisions of the present section, secure an extension - of exclusive rights only with the help of the author with proper - compensation, and the author could secure extension only by fair - consideration of the publisher's rights. If they fail to agree, - they are left just where they expected to be when they made their - contract under the terms of the present law. - - As to the licensee for publication under royalty, I see no - objection to the addition of such a provision as was proposed by - Mr. Ogilvie, to protect the author against unfair treatment in - respect to future royalties. - - - WASHINGTON, D.C., _June 8, 1906_. - - The CHAIRMAN OF THE JOINT COMMITTEE ON PATENTS OF THE SENATE AND - HOUSE OF REPRESENTATIVES. - - SIR: At the meeting of the Joint committee held to-day, counsel - representing one of the talking machine companies made a statement - to the effect that Hon. Herbert Putnam, Librarian of Congress, in - the preparation of the copyright bill had called into conference - only such interests as he wanted, and with whom he was in league, - and intimated that the Librarian has acted in an unfair manner. - - When recess was taken and the gentleman was leaving the building, - I called him aside and emphatically took exception to the remarks - referred to. As one attending but not participating in the last - two conferences held, I think it no more than fair and just and my - duty to express to the joint committee the fact that Mr. Putnam's - course throughout the conferences was fair, just, and equitable to - all interests represented, and that every interest concerned was - invited to present its views. - - The interests were varied and frequently antagonistic, and Mr. - Putnam was decided in his expressions that every representative - should be heard to the fullest and freest extent, and that after - the wishes of those interested was ascertained he was confident an - equitable bill would be the outcome; that while it might not be - satisfactory in every respect to each, yet he felt positive that - with the assistance of the Department of Justice, the Treasury - Department, and the cooperation and counsel of the American Bar - Association, and the Bar Association of the City of New York, no - interest or line of industry, whether represented or not, would be - unjustly or unfairly treated. His attitude in all of the - conferences was in the highest degree dignified and impartial. - - To my positive knowledge the trade journals, as well as the - newspapers, contained full information concerning the copyright - conferences and the proposed copyright bill as long ago as - February, 1906; yet the gentleman referred to claims that the - conferences were star chamber proceedings for the benefit of - selected private interests. No interested concern could have - failed to become acquainted with the fact that the conferences - were being held, and no one seeking admission was denied - opportunity to present his views. - - This statement is made solely for the reason that the unjust, - unfair, and undeserved criticism of Mr. Putnam, known to me to be - absolutely true, has stirred my deepest indignation, and I present - this protest to the committee and ask that the reflections upon - Mr. Putnam be stricken from the record. - - Sincerely, yours, - - LEO FEIST. - - -STATEMENT OF FREDERICK W. HEDGELAND, ESQ. - -The CHAIRMAN. Whom do you represent? - -Mr. HEDGELAND. I represent the Kimball Company. - -I wish to state, gentlemen, that three or four days ago I first -learned of the introduction of this measure. I have heard what the -advocates of this bill have said with reference to there being one -side to this question. There are really four sides to this -question--the public, the composer, the manufacturers of the automatic -musical instruments, and the inventors that have made that industry -possible. - -The bill as drawn practically gives the monopoly of all this capital -that has been invested, the genius that has been displayed and made -this field possible to the composer, to the publisher and composer, in -its entirety. Now, the brains and effort that have made this market -open to the publisher should be recognized in this bill. The bill -should not be a retroactive one, to punish the inventor and the -capitalist for what they have done in the past to provide a field for -the composer. - -Mr. CURRIER. It will not be retroactive. - -Mr. HEDGELAND. It must be equitable; and as to any rights that are -conveyed in that bill to the publisher or the composer, it must put -these industries on an equal footing. Otherwise it is creating one of -the worst features of trusts that one can conceive of. - -In a recent suit it has been claimed that these instruments discourage -education in music. Such is not the case. In a recent test case it was -proven and never contradicted that learning, both vocal and -instrumental, has increased year after year, and that the sale of -these staff notation copies has been increased rather than diminished -by the automatic musical instruments. Now, those things all being -taken into consideration, I think this industry deserves very careful -equitable consideration on your part. - -I have had no time to prepare the different phases of this matter, and -would like, if the committee will give me permission, to file a short -brief from the manufacturers' and inventors' standpoint. - -The CHAIRMAN. You may have that privilege. - -Mr. HEDGELAND. With that, gentlemen, I will not take any more of your -time. - - _To the joint committee of the Senate and House_: - - In obedience to the privilege extended me on my short address June - 9 by your honorable committee I now file the following brief: - - There are, without question, four vital interests involved in the - copyright legislation now before your committee, as applying to - mechanical reproductions of musical compositions, as set forth - specifically in section 1, paragraph (g), and section 38; this - bill, H.R. 19853, also bristles in many sections with conditions - that might easily be construed as applying to mechanical industry, - and calls for careful analytical legal investigation. - - The interests of equity involved are: The inventor; the composer; - the manufacturer of automatic instruments and their controllers; - the public. I shall take up the equities in the order named. - - _The inventor._--Being an inventor, and the majority of my - inventions being on automatic musical instruments and devices for - making the controllers (which patents largely outnumber any - contributed by any other individual to this art), I am well fitted - to state the part these devices have taken in the advancement of - music. Automatic musical instruments date back six decades or - over. The barrel organ, with its cylinder and pins, was used to - accompany divine worship in English churches before pianos adorned - the homes of the congregation, and they have been constantly - manufactured up to the present time, and are known now as - orchestrions. Twenty-three years ago, at the inventions exhibition - held in London, England, automatic reed organs (æolians) were - exhibited by the Mechanical Organette Company, of New York, and, - mechanically, I had charge of the instruments on exhibition. There - were also exhibited piano players of French and German manufacture - and the Miranda pianista, an English pneumatic player. Both - æolians and piano players have constantly been manufactured up to - the present time, inventive genius constantly laboring for - perfection in operation, ease of operation, and reduction of cost - to place them in reach of the masses. It is a fact beyond dispute - that barrel organs are as old as or older than pianos or reed - organs. - - I have labored twenty-three years in this industry and contributed - between thirty and forty patents to the automatic-instrument - industry, and have invented and patented machines that would - record on controllers for automatic musical instruments the - conceptions of pianists and authors, when played on an instrument - by them, and I have yet to acquire a competency for my labors. The - inventor's labors are always discounted by the following - conditions: - - First. Capital and machinery to market and manufacture the - invention. - - Second. State of the prior art as brought out in the Patent Office - search. - - Third. The liability of infringement and the slow and tedious and - expensive process of stopping it, taking testimony from Maine to - California, etc. I have a case of flagrant infringement which was - prosecuted four years ago and has not yet been adjudged by the - circuit court--as is usual in such cases, temporary injunction - being denied, which the composer or author could and does readily - obtain. - - _The composer._--The composer or author of musical compositions - rarely, if ever, follows composing or copyrighting alone as the - means of making a livelihood. In all my experience I can not - recall a single instance where this has been the case. With - practically no exceptions, the composers of musical compositions - are engaged in various other walks of life, and this line of work - is more or less incidental to the occupations they follow. As an - illustration I will name a few of them: Band masters, professional - pianists, organists, choir leaders, teachers of music, piano - salesmen, music salesmen, and many other callings. The amount of - time or application spent in framing musical compositions is - oftentimes but a few hours and in the majority of cases in - otherwise idle hours. For instance, the testimony of George - Schleiffarth, given under oath, which appears later in this brief. - He states: "I have composed 1,500 pieces in thirty-seven years and - have netted only $5,000 for these thirty-odd years." This is an - average earning of $3.33 for each piece he copyrighted, or a - yearly income during these thirty-seven years of $135 per year - from his copyrights. It is patent to anyone that he did not - procure his livelihood by this means. This is not an exceptional - case, but rather a fair average of them. - - I do not believe a single case can be produced where a musical - composer has earned a livelihood by his compositions alone. This - is a very different case with the author of a book with whom the - composer shares like privileges under the copyright act. In the - majority of cases the author follows writing as his only means of - livelihood. This class of work occupies a great deal of time, - expense, travel, and study of the subjects forming the foundation - of his work. The composers rarely treat their compositions as a - serious business proposition, but rather as a side issue of net - gain on what they realize from them. The publishers of the country - are banded and organized together for mutual protection and - enrichment to profit by this condition at the expense of the - composer, the policy to fight royalties in favor of outright - purchases for nominal amounts being general. - - _The manufacturer of automatic musical instruments and their - controllers._--The equitable interest of the automatic instrument - manufacturer consists really of two classes, namely, their rights - as legitimate manufacturers to a self-made industry; and the part - they have taken in the musical education of mankind, and the right - they have to continue uninterrupted in an industry and art in - which they have been so potent a factor, without molestation. - - First. All manufacturers of automatic musical instruments or their - controllers have vast interests involved. Capital and time have - been heavily spent in creating an honest, legitimate and, beyond - question, legal business. They have acquired patent rights, built - at large expense special machinery to make a more perfect and less - costly product. In short, have exercised and exhibited the same - ambition and enterprise that is put into any business where price - and merit is the determining factor of success. - - Second. The manufacturer of self-playing instruments has done much - to extend and create cultivated musical taste in the community. - - This has at no time been at the expense of the composer, but, to - the contrary, has increased not only the sale of sheet music but - has not diminished the study of music, as the following witnesses - testified under oath in the recent copyright case: White Smith - Music Publishing Company _v._ Apollo Company, which testimony was - never rebutted or disputed as to fact. - - Mr. George Schleiffarth, witness called on behalf of defendant, - being duly sworn, testified as follows: - - "I have been writing music for thirty-seven years. I have written - about fifteen hundred copyrighted compositions, several comic - operas, and innumerable musical sketches of all sorts. I have also - published some music personally and have now compositions with - nearly all the leading publishers in the United States. My - best-known compositions are 'Doris,' 'Ambolena Snow,' 'Douglas - Club Two-step,' 'Who Will Buy My Roses Red?' and the comic opera - 'Rosita,' which has been playing for about twelve years, * * * and - as the composer is anxious to be known, I have often asked my - publishers to allow the reproduction of my compositions on - graphophones and self-playing devices. - - "Q. 5. Is it your actual observation that the demand for the sheet - music is created and stimulated so that the sale thereof is - increased by having the musical compositions played by the piano - players and other self-playing instruments, and that the cutting - of the perforated rolls for a given musical composition and the - selling of such rolls with and for the piano players does increase - the demand for the sheet music?--A. As I am not in the sheet - business on such a scale that I could judge to what extent it has - increased, I still claim, from knowing the amount of music sold in - the United States to-day, especially in the popular composition - line, it is stimulated by all self-playing devices. For example, I - would sit at a piano player and play a catchy melody; six or eight - people standing around me will immediately ask--or some of them - will--'What is this tune you are playing?' and I know from - personal knowledge that many copies, especially of my own - compositions, which are cut for self-players, have been bought in - sheet-music form on account of my playing them on the machine. - - "Redirect: - - "Q. 22. I inferred from your statements in that regard that you - received usually what you regard as very small compensation or - price for a great many of your compositions thus sold. Will you - give some instances of this sort, illustrating the disparity - between the price you received and the popularity, in sales, of - the pieces respectively?--A. My first great success, 'Careless - Elegance," which I published on royalty twenty-eight years ago, - and which is still selling to-day, netted me $11. My great song, - 'Who Will Buy My Roses Red?' which sold 100,000 copies, netted me - $83. My great composition, 'The World's Exposition March,' $5. - 'The Cadet Two-step' (50,000 copies sold), $4. And so I may go on - ad infinitum. Out of 1,500 compositions I have probably earned - $5,000." - - - "PETER C. LUTKIN, witness called on behalf of the defendant, being - duly sworn, testified as follows: - - "Q. 4. Have you in mind the rate of growth in respect to pupils in - attendance in the school of music for which you are dean, for five - or six years back; and if so, will you kindly give us the facts in - general?--A. I have the statistics for the past five years. The - attendance in the school of music for the year 1898-99 was 248; - for the next year, 297; the next, 348; for the next, 366; for the - present year, 460. The figures for the present year are an - underestimate rather than an overestimate, as the year is not yet - closed; actual number is 453 to date, but will probably run to - 475. - - "No cross examination." - - - "JULIUS W. PETERS, a witness called on behalf of the defendant - company, being sworn, deposes and testifies as follows: - - "Direct examination by Mr. BURTON: - - "Q. 1. Please state your name, age, residence, and occupation.--A. - Julius W. Peters; age, 45; residence, 4465 Oakenwald avenue, - Chicago, Ill.; bookkeeper for Chicago Musical College. - - "Q. 2. In your capacity of such bookkeeper, have you been - intrusted with the keeping of the attendance of that - institution?--A. I have. - - "Q. 3. Will you please state what those records show as to the - rate of growth of the attendance of pupils at that institution - during recent years, giving, if you can do so, the rate from year - to year, down to the current year?--A. I have taken this report - from the year 1896-97, and our years run from September to - September, The increase from 1896-97 to 1897-98 over the preceding - year was 9.6 per cent, in the following year 10 per cent, in the - next year 10 per cent, in the next 23-3/4 per cent, and in the - next year 12.9 per cent. - - "Q. 4. Can you give, from the indications so far in this year, the - approximate rate of increase?--A. I should say it would be at - least as much as last year, which was approximately 13 per cent. - - "Q. 5. What is the total increase in attendance from the first - year of which you have stated the figures, to the present - time?--A. 75.3 per cent; that is, up to September, 1902. - - "No cross-examination." - - - "Mr. WILLIAM MCKINLEY, a witness called on behalf of defendant, - being duly sworn, deposes and testifies as follows: - - "Direct examination by Mr. BURTON: - - "Q. 1. Please state your name, age, residence, and occupation.--A. - William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music - publisher. - - "Q. 6. During the period, say, for the past three years, during - which the manufacture and sale of these automatic players has been - most rapidly increasing, what has been the fact with regard to the - sales of sheet music, as to growth or diminution?--A. My business - has greatly increased. - - "Q. 7. If you have made any examination with regard to the - compositions which have been cut in perforated rolls and used in - automatic players by the different companies making such players, - as to the sales which have been made of these pieces in - sheet-music form during the period, say of the last three or four - years, or since the time when they were cut in perforated rolls, - will you state how the sales of such pieces have run? Have they - increased or decreased during those years?--A. My business has - very greatly increased in certain pieces that I know are issued in - the form of a perforated roll. - - "Q. 8. Have you in mind--if so, you may state as near as you - recall--the rate of increase of any number of those which you have - looked up and remember, giving their titles, if you recall them; - and, if not, in general?--A. The sales of some of the pieces have - doubled within the last two years--double what they were for the - four years previous. I have traced up about 20 pieces of that sort - to get these figures from which I stated the comparison above. I - know when I desire to get new music for my family I call on the - operator or performer of some of the stores that handle the music - rolls. They often give me a list of the pieces. I usually purchase - that. I have a list in my pocket of perhaps at least 20 pieces - that I have been recommended to purchase. They have been - recommended to me by one of the young men who has charge of that - department--music rolls--in one of the stores; pieces I had never - heard before. - - "Q. 9. I understand you mean by your last statement that the - pieces that you are recommended to purchase are so recommended by - persons who have opportunity to hear them played by means of the - perforated rolls?--A. Yes, sir. - - "No cross-examination." - - - "WALTER LUTZ, witness, called on behalf of defendant, being duly - sworn, deposes and testifies as follows: - - "Direct examination by Mr. BURTON: - - "Q. 1. Please state your name, age, residence, and occupation.--A. - Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.; - salesman with H. B. McCoy in the music business, Chicago. - - "Q. 2. How long have you been employed as music salesman?--A. - Sixteen years. - - "Q. 3. From your experience as a salesman of sheet music, have you - had any opportunity or occasion to judge what effect, if any, the - introduction and increasing use of the piano players and other - automatic instruments of this class has upon the demand for and - sale of the sheet music of the same compositions?--A. Yes; I have - had people come in the store and ask for music which they had - heard from the various players. - - "No cross-examination." - - I wish to call the committee's attention to the fact that the - above testimony was taken to prove the opinions expressed by two - witnesses for the plaintiffs were in error when they stated as - their opinion that the mechanical player was detrimental to the - sale of sheet music. Note the lawyers for the White Smith Music - Publishing Company did not dispute the facts by not - cross-examining these witnesses. The plaintiff is a big music - publishing house and influential members of the Music Publishers' - Association, with all the evidence and aid their association could - lend, could not and did not attack these undisputable facts. It is - a coincident worthy of your close attention that W. M. Bacon, a - partner in the plaintiff's firm in this case and also of the - copyright committee of the Music Publishers' Association, who was - leader of the prosecuting forces and signally failed to prove that - this industry did other than to improve the sale of music, now - comes to your committee with a copyright measure framed by his - associate on the copyright committee of his association. - - Mr. G. W. Furniss, who is chairman, presented it and had it - drafted in at the first conference, at which they both were - present, and they were at every other conference to guard their - conspiracy; conspiracy I say, because Mr. Bacon's firm has a - contract (and his lawyers had to so stipulate), identical to the - contract filed with your committee, between a publisher and the - Æolian Company. Read the contract; they have conspired against the - composer and against the public for an undue personal gain, - grafted what they wanted in their copyright measure, and now come - to you gentlemen with it under the guise that the composer is - being robbed of his dues by automatic devices. I submit it is a - prima facie case of the principals to this contract not only - planning to sweat the composer, but to hold up the public. It is a - conspiracy in which the copyright office has aided them, possibly - innocently, and they have asked your assistance, the public funds - paying the expenses, the same public they want to get under their - grasp. I can prove every word of this at any time. Is it not time - Uncle Sam should arouse? - - _The public._--The public side of this question is an important - one. They have purchased in good faith instruments and - self-playing devices and invested their money on the reasonable - assurance of being able to continue undisturbed in these rights, - and, by their patronage, have helped develop one of the foremost - industries of this country and must be permitted to continue to - buy controllers from the different manufacturers of their - instruments. The public's spending power in this industry, being - the foundation of this great and prosperous industry and the - foundation on which compensation is now sought by copyright - legislation for the composer, it is obvious that it must not be - impaired at this late date by any measure calculated to give - either the composer or his publishers legislation that will place - either of them in a position to dominate this extensive industry - and interests, and the public. - - - PERTINENT POINTS OF FACT. - - This bill, H.R. 19853, as presented, is an iniquitous measure, - framed not by the "poor composer" nor by the public interested, - but by banded, bonded interests, which have conspired together for - special privileges and greed and have had the audacity to submit - it to Congress for its seal of approval. There is no secret now - about this. The Librarian's records show, as also his admissions, - that the interests I have enumerated in this brief were never - notified of intended proceedings and never invited, although these - uninvited interests are the very ones bartered in in the bill. The - conferees at the conference consisted of the Book Publishers' - Association, the Music Publishers' Association, etc. The two - mentioned could hardly represent the authors and composers. Have - they any credentials to this effect? The facts are, they represent - copyrights they own and for which they seek further favorable - concessions, out of which the exploited beneficiaries, the - composers, would get nothing. - - It had been maintained that mechanical players tend to discourage - learning and reduce the sale of copyright music, but all the - evidence taken on this subject proves the contrary is the case, - and it was never questioned, even by counsel representing the - publishers, who now seek special privileges. The publishers can - not prove that they have paid an average of 1 per cent on - copyright music they have published, nor the composers that they - have earned an average of 1 per cent on their copyrights, in an - industrial field of their own, yet they ask legislation giving - them a dominating interest in an industry that other brains and - money have created. Any amendment to this measure placing all - interests on an equitable footing will be fought by its advocates, - showing their corrupt intentions. This industry has been hampered - for past years by threats of the mentioned combinations, and - Congress in any new bill should clearly define whether this - mechanical matter is or is not included in the amendment. To end - this matter once and for all, I am in favor of giving the - composers (not the proprietor or owner of a copyright) the - specific right to copyright his composition as applied to - mechanical reproductions, and to collect reasonable royalties from - manufacturers who may wish to use it, leaving it to a court of - equity to determine what a reasonable equity would be, if such a - measure is considered advisable. I should urge that, as this - provision will apply solely to mechanical reproductions and - receive its benefits therefrom, the term of this copyright should, - in all equity, take the life of a patent with which it associates. - - The following parallel ethical equities with the case of the - composer might well be considered by the committee: - - The architect, the man of brains, who conceives a wonderful - conception of a piece of architecture or arrangement of a - building, how can he prevent anyone else from duplicating this - result or building it, which is the creation of his conception and - work? A man discovers a treatment for some disease; others use it - and apply it. A surgeon discovers a new form of operation; the - others use it. A business man, by dint of his brain, figures out a - great system for running his business, which makes it immensely - profitable; his fellow-beings adopt it and don't pay him a cent. - There are hundreds of parallel cases. Gentlemen, if it had not - been for this gigantic conspiracy you would not have heard of the - composer's woes. - - This amendment has been fathered throughout by publishers, - associations, and rings. They have exploited the composers' - interests when they do not represent them, but, instead, their own - selfish interests, which have been safeguarded in advance by - contract. - - Any legislation in favor of the oppressed composer should be so - worded and framed as to not place him any further under the power - of these combinations. - - I shall be pleased, at any time, to prove to your honorable - committee any statements made in this brief. - - F. W. HEDGELAND, - - _Representing Inventors, Manufacturers, Composers, and the Public, - 1535 West Monroe street, Chicago, Ill._ - - -STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL. - -The CHAIRMAN. Whom do you represent? - -Mr. BURTON. I speak for the manufacturers of the perforated rolls and -automatic instruments. - -The CHAIRMAN. How much time do you wish? - -Mr. BURTON. I do not know how much time the committee has at its -disposal nor what has transpired. It may appear that some of the -points on which I wish to speak have already been handled, and if I am -informed of that as I touch them I will not take up further time with -them. As I say, I speak for the manufacturers of perforated rolls and -automatic instruments. - -The CHAIRMAN. We have had several speakers on that subject. - -Mr. BURTON. I understand that some points have been presented. - -The CHAIRMAN. Perhaps it would answer your purpose to be permitted to -see what they have said and supply in writing any additions you may -desire to make. - -Mr. BURTON. I should be very glad to do so. I have been obliged to -come here on the shortest possible notice. I left my desk with my mail -half opened and jumped for a train upon a telegraphic request to be -here, and have only had that much time to determine just the form in -which I would like to present what I have to say. But I could give you -in ten minutes, probably, the results which, it seems to me, the bill -should accomplish, and if I touch on points that have already been -discussed it will not be necessary to speak further on them. - -The CHAIRMAN. You may have ten minutes. - -Mr. BURTON. But I would like to take advantage of the permission to -file a full brief, giving my suggestions in detail as to the changes -which, it seems to me, ought to be made in the bill. - -Mr. CHANEY. Of course we want that, Mr. Burton. We think that will be -more valuable to the committee than a speech. - -Mr. BURTON. That is what I wanted to present, and if I had had time I -should have been glad to have brought it in that form here. - -I want to say first that it seems to me that while the bill follows -the previous statutes in general in respect to copyrights, in the -point I am going to speak of it ought to be amended. The practice in -respect of patents is that the inventor shall verify his inventorship; -he shall make oath that he believes himself to be the inventor, and -any rights that pass to an assignee of the inventor must pass by an -instrument which can be placed of record, signed by the inventor. But -on the contrary, in the case of copyrights, in order to obtain a -copyright the person claiming as the proprietor has merely to come in -and make the claim as proprietor. He does not even have to verify -that; and thereupon this bill expressly provides that he has a prima -facie title to the copyright thus obtained. - -It seems to me that that opens the door, as it always has--there is -nothing new in this bill in that respect--to a large amount of fraud -upon the author or whoever is the one in whom the right originates. I -think, therefore, that when the bill is made up it should require the -author to verify his authorship. The bill should provide that the -application for registration should be accompanied by an affidavit of -authorship, and if application is made on behalf of an assignee as -proprietor there should be an instrument conveying the right from the -person who originates it, namely, the author, accompanying the -petition. It seems to me that no hardship can arise from requiring -this of an author and the assignee of an author, as it is required of -an inventor and the assignee of an inventor. - -The bill provides that there shall be a very careful prima facie case -made by affidavit as to the printing and preparation of the mechanical -material for publication in order to come within the statute. All that -must be verified, but the fundamental authorship requisite goes upon a -mere assertion, without even the verification of an oath of the party -claiming. A change should be made in that respect. - -Then, furthermore, with regard to the right respecting perforated -rolls, in respect of which I am speaking particularly, I think the -right should be entirely distinct and separate from the fundamental -copyright, the copyright of the "work," using the term that has been -used; that the right to the perforated roll or whatever other form of -mechanical reproduction is claimed should be based upon the filing of -a copy of that perforated roll; that the filing of the copy of the -original work should carry the copyright in the common sense of the -word, but if the author desires to claim copyright in a perforated -roll on his work, for that purpose, if you please to put it so, he -should take it for that purpose, and make his claim of copyright upon -that roll. If he wishes it in any other form of reproduction, such as -the disk of the talking machine, he should file that; and I think that -right should be entirely separate from the right which might pass by -an assignment of the copyright. The publisher who may acquire the -copyright on the work from the author should not, without express -conveyance (although the same person might acquire both) acquire the -right to control the perforated roll or the phonograph record or the -talking-machine disk; they should be entirely separate. - -The bill does provide that these shall be regarded as separate -estates; but in view of the decisions in which a similar phrase is -used, it is clear to me that that means that when the copyright has -been obtained by the one proceeding provided for here, all these -elements of it are separate estates which might be passed by separate -assignments, but they would all be contained in the one copyright. I -think that is wrong. I think that the right for the perforated roll -should be acquired by filing a copy of that roll, in order that the -public may know just exactly what is claimed, and whether it is -claimed or not, and whether it is to be utilized. - -Furthermore, I think that is a right that is naturally distinct from -the other. It is a right that goes into manufacture instead of into -publication. It is not to be done by the same people, naturally. The -manufacturer, having a factory, makes the perforated roll. The -publisher makes the books in an entirely different way. The two things -are like different lines of trade. They are not naturally blended, -either in use or sale. And therefore the composer or author, whichever -it be, a work of words or of music, should be entitled to handle it -entirely himself, apart from any right that he may have passed to the -publisher by the transfer of his copyright. - -I think I overheard as I came in a remark indicating that the next -point I desire to press has already been suggested. In section 3 of -the bill as I read it, as it stands now, there is a provision which -would make it possible (and the committee will interrupt me if it has -already been discussed, for in that event I should not wish to spend -any time upon it) for the owners of copyrights of existing music to -simply refile that music for copyright under this statute, and publish -it with the mark that is required by this bill, and thereupon all that -was contained in the previous copyright that is contained in that -refiled and recopyrighted matter would come under this act, with all -the privileges that this act gives over former copyright acts. - -For example, this very matter of the right to mechanically reproduce -would attach to a piece of music which had been previously copyrighted -and of which a copy is now filed under this statute, and all the -privileges of the bill except the longer term would attach to old -copyrighted music which is simply refiled. So it would be possible to -make the provisions of this act retroactive, so that the publishers, -upon taking this proceeding, for 50 cents, with all their copyrighted -music, would immediately cause the loss of the millions of dollars -that have been invested in those rolls. - -Mr. CURRIER. That has been discussed by several gentlemen, and -objection taken to it--the same objection you are discussing now. - -Mr. BURTON. Very well; I will not talk of that. - -Mr. CHANEY. His point is that he would let the copyright go to each -one of these interests, as I understand it. - -Mr. CURRIER. That is on another point, however. He is speaking about -section 3 now, in reference to subsisting copyrights. - -Mr. BURTON. In section 3 there is a provision which ought to be -changed to prevent the subsisting copyright from carrying over these -provisions into the new---- - -Mr. CURRIER. That has been discussed by several gentlemen. - -Mr. BURTON. Then if you are not going to make it retroactive--I judge -the committee is clear upon that point--so as to bring under a -copyright and make infringements all these outstanding millions of -rolls, the question next should be, Should it be possible for the -composer, by copyrighting now his perforated roll or taking any steps -under this statute, to have the right from this time on to control the -cutting of music which has heretofore been cut? - -That strikes one at once with a little semblance of justice; but the -injustice of that proposition consists in this: That for every piece -of music which has been cut by a manufacturer, that has been lawfully -cut under the present decisions, where he has a perfect right to do -it, he has been obliged to expend from $10 to $25. He has that much -investment lying under this music that is out in the market. Now, if -it is not reasonable that all this outstanding music, lawfully made -and lawfully sold, should become outlawed by a new act, is it -reasonable that all this provision for making that investment, which -amounts to millions of dollars, in the preparation for cutting this -music, should become outlawed immediately, so that no more -compensation can come to this manufacturer who has this $25 or this -$10 invested in each piece, and say to him: "You can not use that -music; you can not cut any more of that music?" Is it reasonable that -that investment should be killed--that that investment, lawfully made, -in a lawful product, should become immediately unlawful and waste -paper? - -Mr. WEBB. What section has that effect? - -Mr. BURTON. I do not say the bill would certainly have that effect. It -is entirely uncertain, but it seems to me the bill would have the -effect, as I read it, of permitting the composer to claim the rights -except as to outstanding music--that is, the right from this time on -to cut it. The bill should be clear. I have had only a very short time -to examine it, and a provision may possibly lurk somewhere under which -the continued production of perforated rolls now being produced would -be permitted, but I think not. I think it is possible, or might be -held possible, under the bill for the composer to claim the rights -from this time on to cut the music. - -Mr. CURRIER. Oh, very clearly so; he can sell that right. - -Mr. BURTON. If that is the case, it seems to me unjust. - -Mr. CAMPBELL. Where the copyright has run out? - -Mr. CURRIER. No; for copyrights taken out after the passage of this -bill. - -Mr. BURTON. I am talking about the music that is now on the market, -not the rolls, but the means of cutting them--whether the composer -can, under this bill, acquire the right to stop the cutting from now -on of that music. - -Mr. CURRIER. I do not think you need to take any time with that -proposition. - -Mr. BURTON. If that is clear, I will pass it. It seems to me the bill -gives it; but if you make it entirely clear that it does not---- - -Mr. CURRIER. It is not the purpose of the committee, I judge, to allow -that. Your time has expired. - -Mr. BURTON. Then I will ask leave to file a complete brief suggesting -changes. - -Mr. CURRIER. And I might say to you what has been said to others -here--that neither the Senate nor the House committee will take any -action on this bill at this session. It will go over until next -winter, and at any time before action is taken you can file any -further brief or any further suggestions with the committee. - -Mr. BURTON. I thank the committee on behalf of the interests I -represent. - - _To the Senate and House Committees on Patents_: - - Pursuant to the permission granted me at the conclusion of the few - minutes' oral hearing with which I was favored before the joint - meeting of your committees, I beg to submit herewith a brief and - suggestions with respect to the amendments to Senate bill 6330 and - House bill 19853, deemed proper and necessary in order to make the - act contained in said bills properly protective of the rights and - conservative of the interests arising out of and connected with the - industries of automatic musical instruments and controlling - devices--perforated rolls, talking-machine disks, and phonograph - cylinders--for the same. - - All of which is respectfully submitted. - - The following facts should be taken into consideration in making - any amendment to the copyright law affecting automatic reproducing - devices as well as perforated rolls for reproducing music, - talking-machine disks, and phonograph cylinders for their - respective purposes. - - 1. To the modern arts relating to automatic music-playing devices - and automatic means for reproducing sound, such as talking machines - and graphophones, authors and music composers have contributed not - a single iota. - - These arts have been the result of the combined efforts of - thousands of scientific, industrious, and artistic inventors. These - inventors and the manufacturers cooperating with them by their - capital and business skill and enterprise have created these entire - arts and to them is due the entire benefit which the public has - derived and is deriving from these arts. - - 2. Musical composers and song writers, notwithstanding their entire - lack of participation in the creation and development of these - arts, have derived already and are still deriving large pecuniary - benefit from them. - - This is most clearly provable in respect to musical compositions. - For any musical composition which has been largely reproduced by - automatic players employing perforated roll controllers a largely - increased demand immediately arises. The sale of the ordinary staff - notation of any such composition experiences a notable stimulus - immediately upon the production and sale of the perforated rolls - for producing the composition automatically upon musical - instruments. - - This fact is conclusively established by the record in the suit - of Apollo _v._ White-Smith Music Publishing Company, lately - determined in the United States circuit court of appeals in the - eastern division of the southern district of New York. We are - filing herewith a copy of the printed record of the defendant in - that suit, having marked the pages[1] containing the testimony - upon this point, and also a copy of the brief on behalf of the - defendant citing[2] the facts as established by the record upon - both sides to the effect that in the face of the testimony by - wholesale and retail dealers in sheet music, that the sale of - perforated rolls for such music largely and promptly increased - the demand for the sheet music, there was offered not one word - of testimony to the contrary, although in the control of the - complainants and available as witnesses in their behalf--practically - as cocomplainants or cobeneficiaries with them in the suit--were - included nearly all the large publishers of and dealers in sheet - music, whose records of sales would have established the facts one - way or the other overwhelmingly, so that the absence of testimony - from these sources must be taken as an admission of the fact as - testified to by the few publishers who were accessible to the - defendants. - - [1] Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp. - 100-101; Jansen, pp. 131-133. - - [2] Pp. 29-34. - - We assert, and challenge contradiction, that the experience and - observation of the music trade during the past ten years, during - which this art has grown from infancy to its present proportions, - establishes the proposition, viz, that the sale of perforated rolls - and other means for automatically reproducing musical compositions - to the ear tends largely to increase the demand for the ordinary - staff notation or other published form of the particular - compositions which are thus reproduced. - - 3. The making of a perforated roll or equivalent device or - appliance for reproducing to the ear a musical composition is not a - mere mechanical process nor one involving mere mechanical skill. It - is, on the contrary, an artistic process requiring musical taste - and ability and affording opportunity for the exercise of the very - highest musical taste and ability, conjoined with the most exact - and delicate understanding of the mechanical principles and - features of the mechanism with which the controller device--perforated - roll or the like--is designed to cooperate for reproducing the - music to the ear. The art of the "arranger," as he is termed, of a - perforated roll brings into exercise an artistic sense and skill - of as high a rank as that of the musical composer and requires, in - addition thereto, an ability to understand accurately and minutely - the intricate mechanism to which the device produced must - correspond and with which it must cooperate. - - In the case of the talking-machine disk and phonograph cylinder, - the contribution of the singer and player is even more obvious, as - the essential and controlling element in the value of the devices - which result and which are the distinct product of the art of the - singer and player is a thing apart from the art of the composer. - - The producer of a perforated roll or of a talking machine disk or - phonograph cylinder, therefore, is as much entitled to be - considered an "author" in virtue of the production of such roll, - disk, or cylinder, entirely apart from and subsequent to the - composition of the music as is the painter by virtue of his - sensitive appreciation of beauties of form and color in nature and - his skill in reproducing them upon the canvas. The landscape - painter does not create the nature scene, but he is not the less - an artist because he depicts it only, instead of creating it from - his imagination. Nor is he less entitled to a copyright upon his - painting, because it is a more or less perfect reproduction to the - eye of that which existed for the eye before he reproduced it, - than if he had evolved the scene from his imagination and then - depicted it to the eye by the same skill. - - The photographer who merely posed his subject is entitled to a - copyright upon his photograph. He did not cast the features, nor - shape the form, nor arrange the hair, nor devise the costume. He - merely posed them all, and chose the position with respect to - light and shadow, and adjusted the contrivances for affecting - both. This was his art, and the photograph is the result; and it - is his photograph for purposes of copyright. - - The "arranger" of the perforated roll is an artist of as high - merit as the photographer, and in some respects of as high merit - as the landscape painter. - - If there is to be secured or conferred upon anyone an exclusive - right to the perforated roll, or to the talking-machine disk, or - to the phonograph cylinder, for producing to the ear a particular - composition, that right, in virtue of authorship, belongs to the - arranger of the perforated roll and to the singer or player who - produces the talking-machine disk or the phonograph cylinder. - - That copyright may reasonably be granted to the producers of these - devices for the devices themselves seems too obvious for argument, - and that it should not be in the power of any composer whose - composition is published and on the market to discriminate between - different arrangers of perforated rolls or different singers or - players, in respect to the right of making such records, - respectively, and of selling or renting the same, seems also - obvious justice. - - It would be no injustice, in view of the observed facts above - stated--that the composer derives benefit only and never injury - from the sale of these automatic devices--that he should have no - rights in respect to them, except to be credited with the - compositions by having them marked with the title which he has - given them for market and with his name as composer. But in view - of the possibility that there may be reciprocal advantage--that - the name and repute of the music and of its author may contribute - to the sale of the reproducing devices--a royalty for the use of - the title and name may reasonably be allowed to the composer. - - But the composer should not be recognized as having any right - entitling him to prohibit anyone who desires to do so from making - such automatic reproducing devices by employing either the art of - the arranger of the perforated roll, or the voice of the singer, - or the skill of the player on musical instruments. - - And the royalty should be uniform for all makers of each sort of - device; that is, all makers of perforated rolls for a given - composition should pay the same royalty to the composer for the - use of his name and the title of his music, and all makers of - vocalizing disks or cylinders should likewise pay the same royalty - for a given composition. - - This right to royalty should be allowed, not in virtue of any - domination or supposed domination of the original copyright over - the act of reproduction, but solely in virtue of the natural right - of the composer to have his name and the title which he has given - to his music associated therewith, howsoever it is produced, and - of the fact that presumably a commercial value attaches to such - name and title, which will benefit the seller of the automatic - reproducing device. - - This right of royalty should therefore not run to the proprietor - of the original copyright as such, but to the composer as such. If - the composer has sold his copyright the purchaser should not, by - virtue of that purchase, acquire any interest in the royalty of - the composer for the use of his name and the title of his music. - Of course the composer could sell this royalty right, and if he - chose to sell it with the copyright and to the same person he - could do so, but it should not pass without express mention. It - should not pass as incident or appertaining to the copyright. - - Such a provision would be precisely like the provision in the - present statute with respect to translations. In the statute it is - now provided, not that the copyright includes the right of - translation, but that the author whose work has been copyrighted - has the exclusive right of translation. He may sell his copyright, - but such sale does not divest him of the monopoly of the - translation nor vest such monopoly of translation in the assignee - of his copyright. - - NOTE.--This point is somewhat fully developed in brief of the - defendants in White-Smith Music Publishing Company _v._ Apollo, - copy of which brief is herewith furnished. (See p. 46 to 50, - inclusive.) The position above stated and presented in brief, as - above noted, was not controverted and was apparently fully - conceded as a legal proposition, by counsel for the complainants - in that suit. The ultimate propositions supported by the above - contention in that suit were contested upon other grounds. Copy of - complainants' brief upon this point will be furnished the - committee later, with citation to the particular paragraphs - sustaining the above statement. - - Outside of and as an exception to the general class of musical - compositions to which the foregoing considerations are pertinent, - there is a class more closely related to automatic reproducing - devices and in respect to which the composer has a more vital - interest, viz: - - Musical compositions not reproducible to the ear by a single human - performer upon any instrument, but which can be produced by means - of perforated rolls on an automatic instrument. - - The staff notations of such compositions have practically no - market value, except in case they are arranged in the forms of - orchestral scores, so as to be produced by a plurality of - instruments simultaneously played by different performers. The - number of copies of such orchestral scores which will be required - is necessarily very limited, and the sale of such staff notations - offers a very limited field from which the composer may derive a - just compensation for his work. The only source of revenue to the - composer of such works is in the sale of the only means of playing - these, viz, the perforated rolls. - - It may be deemed proper and it will not be denied that it would be - just that a composer of a musical composition of this class who - causes it to be embodied in the form of perforated roll, and who - can derive a revenue from it practically only in this form, should - be considered in the light of both composer and arranger, and as - entitled to obtain original and independent copyright of the - perforated roll, so as to control the composition absolutely in - this form. - - It is believed that it will not be difficult to frame a provision - of the statute to do justice to this class of composition, and - which shall not trench upon the natural equity of the perforated - roll arranger for other musical compositions, or upon the natural - right of the public to derive the use of the automatic reproducing - devices upon ordinary musical compositions, without requiring the - consent of or paying tribute to the composer. - - _4. As to duration of copyright._--The bill before your committees - proposes a remarkable extension of the period of copyright beyond - anything heretofore granted. This is believed to be contrary to - sound public policy and of doubtful constitutionality. - - The Constitution expressly limits the power of Congress in respect - to their copyright protection to granting such protection "for - limited periods." The term "limited" can have only a relative - meaning, and the obvious meaning is limited with respect to or in - comparison with the period during which the public will have - desire or use for the copyrighted work. It is contemplated, - evidently, that in compensation for the protection which the - statute gives the composer for a limited period the public shall - derive the unqualified use and benefit of the work for a remaining - period. If there is no remaining period, the consideration for the - protection has failed. - - It needs no statistics to establish to the common knowledge of the - committee that not one book in ten thousand has any commercial - value fifty years after its publication. It will probably be safer - to say that not one published work in a hundred thousand has any - life after fifty years. If, therefore, the author is given the - monopoly for fifty years, the public has nothing left to - compensate it for that monopoly and protection. - - Not one work in a million endures so as to have any value after - one hundred years. - - But the bill proposes, as to the great bulk of copyrightable - matter, that the period of copyright shall be substantially one - hundred years--fifty years after the death of the author. - - It is respectfully submitted that this transcends the intention of - the constitutional limitation, and that the public would, by such - an enactment, be deprived of substantially all the compensation - which the Constitution intended should be reserved to it in return - for the copyright protection granted the author. - - Whether the constitutional limitation should or should not be so - strictly applied, it seems beyond doubt that sound public policy - forbids thus bartering away all the public benefit arising from - the free right of publication after the expiration of copyright. - - There is a second objection to the particular form in which the - bill gives this extended copyright term. There does not appear to - be any logical relation between the copyright protection and the - duration of the life of the author. The privilege or protection - granted is in no respect personal, except as to the revenue which - may be derived. - - There does not appear any reason why the work of a mature writer - of 60, presumably capable of giving to the public compositions of - peculiar value, especially if they relate to scientific or - philosophical subjects, should receive less protection from his - copyright than would be granted to a youth of 20, whose immature - productions would obtain the protection of a presumably long life - before him (during which he would often regret his immature - publication). - - Furthermore, the particular form or provision of the bill with - respect to joint authors (line 24, p. 14; line 26, p. 15), when - corrected to cure the obvious error in the phraseology and express - the doubtless intended meaning, opens the way most obviously for - practical fraud upon the public. An aged author, by associating - with himself in a nominal yet unimpeachably colorable way a - youthful assistant, and obtaining copyright in their names as - joint authors, will secure protection for his work concurrent with - the life of the junior and fifty years thereafter, instead of - concurrently with his own nearly ended life and subsequent fifty - years. - - It is obvious that joint authorship will become exceedingly - popular if this paragraph of the bill is retained; and by the - expedient of triple or quadruple authorship the chances of a long - period will be greatly increased. - - NOTE.--The very obvious error above indicated--line 24, page 14, - line 2, page 15--has probably received the attention of the - committee. The sentence supplying the connection from the - commencement of section 18 now reads: "That the copyright secured - by this act shall endure * * * in the case of joint authors, - during their joint lives and for fifty years after the death of - the last survivor of them." The gap which is left between the - dates of death of the first and last dying of the joint authors is - uncovered by the copyright under this form of statement. That is, - the copyright would lapse upon the death of the first dying--the - end of their joint lives--and revive at the death of the last - survivor. The correction is obvious. Make the sentence read: "In - the case of joint authors, until the death of the last survivor of - them and for fifty years thereafter." - - It is believed that the present term of copyright should not be - disturbed unless to shorten it. Twenty-eight years, with a - possible extension of fourteen, exceeds the actual life of a great - majority of copyrighted publications and leaves the public nothing - for its concession of temporary monopoly to the inventor; but it - is, perhaps, a fair average, and at least it has caused no serious - complaint upon either hand. - - An exception should, however, be made in respect to any protection - which may be given to anyone, whether composer or arranger, with - respect to the automatic reproducing devices--such as perforated - rolls--associated so closely, as these devices necessarily are, - with manufacture as distinguished from publications and with - inventions as distinguished from literary or artistic works. The - duration of the patents, whose owners must pay tribute to the - holders of any form of copyright upon the perforated rolls, are - granted only seventeen years' monopoly in which to derive all - compensation for their inventions. - - The copyright protection, if any, granted in any form upon - perforated rolls should not exceed the term of patents--seventeen - years. - - _5. Verification of authorship and ownership should be - required._--All our copyright laws hitherto have been - unaccountably lax in respect to the requirements for making prima - facie title to copyright by virtue of authorship or - proprietorship. It has only been necessary, and the present bill - only makes it necessary, that the applicant for registration under - the copyright statute should state, without verification of any - sort, that he claims as the author or proprietor, as the case may - be. So singularly loose is the requirement that the applicant is - not even required to declare that he is the author or proprietor, - but only to state that he claims as author. - - How easily a fraudulently disposed claimant will satisfy his - conscience in stating that he claims as the author, when he might - hesitate to declare that he is, in fact, the author; and how much - more easily one who conceives that he has a shadow of right to - ownership will make the like statement that he claims as the - proprietor when he would hesitate to declare that in fact he is - the proprietor, is obvious without comment. - - But it is certainly obvious that so vast and important a right as - that conferred by the copyright statute should not be vested and - given prima facie validity in anyone who has merely the effrontery - to declare even that he is the owner or that he is the proprietor. - - Why should less be required of the claimant to copyright than is - required of the claimant to patent right? - - The applicant for patent must make oath that he believes himself - to be the first and original inventor, and his oath must also - declare affirmatively the existence of all of the other conditions - precedent to his right to obtain a patent. Why should not the - author claiming copyright be subject to a similar requirement? - - The assignee of an inventor desiring a patent to issue to himself - must file in the Patent Office an instrument in writing, signed by - the inventor, conveying to the assignee the whole or such portion - of the interest as it is desired to have appear in the name of the - assignee upon the issue of the patent, and must in addition - expressly request that the patent so issue to the assignee. Why - should less proof be required of one claiming copyright as - proprietor? - - It seems that no argument is necessary to enforce these - suggestions. Under the present law and under the proposed bill any - publisher obtaining possession of an author's manuscript under any - color of right not involving him in larceny by reason of the - possession may proceed to put the work in print and make - application for copyright, not even averring that he is the - proprietor, but stating that he claims as proprietor. The - copyright certificate will issue, and his title to the copyright - will be prima facie established by the proceedings which he takes - pursuant to the statute and the action of the copyright office - therein; and the author, who may be ignorant of the proceedings, - who may have only entered upon negotiations with the publisher - without any intention of accepting the offers which may have been - made, finds himself in the position of being obliged to contest a - prima facie right on the part of the publisher to the copyright in - his work, with the alternative that if the publisher's title is - not conceded to be good the author's right is lost by publication. - - How many authors have succumbed to the embarrassment of just this - situation, deliberately created by greedy publishers, will never - be known, but it is time that the statute which offers such - inducement to greedy human nature to perpetrate frauds of this - character should be remedied, and that the prima facie right - acquired under copyright statutes should have behind it at least - the support of the oath as to authorship and of an instrument of - assignment by the author to the party claiming as proprietor. - - _6. Penal provisions._--It is respectfully submitted that the - penal provisions of this statute are grossly disproportionate to - the offenses or injuries to which they are directed, and obviously - provocative of blackmail and coercion, and in some instances - clearly unconstitutional and unenforceable. No attempt will be - made here to discuss all of these provisions, but attention will - be directed only to those which bear upon the particular matter on - behalf of which this presentation is made, namely, automatic - reproducing devices; and without discussion it is suggested as too - obvious for argument that a penalty of $10 for each and every - infringing copy of a perforated roll found in the possession of - the alleged infringer, his agents or employees, is grossly - excessive, in view of the selling price of such rolls, which - seldom exceeds $3, and probably averages not far from $1. - - Severe penalties are only proper where the offense complained of - can not be committed by accident or inadvertence, and where there - can be no possible mistake as to a given act constituting the - offense. In any case in which there might be room for difference - of opinion, or where the offense might be committed unwittingly, - such penalties are grossly improper. - - But when the situation is such that the party entitled to complain - or who might allege injury by reason of the alleged offense is to - be the beneficiary of the penalty, and especially, as in the - present bill, is to absorb the entire penalty, it is obviously - contrary to reason and good morals to make the penalty materially - exceed the damage, because there is thereby created a motive on - the part of the person alleging injury to promote and encourage - surreptitiously the alleged offense until it has grown to large - proportions, so that he may thereby reap a greater benefit from - the trespass than he could possibly have reaped otherwise from the - property trespassed upon. - - In the case of the perforated rolls, all these objections to - severe penalties are found concurrent, for-- - - (_a_) There will easily arise wide and honest difference of - opinion as to whether two given perforated rolls are - infringements, one of the other, and even whether a given - perforated roll is an infringement of a particular musical - composition (if the bill should be retained in such form as to - make the original copyright apply to perforated rolls). It is well - known that controversies are constantly arising upon the question - of infringement as between two staff notations, the second author - often claiming and frequently establishing, contrary to the belief - of the first, that his composition was an independent one, both - having derived their theme from sources in the public domain. - - A perforated roll presenting a composition only so similar to a - public and copyrighted composition as to raise a question of - infringement if it were a staff notation, instead of a perforated - roll, will raise the same question as a perforated roll. The - copyright owner will reap an advantage, it may be, of 10 per cent, - upon the selling price of the sheet music, let us say 15 to 25 - cents for every copy sold. He will reap a profit of $10 as a - minimum upon every copy which he can find in the possession of the - alleged infringer, his agents, or employees. Is there any doubt - which remedy he will elect? Is there any doubt that he will await - his opportunity for finding a large stock in the hands of the - alleged infringer? Is there any doubt that a statute so framed - would offer almost irresistible inducement to blackmail, which - might be perpetrated under such circumstances? - - The extravagant injustice of the provisions for impounding the - "goods alleged to infringe" upon the commencement of a suit and - for delivering up for destruction all copies, as well as all - plates, molds, matrices, and other means for making infringing - copies, have been well discussed by Mr. Walker. It is not deemed - conceivable that your committee will seriously entertain such - obviously oppressive legislation. On what possible pretense of - equity or justice may a complainant, who thinks that his copyright - has been infringed, upon that mere allegation lock up his - competitor's stock of goods, while he on his part monopolizes the - market during the pendency of a long litigation to determine the - justice of that which may have been only a colorable charge at the - start? - - One's sense of justice is startled into horror at the suggestion - of subsection d, on page 18 of the bill, that "all plates, molds, - matrices, and other means for making infringing copies shall be - delivered up for destruction," even if it is understood that this - is to be done only at the conclusion of a suit. Whoever drafted - this provision was either malicious or ignorant. (This statement - is made with careful deliberation and we wish to repeat it: He was - either malicious or ignorant.) Mr. Walker's presentation must make - this clear. I make the same for my own client, which has an - equipment involving an investment of many thousand dollars for - producing perforated rolls, every element of which would enter - into the production of each single roll, and all of which would be - subject to destruction under the language quoted. Under this - provision of the bill a single accidental, inadvertent - infringement will subject that entire plant to destruction, though - the copyright owner may not be damaged 50 cents. - - Could anything be easier than for a malicious manufacturer to ruin - his competitor by entrapping him into the manufacture of a single - infringing roll and then bringing suit under this section and - destroying his establishment? - - Your committee will not doubt that the writer of this section was - ignorant of this possibility, if it acquits him of being malicious - in the drafting of this provision. - - _7. Section 4966--Public performance._--Your committees have not - failed to notice the single provision of section 64 of the bill - which, "providing that all acts and parts of acts inconsistent - with are hereby repealed," makes exception of section 4966, and in - respect to that section provides that its provisions "are hereby - confirmed and continued in force, anything contrary in this act - notwithstanding." - - The framers of this bill were more anxious than for anything else - that the monopoly of public performance given by section 4966 - should in no respect be weakened, and although they have embodied - in this bill provisions in terms more stringent than those of that - section, fearing that these more stringent provisions might not be - constitutional, or that by some slip they might be found to leave - a loophole, they reversed the ordinary procedure, and, instead of - making the bill as a new act, repealing all inconsistent acts, - they make the section of the former act nullify the bill as to all - inconsistent features. - - It will occur to the committee that this is an unscientific mode - of proceeding, and that the bill, when enacted into law, should be - clear and consistent within itself, and not subject to - nullification by its own terms in any respect. - - But it is believed that section 4966 of the present statute has - been tacitly treated as meaning something which the legislature in - enacting it never intended, and that the provisions in the present - bill, developing into express terms that which has been tacitly - treated as involved in the terms of said section of the present - law, crystalizes into dangerous permanency a defect which would - have been eliminated from the present statute whenever the United - States courts had occasion to review it. - - Protection for public performance is justifiable only in respect - to compositions which by their nature yield no considerable - revenue to the author by the sale of copies or otherwise than by - public performance. Dramatic compositions clearly fall within this - class. A dramatic composition is written primarily to be performed - and only incidentally to be read. Some dramatic compositions may - have such literary character that they would be bought to be read - and so little dramatic quality that they will not be largely - performed; but the dramatic composition whose value is in - performance and not in reading gets little protection from the - copyright statute without special provision giving monopoly of - public performance. A hundred copies will supply all the actors - who need it; no one else wants it; but a million people will be - glad to see it performed and will pay high prices for their seats. - The dramatic writer must get his revenue from the million--not - from the hundred--or he will fail of adequate compensation. - - Recognizing this situation, Congress, in 1870, enacted the - following provision: - - "SEC. 4966. Any person publicly performing or representing any - dramatic composition for which copyright has been obtained, - without the consent of the proprietor or his heirs or assigns, - shall be liable," etc. - - In 1897 the section was amended by inserting the provisions now - contained in section 4966, making it include musical compositions, - the words "or musical" being inserted after the word "dramatic" in - the second line of above. - - There can be no reasonable doubt that the intention of the - amendment of this section, by making it refer also to musical - compositions, was to include musical-dramatic with other simple - dramatic compositions; that is, to make the scope of the - protection take in all compositions whose value rested in dramatic - performance as distinguished from mere vocalization. - - The word "perform" in the section clearly points to this - significance and intention. - - It is not believable that Congress intended to provide by this - amendment that every member of a religious congregation joining - publicly in the singing of a copyrighted tune should be liable to - the penalties prescribed by this section; nor even that every - member of a church choir, having purchased the copies of the - copyrighted anthem, sold only for such purpose and useful only for - such use, should be subject to these penalties, if the publisher - omitted to grant expressly the permission to sing with the sale of - a printed copy. - - But no other interpretation can possibly be derived from the - present section unless the word "perform" is taken as applying to - dramatic performance and as not including mere vocalization in - public. - - The present bill is intended to leave no doubt upon this point, - and in that respect it is contrary to public policy, sound sense, - and every consideration of justice. - - The holder of a musical copyright should not be vested, by virtue - of that copyright, with the right to sell his music, which is made - to be sung, and prohibit its singing; to sell his music, which is - made to be played, and prohibit its playing. Still more obnoxious - to justice is it that one who has been openly sold a copy of a - piece of music, and who has done with it that which constitutes - the only motive for buying it, namely, has sung it, or played it, - or procured some one else to sing it for his entertainment, - should, if he chances to do that in public, be penalized and put - in the position of one who has committed a misdemeanor or - transgressed another's rights. Reason and sense revolt at such a - statute or such an interpretation of a statute; and musical - composers demanding such rights place themselves in contempt of - civilized society. - - Section 4966 should be amended by making clear that it relates - only to dramatic performance, while it includes such performance - of compositions which are musical as well as dramatic. And all - provisions of the present bill exceeding such protection should be - limited. - - _8. As to right of translation._--The present bill makes a radical - departure from the present statute in respect to the right of - translation of a copyrighted work into other languages. Under the - present statute, as above noted and presented in the brief cited, - the right of translation inheres in the author as author, - conditioned only upon copyright having been obtained of his - original work, but not conditioned upon that copyright remaining - in him. His assignment of the original copyright does not carry to - the purchaser, or divest from the author, the right of - translation. The translation, when made by the author, is his own - product. He may copyright it or not as he pleases; but the owner - of the original copyright has no right in the translation unless - expressly conveyed to him (which may be done, of course, by - express mention in the conveyance of the original copyright, or by - the transference of the manuscript of the original work before - copyright, putting the purchaser in the position fully of the - author as to all the rights arising out of authorship). - - The present bill, however, makes the right of translation not - merely one which is conditioned upon the existence of copyright of - the original work, but an essential and integral part of that - copyright, so that it will pass with the assignment of the - copyright without special mention, and the proprietor of the - copyright, and not the author, would thereafter have the right of - translation. The author could not translate his own work without - infringing the copyright which he had sold to the proprietor. Any - translation, however maladroit or misleading, which the copyright - owner--publisher--might approve would pass under the author's name - as his work into the foreign language, and he would have no voice - to protest against the libel, no power to remedy the injury by - putting out a correct translation. - - It can not be doubted that such considerations as these governed - in the enactment of the present statute in such form that the - right of translation inheres in the author and does not pass - without his express act, though the original copyright may have - been assigned. It is obvious that the author ought to have a right - in respect to translation which will not require express - reservation in order to remain his own when he sells his - copyright. It will be apparent that negotiations between an author - and publisher for the sale of his copyright will commonly proceed - in general terms, referring to the copyright by that term, and - that the author will commonly be considering only what may be - termed the original copyright in such negotiations, and that he - will in some instances convey the copyright with no thought of the - appurtenant rights involved in it, and will wake up only too late - to find that he has no control over translation, if the term - "copyright" carries the whole right, including that of - translation, as the present bill provides. - - The statute is right as it stands and the bill should be amended - to conform to the present statute in this respect. - - I have drafted amendments to the various sections and paragraphs - of the bill such as are necessary, in my judgment, to make it - conform with the requirements of equity to the different interests - affected, and with sound public policy, in the various respects - above pointed out and discussed, and would submit them herewith, - but find that they are so numerous and require insertions and - emendations at so many points in the bill that I believe the - purposes of the committee will be much better served by the - submission a little later of a full draft of a bill embodying the - various changes which I would suggest, so that the matter may be - considered in a form consistent throughout instead of in the - piecemeal form which would result from the many amendments which - would be required to put the present bill in desirable form. - - Such completely framed bill I promise to submit to the committee - at an early day and in ample time for full consideration upon the - reassembling of the committee in the fall. - - Thanking the committee for the opportunity which has been afforded - me for presenting my views in the interest of my client, I am, - - Respectfully, - - CHAS. S. BURTON, - _Representing Melville Clark Piano Company_. - - -STATEMENT OF NATHAN BURKAN, ESQ., OF NEW YORK CITY. - -Mr. BURKAN. Gentlemen, there has been a great deal said here about -this "monopoly," this great "music trust," that intends to---- - -Mr. CHANEY. You are a publisher, are you? - -Mr. BURKAN. I represent the Music Publishers' Association. This -combination between the Music Publishers' Association and the Æolian -Company, the purpose of which is to destroy the independent -manufacturers of perforated rolls, cylinders, and disks adapted to -reproduce musical sounds. - -I think we should at this time refer to the history of this alleged -contract between Æolian Company and some of the publishers. A number -of years ago an action was brought in the circuit court of -Massachusetts to restrain the manufacture and sale of perforated rolls -on the ground that such perforated rolls infringed the complainant's -copyright on his musical composition. The case was argued before Judge -Colt, and he decided that a perforated roll was not a copy of a sheet -of music, and therefore not an infringement of the copyright. (Kennedy -_v._ McTammany, 33 Fed. Rep., 584.) A number of years thereafter -another action was begun in the District of Columbia, the case of -Stern _v._ Rosey, to restrain the manufacture of cylinders and disks -adapted to reproduce musical sounds--applying particularly to talking -machines. That court decided against the publisher. Thereafter these -companies grew up, one after another, and manufactured rolls, disks, -and cylinders, and appropriated for use upon these devices the -property of the composer, for which he did not receive a dollar. - -The Æolian Company, the pioneer in this line of industry, became a -very large concern, investing millions of dollars in the establishment -of a plant and in the manufacture of these rolls. They knew, or were -advised by counsel, that this question, whether a perforated roll -adapted to reproduce a copyrighted musical composition was not a -"copy" of the composition within the meaning of the copyright law, was -uncertain; it had never been decided by any appellate court. And it -was very essential for the welfare of the company, and for the -protection of its interests, to ascertain whether in fact it was -infringing upon a copyright every time it made or sold a roll. - -The ACTING CHAIRMAN. Do you represent the Æolian Company? - -Mr. BURKAN. No, sir; I do not. I have no interest in the Æolian -Company. I never appeared in any action for it, am not appearing for -it now, and do not expect and will not receive or accept any -compensation for my services here. I represent the music publishers, -and I am a friend of Mr. Victor Herbert. - -I desire to reiterate that the Æolian Company was advised by able -counsel that there was some doubt about this proposition. The Æolian -Company, to protect its property, and in order to settle this question -once for all, sent its agents to several publishers who stated to -them: "Gentlemen, we have sought legal counsel--the ablest that we -could find in the city of New York--who advise us that there is grave -doubt as to whether the manufacture by us of these perforated sheets -do not infringe your copyrights, and that question ought to be -determined by the highest court or the land." - -No single publisher, gentlemen, had sufficient funds to carry on such -an expensive litigation, because these music publishers are not the -millionaires that our friends on the other side have attempted to -point out and show. Most of them are poor men. No single composer -would be able to supply the funds to carry on such a litigation. There -was a great deal involved; and when this company came and said: -"Gentlemen, we will take up this litigation; we will try to establish -your rights; but for our trouble, if we do establish your rights, if -we can get the highest court in the land to decide that the present -copyright laws are applicable to these perforated sheets, then we want -the exclusive rights to manufacture perforated rolls adapted to -reproduce your music upon specified royalties for a number of years." - -Was there anything inherently wrong in that? A number of publishers -naturally jumped at that offer. It would mean to a large publisher -thousands of dollars if the courts decided in his favor. At the time -when this offer was made, the perforated roll companies were -appropriating his copyrighted music for which he received not a single -penny. And the contract that was entered into between the Æolian -Company and some of the publishers, a copy of which was offered in -evidence here, provides that the consideration for this agreement was -this litigation. Nothing was concealed; everything in connection with -this contract was done in the open, and the consideration for the -contract is expressed in the contract as follows: - - And for and in consideration of the premises the Æolian Company - hereby covenants and agrees to pay all proper expenses of - conducting such suit for the purpose of testing the applicability - of the United States copyright laws to perforated music sheets of - kinds aforesaid, and that if the court of last resort shall in such - suit decide that the United States copyright laws are applicable to - such perforated music sheets, then and in such, case and from that - time forward the Æolian Company will keep the books of account and - pay the royalties. - -These gentlemen, the publishers who made this contract, did not have -in mind the creation of a monopoly. Each publisher, naturally, as any -other business man, wanted to get something for his property, and it -was very advantageous to the publisher to get the highest court to -decide in his favor, without paying the enormous expense of such a -litigation. Mr. Davis, the inventor of these perforated rolls, -properly said--he said it truthfully and honestly--"My invention -depends upon Mr. Sousa and Mr. Herbert and their compositions." The -music of these gentlemen is a component part of my invention. - -The ACTING CHAIRMAN. The Æolian Company, as the law stood, did not -have to pay to musical publishers a cent? - -Mr. BURKAN. Not a cent. - -The ACTING CHAIRMAN. What was their object in getting a decision of -the court which would force them to pay large sums to the musical -publishers? - -Mr. BURKAN. They are the largest manufacturers of these rolls in the -world. They have manufactured thousands and thousands of these rolls -representing the best copyrighted compositions. Suppose a large number -of publishers or a number of public-spirited men had gotten together a -fund, and suppose a case to test the applicability of the present -copyright laws to perforated rolls had been carried to the highest -court and won--then the Æolian Company would have been obliged to -account for all its profits on these perforated rolls to the -publisher, and would have been obliged to pay Mr. Herbert, Mr. Sousa, -Mr. Chadwick, Mr. Damrosch, and other composers thousands of dollars -in back royalties; whereas under this agreement the Æolian Company -protected itself, because the publisher who signed it consented to the -use of his composition for the perforated rolls, and he would have -been estopped under such agreement from suing for an accounting of -profits. - -The ACTING CHAIRMAN. Yes; but the Æolian Company originated this -litigation. - -Mr. BURKAN. Yes--very true, sir; very true. The Æolian Company (and I -do not appear in this matter as its champion at all) had spent -thousands of dollars to improve and protect its patents to these -perforated rolls. It employs the most skillful and talented arrangers -to arrange and edit these compositions embodied in the roll, so that -when you purchase an Æolian record or roll and pay your $2.50, or -whatever the price may be, you get a roll when used in connection with -the playing instrument which gives an exact reproduction of the music -as written by the composer, say, by Mr. Nevins, Mr. Chadwick, or Mr. -Foote. There were a small number of companies that also sold -perforated rolls, but instead of the rolls producing exact -reproductions of the music they gave distorted and feeble imitations -or versions of that music. They did not give to the public what the -public was bargaining for, and instead of creating a taste and demand -for this form of reproduction of music, the tendency was to destroy -the taste and lessen the demand; and the result was not only to -destroy this great industry, of which the Æolian Company was the -pioneer and in which it was vitally interested, but also to injure the -composer whose work was thus reproduced. - -There is an artistic side to this question, sir. If you made a speech -in Congress, Mr. Chairman, and I should get someone else to repeat -your speech into a machine, and your speech lasted fifteen minutes, -but in order to crowd it into a cylinder that is adapted to reproduce -a speech of two minutes' duration, I should cut, distort, and -disfigure it, and then it was reproduced to the public all over the -land and sold as Mr. Currier's speech, you naturally would be -offended. That is the artistic side of this case. - -Mr. WEBB. You would have no right to represent it as his voice, his -work. - -Mr. BURKAN. That is what they are doing--representing it as his, the -composer's work, and Mr. Herbert's work is judged by the reproduction -of it by these mechanical devices. The public says, "That is Victor -Herbert's composition," or "That is Mr. Chadwick's composition." And I -want to say to the gentlemen here that this proposed law does not only -cover music, but it covers poems, speeches, and stories. - -Now, then, some of these men made this contract. This contract is -solely dependent upon the decision of the Supreme Court. It is not -dependent upon any legislation at all, and the Æolian Company took -absolutely no part in this legislation. The Music Publishers' -Association received an invitation from Mr. Putnam to appear at the -conferences, and we appeared, and we naturally were interested in -getting this legislation. But I say this---- - -Mr. CROMELIN. Mr. Chairman, may I interrupt one moment? - -Mr. CROMELIN. May I deny that? - -The ACTING CHAIRMAN. You will suspend. - -Mr. BURKAN. The Æolian Company took absolutely no part, had nothing -whatever to do with this legislation at all. And I say to you, sir, -that if the purpose of these contracts is to stifle competition and to -control the industry of making perforated rolls and talking-machine -cylinders, then the Sherman Act covers contracts of this kind. I say -to you that the Donnelly Act or antitrust law in our State (New York) -is very stringent; if it should appear to Mr. Jerome or to the -attorney-general of New York, in which State the Æolian Company has -its principal place of business, that these contracts tend to stifle -trade, or were entered into to destroy competition, each one of these -conspirators could be sent to jail, and could be restrained by -injunction from enforcing the contracts. We have antitrust laws, sir; -and under those laws each of these men could be restrained by -injunction from enforcing the contract and criminally punished for -entering into it. - -The ACTING CHAIRMAN. Your time has expired. Mr. Cromelin, you may have -one minute to contradict any statement he has made. - -Mr. CROMELIN. Mr. Chairman, just one minute. Just before leaving New -York Saturday I spoke with the manager of the Æolian Company, and I -wish this to go on record--that he told me that they did not want to -oppose this legislation; that they had contracts; and when people have -contracts of this kind they do not go to the house tops and proclaim -the fact. The only reason you know of this contract, sir, is because -it is a matter of record in the case of the Apollo Company in the -second circuit of New York. - -Mr. CHANEY. Do you mean to say that this contract is an improper one -to make? - -Mr. CROMELIN. Not at all; I did not say that, sir. - -Mr. CHANEY. Then what concern is it to us, who are engaged in framing -this bill, about that contract? - -Mr. CROMELIN. The chairman asked the gentleman whether the Æolian -Company was interested in this---- - -Mr. BURKAN. Absolutely not. - -Mr. CROMELIN. And the manager of the company told me that they were. - -The ACTING CHAIRMAN. It might occur to some members of this committee -that if one concern was to get an absolute monopoly of making -perforated rolls or musical disks, it did concern this committee. - -Mr. BURKAN. Can I say a word, sir, on that point? There are hundreds -of publishers, sir--hundreds of publishers who are under no contract -with the Æolian Company; there are hundreds of composers who are under -no contract with this company. You are legislating for the future, and -it seems unfair that hundreds of publishers and composers, not parties -to this agreement, should be punished because a number of publishers, -10 or 20, have made an unlawful agreement. That is the question that -you must consider in connection with this "monopoly" charge. - -Mr. WEBB. Now, you are a lawyer? - -Mr. BURKAN. Yes, sir. - -Mr. WEBB. May I ask you your opinion as to whether or not the word -"writings," referred to in article 8 of the Constitution covers these -rolls? - -Mr. BURKAN. Yes, sir; yes, sir. If you will just allow me three -minutes---- - -The ACTING CHAIRMAN. No; answer the question. I can not allow you -three minutes, because we shall have to go over to the House. The -hearings will be closed right here, as soon as you answer that -question. - -Mr. BURKAN. In the circuit court of appeals, White-Smith Company _v._ -Apollo Company case, the court said in a decision involving the -question as to whether a perforated roll is an infringement of the -copyrighted work which it is adapted to reproduce, and it is important -in connection with the claim that Congress has no power to enact this -legislation---- - - The questions raised in these cases are of vast importance and - involve far-reaching results. They have been exhaustively discussed - in the clear and forcible briefs and arguments of counsel. We are - of the opinion that the rights sought to be protected by these - suits belong to the same class as those covered by the specific - provisions of the copyright statutes, and that the reasons which - led to the passage of said statutes apply with great force to the - protection of rights of copyright against such an appropriation of - the fruits of an author's conception as results from the acts of - defendant. - -This language of the court is in itself, without further argument on -the definition of the word "writings," sufficient warrant and authority -for the Congress to enact this legislation. - -(The hearings were thereupon announced closed.) - - - - - - -End of the Project Gutenberg EBook of Arguments before the Committee on -Patents of the House of Representatives, conjointly with the Senate Committee on Patents, on H.R. 19853, to amend and consolidate the acts respecting copyright, by United States Committee on Patents - -*** END OF THIS PROJECT GUTENBERG EBOOK ARGUMENTS ON COPYRIGHT *** - -***** This file should be named 40613-8.txt or 40613-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/0/6/1/40613/ - -Produced by Mark C. 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