Section 3 should be amended by striking out "the copyrightable"_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.

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

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

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,

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

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.

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

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

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

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.

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

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

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

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

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'

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

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

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

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

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

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

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

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'

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

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

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

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

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

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

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

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

"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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now, if you please, turn to section 18, subdivision B. It gives a

find at line 13 of the House bill, which I hold, that it gives a

"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

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

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

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

[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

such decision shall uphold the applicability of the United States

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

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

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

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

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.

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. · 第 1 / 26 章