Section 4966 of the Revised Statutes sho_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.

altogether, and so far as its provisions appear in this bill they

should be limited to musical-dramatic compositions, and the

provisions for damages other than actual damages and for

imprisonment should be absolutely eliminated.

Very respectfully,

H. N. LOW.

The ACTING CHAIRMAN. Now we will hear the gentleman who represents the

talking machines.

STATEMENT OF S. T. CAMERON, ESQ., REPRESENTING THE AMERICAN

GRAPHOPHONE COMPANY, OF NEW YORK CITY.

Mr. CAMERON. Gentlemen, the first objection we have to the bill is, in

our mind, the most serious one, and one which has been several times

touched upon heretofore, so that I shall not attempt to go into any

very great detail in discussing it here, but shall simply call

attention to the fact that we object to it, and point out to you why,

in connection with our particular business, it is especially

important.

If you will turn to section 4 you will find that it reads:

That the works for which copyright may be secured under this act

shall include all the works of an author.

Our position is that this is in direct contravention of the

Constitution. If you will substitute in that clause the word used by

the Constitution, and say that the works for which copyright may be

secured under this act shall include all the "writings" of an author,

then we do not object to that section.

Now, if you will take certain other sections of this bill, with that

change made in section 4, and attempt to read them, particularly where

the word "reproduce" occurs, or the word "reproductions" occurs, you

will see the importance of it to us.

Take, for example, section 3, immediately above:

That the copyright provided by this act shall extend to and protect

all the copyrightable component parts of the work copyrighted, any

and all reproductions or copies thereof.

If you read that word "reproductions" with the word "works" in section

4 changed to "writings," reproduction means a very different thing.

If you will turn to section 18, on page 14, subclause b, you will find

this language:

Any arrangement or reproduction in some new form of a musical

composition.

Mr. CHANEY. What do you understand the word "works" to mean in section

Mr. CAMERON. It may mean anything that is reduced to writing, or that

is not reduced to writing. It may be an oral speech that is absolutely

wafted upon the winds of the air and never gets into permanent form.

In proof of that we go to section 5, line 20: "Oral lectures, sermons,

addresses."

The talking-machine art stands in a somewhat different position from

that of the perforated music roll. You take a sheet of music and you

have Sousa's or any other band play that music into the horn of an

instrument, a patented apparatus. That machine engraves lines

corresponding to what? To the sound waves produced by the band or the

voice of the performer on the wax or other tablet.

Now, if you make that word "works" read "writings," as I understand,

as the Supreme Court has interpreted the word "writings," it means

this, in its broadest signification: That the idea of the author has

been recorded in some tangible form, in such a way that another,

through the eye, may have the idea of the author impressed upon his

brain. That may be a painting; it may be the work of an artist. I

think the Supreme Court has included a painting under that term

because of that very fact, that the idea of the artist was recorded in

some tangible form and, through the eye of the beholder, the idea of

the artist was conveyed to the brain of the beholder. That is what a

writing is, as I understand it, within the meaning of the

Constitution.

Mr. CHANEY. The effect of your argument is, then, to limit the word to

something that can be read by anybody?

Mr. CAMERON. Not necessarily by anybody.

Mr. CURRIER. But by somebody?

Mr. CAMERON. Yes. I can not read Sanskrit.

Mr. CHANEY. I mean to say, that can be read by persons understanding

the same language?

Mr. CAMERON. Yes; something that is capable of conveying to the

reader, if you may call him such, the idea of the author.

Mr. CHANEY. And in that respect it would cut out the music-roll

proposition altogether?

Mr. CAMERON. As my predecessor has told you, there is a dispute in

regard to that, and I am not qualified to state. As far as I have been

able to analyze the evidence, the preponderance is against the idea

that the music roll can be read. But I do know this: There is a

graphophone record of the disk form [exhibiting record to the

committee]. There is a graphophone record of the cylinder form

[exhibiting record]. I defy anyone--I defy Mr. Sousa to read that and

tell whether it is one of his marches or whether it is a speech of a

Member of Congress. [Laughter.]

Mr. CHANEY. They are often very much alike. [Laughter.]

Mr. CAMERON. They are both musical. [Laughter.]

Mr. MCGAVIN. They are alike in volume of sound. [Laughter.]

Mr. CAMERON. I am not making this statement theoretically nor as a

lawyer. I make it as an expert in this particular art. I have spent

months and months of time with the microscope myself striving to do

that very thing, and I know it can not be done.

Now, let us go one step further. What is it that makes that

graphophonic record valuable? I can take Mr. Sousa's score and I can

select some person, some alleged musician in this audience, and I can

hand him a graphophone and tell him to make that record, and it would

not be worth one cent upon the market. It takes the genius of a Sousa

to play into the horn. It takes the voice of the magnificent singer to

sing into the horn; and it takes the skill of the mechanician who is

operating the graphophone to make a fine record that has a marketable

value.

You ask me if I would use Sousa's march, make that record and sell it,

and not pay him any royalty. I answer, "Yes; I would;" because I have

paid him royalty. Whenever Mr. Sousa publishes one of his pieces of

music and puts it out upon the market and I pay the price of that

music, that sheet of music passes from under the monopoly, just as

when I patent a cornet and sell the cornet to Mr. Sousa, and he pays

the price for it, it passes out from under the patent monopoly, and he

has a right to use it. Suppose I should come here and say to you that

every time one of Mr. Sousa's cornet players played the cornet that I

had sold to him that he should pay me royalty for having played it!

That is what he is asking of you. That is not all.

Mr. Sousa himself does not scorn, as he pretended to the other day,

these "infernal talking machines." The day has been when Mr. Sousa

himself came with advance scores and begged to have them put upon the

machines, in order that they might popularize his own music. Nor is

that all. He to-day is under contract, and he plays into these

"infernal machines" with his band, and he is contributing, as he told

you a few days ago, to stifle these "beautiful young voices that now

have disappeared throughout our city and our land." [Laughter.] He

does it for the almighty dollar. That is what he is after, and he

frankly told you so.

Mr. SOUSA. I am honest, anyway. [Laughter.]

Mr. CAMERON. You are; and, as I said to you the other day, I respect

you for it. All the men urging this bill are not as honest as you are,

sir.

Mr. CHANEY. That is neither here nor there. We give them all credit

for being honest.

Mr. CAMERON. I would not have made that remark if I had not been

interrupted.

It was stated a moment ago, and it is a fact of which I wanted to

speak, that the intention here is to give everyone a fair show. The

gentleman here on my left (Mr. Webb) suggested that this bill would

not prohibit the perforated music rolls (and the same question would

apply to the graphophonic cylinder) from the reproduction of those

pieces of music or other copyrightable works which had appeared and

been copyrighted prior to this act. In that he is in error. Section 3

says:

Any and all reproductions, or copies thereof, in whatever form,

style, or size, and all matter reproduced therein in which

So that it does not go only to matter that is copyrighted subsequent

to the passage of this act.

Mr. WEBB. I was speaking particularly of section g. That was the

section that the gentleman was objecting to, and I referred to that

particular portion.

Mr. CAMERON. The act, however, would apply by reason of section 3 to

subsisting copyright.

Mr. WEBB. Yes; that may be so.

Mr. CAMERON. There is a situation in the talking-machine art that is

perhaps divisible. You see two distinct forms of records. The company

which I represent--the American Graphophone Company--makes both of

those forms. There are a great many other companies, some of them

making the machines and the records, and some of them making only the

records. Some of them make the cylindrical form of record and some of

them make the disk form of record; but there are two large, prominent

companies, one of which makes the disk form of record and the other of

which makes the cylindrical form of record. As I say, the company

which I represent makes both.

Follow me now, if you please. There is also as close a musical trust,

as has already been said to you by my predecessor, in this country as

it is possible to form. That extends not only throughout this country,

but throughout the world. There are a few musical geniuses who are

able to stand above it and make them scramble for the genius. You have

two of them with you to-day, Victor Herbert and John Philip Sousa. But

John Philip Sousa can not speak for the struggling young composer who

is not powerful enough to compel this trust to come to him instead of

the young man going to the trust.

How does that effect us? Did you hear any opposition to this bill from

the attorney of the Victor Talking Machine Company? No. They make the

disk form of record. Have you heard any opposition from the National

Phonograph Works--the Edison Company--in regard to this bill? No. They

make the cylindrical form of record. Why does the Victor Talking

Machine Company come here with such a virtuous show of regard for the

author, and say they have no objection to this? Why is not the

representative of the Edison Company--the National Phonograph

Works--here opposing this bill? Because, as I charge, and I think I

can substantiate it before I get through--not here, but I mean before

the hearings before this committee are through--there is under way the

same iniquitous proceeding that was outlined to you by my predecessor

in connection with the music rolls.

Mr. PETTIT. That is absolutely untrue, as far as the Victor Talking

Machine is concerned.

Mr. CAMERON. You can have a chance to reply when your time comes.

One company gets the exclusive right to make the disk form of record

from copyrighted music, and the other the exclusive right to make the

cylindrical form of record. Let us assume for a minute that what the

gentleman says is literally true. Let us assume, I say. Is it not

possible for just that combination to be made, and should the American

Graphophone Company, which has millions of dollars invested in the

enterprise, honestly and fairly built up under the laws of this

country, money put in and money which it had an absolute right to

presume the law would protect--should that company be placed in the

position where it should be practically driven out of business by any

such monopolistic combination? Will you gentlemen give them that

opportunity?

I am not prepared to say that this music publishers' combination is

the most gigantic trust on earth, but it is an absolutely close and

effective trust. You may reply that we have the right to play and put

upon these records all of the old noncopyrighted productions, those

that are now within the public domain. To that I reply that the

perforated music roll man or the talking machine man who attempts to

rely solely upon old music will go out of business inside of eighteen

months. He has got to meet the demand for the popular airs of the day.

He has got to be able to produce Sousa's and Victor Herbert's latest

productions. "I want what I want when I want it." That is where the

public stands. [Laughter.] You wait three years instead of fifty, and

where would we be?

Moreover, we go to Japan, we go to China, we go to the various

countries of the earth, and make these records--get the original

records. We do not make the original record on that disk. We do not

make it upon that cylinder. We make an original record from the voice

of the singer. That original record in the case of the cylinder is

first very carefully covered with plumbago, to render it electrically

conductive. It is then electroplated with copper; by applying cold,

the original record is shrunk out, and you then have a mold, which has

on its interior a perfect counterpart of the sound groove cut upon the

face of the original record. We pour into that mold melted wax, or a

composition that is called wax in the trade. When that is hot, it

takes the impression of the mold and retains that until it sets; and

as it cools it contracts, and we are then able to withdraw that from

the mold, and after trimming the ends, that reproduction, that copy,

is as perfect a record as the original one. If it were not so, we

could not make and sell a record for fifty cents when we have to pay

the singer from $500 to $1,000 or $3,000 for making the original

record.

Mr. WEBB. I was going to ask, How do you get Mr. Sousa's pieces? Do

you pay him for it?

Mr. CAMERON. We do not; no, sir.

Mr. WEBB. Who does?

Mr. CAMERON. The Victor Talking Machine Company has an exclusive

contract with Mr. Sousa, and he gets paid for that. He did not tell

you that the other day.

Mr. SOUSA. That is absolutely untrue.

Mr. CAMERON. If it is untrue I am ready to beg the gentleman's pardon.

I had that information direct this morning, but I will gladly withdraw

it upon Mr. Sousa's word--gladly. I do not want to make any

misstatement.

Mr. SOUSA. I have never received one penny for my compositions from

any kind of talking machine, nor have I ever made a contract with any

of those companies.

Mr. CAMERON. I did not state that. I stated that Mr. Sousa, with his

band, played into the horns of these instruments to make these records

and was paid for doing it.

Mr. SOUSA. An organization known as "Sousa and his band," employed

just as any other body of musicians, in which I have no part myself,

plays into the instrument. That goes under arrangements made with the

management of that organization to play anybody's compositions that

these firms may elect; it may be a noncopyrighted piece or a

copyrighted piece, or anything else.

Mr. CAMERON. I am very glad Mr. Sousa stated that. He says that he

does not play his own music only, but his band stands ready to play

any other man's music, copyrighted or not copyrighted, into these

machines.

Mr. SOUSA. Not myself; no.

Senator LATIMER. I want to ask a question of Mr. Sousa, so as to clear

the matter up a little further. The statement is that you have a band

that plays into these instruments, and you, I understand, have denied

that?

Mr. SOUSA. No, sir; I do not deny that "Sousa and his band," an

organization known as "Sousa and his band," play for talking machines.

Senator LATIMER. Do I understand you to say that you have no

connection with that band?

Mr. SOUSA. I am the director of that band, but I have no personal part

in the performance of those pieces. I have never been in the

gramophone company's office in my life.

Mr. MCGAVIN. Do you play for anyone else besides the Victor Talking

Machine Company?

Mr. SOUSA. My manager has a contract with them for so many

performances.

Senator LATIMER. You have an interest in the band and receive profit

from it?

Mr. SOUSA. Yes; surely.

Mr. WEBB. You allow your name to be used all over the country?

Mr. SOUSA. In the performance of these pieces, certainly.

Mr. CAMERON. That was my charge.

Mr. HERBERT. In regard to the untruth the gentleman has stated----

The CHAIRMAN. Do you want to deny any statement that he has made?

Mr. HERBERT. Yes. In regard to this, naturally it would be inferred

that it was the same case with me. In fact, he mentioned us two

together. A band played into these instruments, calling itself "Victor

Herbert's band," and I sued the talking machine company. That is what

I got out of the company.

Mr. CAMERON. The gentleman misunderstood me. I have made no statement

in regard to him, and I have no information in regard to him one way

or the other.

Mr. CURRIER. He made no charge against you, Mr. Herbert.

Mr. HERBERT. Since our names have been linked all the time, I thought

he intended what he said to apply to me also.

Mr. PETTIT. I would like to say to Mr. Cameron in regard to his

statement about the Victor Company and Mr. Sousa, that whenever we

have used Mr. Sousa's music, or rather whenever we used his band on

Victor records, we always paid him for it--that is, we pay Mr. Sousa

for playing.

Senator LATIMER. I want to bring out one point in connection with

that. In making these records, if I understand, now, Mr. Sousa has a

band that represents him, playing these pieces, and you pay for that

music when you get it, or do you not?

Mr. CAMERON. Whoever employed Mr. Sousa pays for it.

Senator LATIMER. Then it is paid for when you get these records?

Mr. CAMERON. I do not wish to be misunderstood. We can take and do

take one of Sousa's marches and have another band, with which Mr.

Sousa is not connected, play, and we make the record; and in that case

Mr. Sousa does not get any of the compensation whatever. None of that

goes to him.

Mr. WEBB. But you do not advertise it as being played by Sousa's band?

Mr. CAMERON. Not at all. We advertise it as Sousa's march.

Mr. WEBB. You advertise it as a march by Sousa as a composer, but

played by somebody else as the executant?

Mr. CAMERON. Yes. That is recognized as such a valuable thing to the

composer, that John Philip Sousa has been to the office of the

American Graphophone Company, in years gone by, with advance scores,

and asked them to send them out, to advertise and help John Philip

Sousa along. He will not deny it. Moreover, we are flooded to-day with

artists that are struggling on the lower rounds of the ladder, that

are not as high up as John Philip Sousa was a few years ago, either,

begging us to do the same thing for them. I mention that to show you

that even John Philip Sousa, before he got where he bestrode the

musical world like a colossus, even he recognized the advertising

value of the talking machine to a composer. We are not doing him such

a great injury.

Mr. SOUSA. I would like to say, Mr. Chairman, that the gramophone,

these talking machines, are really of very recent date. I believe the

gentleman will agree with me when I say that if we go back fifteen

years or sixteen years ago, we looked upon them purely as a toy. I

remember the first one I saw here in this city where I was born. A

gentleman had a man bark into it, and it was a remarkable thing to

hear this thing bark----

The ACTING CHAIRMAN. I would suggest, Mr. Sousa, that you are taking

up this gentleman's time. Unless you want to specifically deny

something that he has said, or ask a question, it is hardly fair to

him.

Mr. SOUSA. If I ever did allow the Gramophone Company to do it, it was

because I did not think it was as important to them or to me as I do

now.

Mr. CAMERON. Please do not confuse us with the Gramophone Company. It

is a different thing.

Mr. CURRIER. Do you wish to deny that you are a musical colossus?

[Laughter.]

Mr. SOUSA. No. I will admit that. [Laughter.]

Mr. CAMERON. One thing more in regard to the constitutional question

which I mentioned. I shall submit, or the company I represent will

submit, a written brief. You will be addressed on that point much more

ably than I can address you by Mr. Walker, who will succeed me.

I want, in closing, however, to emphasize one fact which my

predecessor, I understood, was told was unnecessary. With all

deference to the chairman, who said so, I disagree with him. That is

the fact that not only was the American Graphophone Company and the

talking-machine interests not notified, not only were these

conferences--quarterly conferences, we might call them, held in

secret----

Mr. CURRIER. I think you gentlemen had better all make it clear, when

you speak about these conferences, that you do not refer to committees

of Congress.

Mr. CAMERON. No, sir; we do not. We refer to these star chamber

proceedings, before this bill was introduced into Congress.

Mr. CURRIER. By whom? Not by anybody connected with the Congress?

Mr. CAMERON. By Herbert Putnam and the men he brought around him. That

is by whom.

Mr. CURRIER. I wanted it made clear that you were not referring to any

committees of Congress.

Mr. CAMERON. Every effort was made to keep us from knowing that any

such bill was under way. It was not merely an act of omission, but it

was an act of commission. That is not all. Not only were the American

Graphophone Company not notified, but, if you will turn to the list of

those present, you will find that one of those whom I have mentioned

here, the representative of the Victor Talking Machine Company, at the

third stage of the proceedings, was present--as what? As one of the

musical publishers of the country, representing the Victor Talking

Machine as one of the musical publishers of this country. See how

close the association is.

The gentleman who follows me will point out that association a little

closer. I think by that time the committee will realize that my

suggestion of a close cooperation between the National Phonograph

Works, the Victor Talking Machine Company, and the Musical Publishers'

Association is well founded.

I thank you.

The CHAIRMAN. Gentlemen, we will meet to-morrow morning at 10 o'clock

to hear Mr. Walker.

Mr. BURKAN. I represent the publishers and the composers. An attack

has been made here, and we feel that we should get at least several

minutes to answer the charges that have been made.

Mr. CURRIER. You will have some time to-morrow. We meet at 10 o'clock

to hear Mr. Walker for an hour. After that you gentlemen will have an

opportunity to be heard, undoubtedly.

Mr. CROMELIN. I was to appear here to-day for the manufacturers, in

behalf of the talking machine interests, and was to follow Mr.

Cameron. If the chairman pleases, I should be very glad to continue

the first thing to-morrow morning, and let Mr. Walker follow.

The CHAIRMAN. I could not consent to that, because I understand that

Mr. Walker has been notified that he will be heard the first thing

to-morrow morning.

Mr. CROMELIN. I think Mr. Walker will agree to that.

Mr. WALKER. It will be quite consistent with my convenience to let

this gentleman precede me for whatever time he wishes.

The CHAIRMAN. How long would you want?

Mr. CROMELIN. Probably fifteen minutes to half an hour.

The CHAIRMAN. With that understanding, Mr. Walker, he will precede

you.

Mr. WALKER. Yes, sir. And I am to have an hour after that?

The CHAIRMAN. Yes.

(Thereupon the committee adjourned until to-morrow, Saturday, June 9,

1906, at 10 o'clock a.m.)

COMMITTEE ON PATENTS,

HOUSE OF REPRESENTATIVES,

_Saturday, June 9, 1906_.

The committee met at 10 o'clock a.m., conjointly with the Senate

Committee on Patents, pursuant to adjournment.

Present: Senators Kittredge (chairman), Clapp, and Smoot;

Representatives Currier, Dresser, Bonynge, Campbell, Chaney, McGavin,

and Sulzer.

Mr. PUTNAM. I have one or two communications, Mr. Chairman, in effect

addressed to the committee, which I offer for the record.

The CHAIRMAN. They may be inserted.

The communications referred to are as follows:

WASHINGTON, D.C., _June 8, 1906_.

The JOINT COMMITTEE ON PATENTS,

_United States Senate and House of Representatives_.

GENTLEMEN: On behalf of the Photographers' Copyright

League of America, having participated in the conferences called by

the Librarian of Congress upon the subject of a new copyright law,

we beg to say that we give our hearty assent to the principles of

the bill as proposed. Of course, there are minor matters which

might have been otherwise drafted by us, but we as cheerfully

surrender such particular items, as did many other interests

represented at the conference.

the property of the copyright owner, and though remedies for damage

are manifestly necessary, prevention of injury is the matter of

highest importance to the copyright owner. Legislation which acts

as a deterrent is the active principle of protection prescribed by

the Constitution. For these reasons we believe the pending bill has

been framed upon logical and consistent lines which, if enacted

into legislation, will doubtless form precedent for other countries.

Very respectfully,

PHOTOGRAPHERS' COPYRIGHT LEAGUE OF AMERICA.

B. T. FALK, _President_.

PIRIE MACDONALD, _Delegate_.

HORACE PETTIT LAW OFFICES,

_Philadelphia, June 1, 1906_.

HERBERT PUTNAM, Esq.,

_Librarian of Congress_, _Washington, D.C._

DEAR SIR: Referring to the proposed bill to amend and consolidate

the act respecting copyright, a copy of which has been handed me,

with your circular letter regarding suggestions, I would say that

I would propose that the following clause be added continuously to

the end of section 3:

"_And provided_, That nothing herein contained shall apply to

sound records made or to be pressed from dies or matrices

manufactured prior to the passage of this act."

That the following be added to section 18, paragraph (_b_), line

7, of said paragraph, between the word "composition" and the word

"any," viz, "including any talking-machine record."

The amendment to section 3 is mainly designed to protect

talking-machine manufacturers who have invested very large sums of

money in records and in dies or matrices for pressing the same,

many of which contain musical compositions the notation of which

has been copyrighted, but which under existing laws these records

do not in any manner infringe. To now take away the right to use

these matrices and records, into which so much money has been put,

would be very unjust and inequitable and work a great hardship

upon the talking-machine manufacturers--that is, if my reading and

understanding of this bill is correct. This would tie up a very

large amount of capital, and place the talking-machine record

manufacturers at the mercy of the owners of subsisting copyrights.

The object of the amendment to section 18, paragraph (_b_), is to

relieve any doubt that records containing the characteristic

articulation of the human voice, or the characteristic

instrumentation by a performer, adapted for reproducing these

characteristic utterances and performances to the ear are intended

to be included as copyrightable matter under section 4 of this

bill.

I think there will be no question but that the particular

characteristic utterances of a singer, or recitationist, or of an

actor, or of an orator, or the particular instrumentation of a

pianist, or leader of an orchestra, etc., independent of the

composition itself, whether it is copyrighted or not, should be

equally entitled to protection, as a photograph or reproduction of

a work of art.

It matters not whether the subject-matter of the record is

otherwise copyrightable or not. If the piece played is copyrighted

as a musical composition, it can not be reproduced on a sound

record, in accordance with the bill, without the permission of the

composer. A Paderewski, however, may play the copyrighted

selection, and a record of his rendition of it, with all his

personality and individuality thrown into the piece, should be

entitled to a copyright on a sound record for reproducing

purposes.

This is true also of the voice of a Caruso or a Melba singing

either a copyrighted or uncopyrighted piece. It is true also, as a

further illustration, of the recitation by Henry Irving of "Eugene

Aramas' Dream." What is here copyrighted in these records is the

individuality and personality of the rendition by the performer.

It is the picture of the voice, or of the instrumentation, as, for

instance, a copyrighted photograph is a picture of a person or

thing.

Should another performer play the same piece played by a

Paderewski the personality of Paderewski would be absolutely

wanting, and the same difference between the two performances of

the same composition would be in the respective sound records as

would exist at the actual performance of the respective pieces.

The same differences between Caruso's rendition of a selection

from Rigoletto and a concert hall singer's rendition of the same

would exist in the sound record and the reproduction therefrom as

would exist in the actual singing of the selection. This is true

regarding personality of every voice and instrumentation recorded.

So-called talking-machine records in this respect differ quite

materially from the mechanical organ and piano, for the reason

that a so-called talking-machine record is an exact record of all

the modulations, and all the characteristic articulations of the

voice, as well as of all the characteristics of an

instrumentation. In other words, it is an exact picture of all the

merits and demerits of the original, and the original is

reproduced with an exactness so that frequently, at a distance, in

the present perfected state of the art, the reproduction may very

well be mistaken for the original.

This record of the voice and instrumentation for sound reproducing

is an art which was not commercially available, or perfected, when

the earlier copyright laws were passed, and therefore were not

included. It is doubtless the intention of the framers of this

bill to include such sound records as copyrightable matter, but in

order to relieve the bill from any doubt it may properly be

expressed in this section as I suggest.

Hoping that this will meet with your approval, I remain,

Yours, very truly,

HORACE PETTIT.

THE PLAYWRIGHTS LEAGUE CLUB,

_New York, N.Y., June 2, 1906_.

LIBRARIAN OF CONGRESS, _Washington, D.C._

DEAR SIR: We are in receipt of your favor of the 31st ultimo, with

copy of proposed copyright law. After careful consideration the

provisions of this law seem admirably suited to the purposes, and

its framers deserve great commendation.

As circumstances do not permit my attendance at the hearings, I

would consider it a favor if you would read this letter to the

committee, if not all of it, then the portions which may not be

referred to at the hearing, should anything herein referred to

fail to be considered. The latter paragraphs of the letter are

especially brought to your attention.

In section 1, subdivision C, provision is made for the protection

of an "oral delivery" which has been prepared. Would it not be

well to specifically allow a speaker to announce at the conclusion

of an extemporaneous address his intention of copyrighting it, not

permitting this announcement, however, to interfere with the

liberty of the press in reporting portions of it?

Section 9 directs that notice of copyright shall be given at each

public delivery of a lecture or similar work. Does "similar work"

include dramatic composition? Is the proposed notice to be given

orally, or by publication on a programme, if there is a programme?

It would seem that in the case of a dramatic composition

theatrical managers should be compelled by law to print on each

programme copyright notice of the play or plays produced, being

allowed, where there is no programme, to announce it orally.

It would also seem important that in the case of a dramatic

composition publicly acted in foreign countries notice of

work in English, be printed on the programmes, as well as on the

manuscript copies of the play. This would serve as a notice

against translators, who otherwise would have great difficulty in

finding out whether a foreign play had been copyrighted here,

since the name of the play or its English equivalent rather, would

be very uncertain. Does the new law specifically require all

titles to be also in English?

Does the law provide for the registration of the title in advance

of the deposit of copies as at present--a valuable privilege?

Section 20 seems calculated to work an injustice to novelists.

That the author's exclusive right to dramatize his copyrighted

work should cease in the event of his being unable within ten

years to induce managers to produce his dramatization would be

unfair--would, in fact, encourage producers to wait until after

ten years before producing a dramatization of a novel. Would it

not be sufficient to state that the exclusive right terminates at

the end of ten years provided the author does not file at least an

unpublished dramatized version?

Does this section 20 mean that a foreign dramatist who deposits an

unpublished and untranslated copy of a dramatic composition loses

his rights if his play is not produced publicly in ten years, or

does it allow him to deposit a translated unpublished copy any

time within ten years, in order to protect his rights?

Section 45 might be profitably augmented by including the

privilege of allowing an author who writes under a pen name to

print the notice of copyright also under the same pen name. This

would be a considerable privilege, since at present he must go

through the complicated process of assigning his copyright to

another if he does not wish his real name to appear. In his claim

for copyright he could state both his real name and his pen name

in which he wished the copyright to appear. This would work

injustice to no one and would be a great convenience to authors

whose real names are of an uninspiring nature.

This section 45 might also contain a provision allowing an author

to change the title of an unpublished work without deposit for

further copies, provided he paid a fee, since almost every

unpublished play is renamed. The duplication of copies of the same

work under different titles is of no service to the copyright

office and is frequently an expense to authors. The production of

a play under any other than its copyrighted title should

invalidate the copyright.

The requirement of section 60, raising the copyright fee from 50

cents to $1, will work a real hardship to many writers,

particularly those who write short plays for vaudeville and have a

hard time to make a living, to those who write many plays without

ever securing any returns, and to the writers of words of songs,

whose work is apt to be stolen unless copyrighted and who receive

a very small compensation in any event, as a rule. We would

strongly recommend that for unpublished works and short articles

in periodicals especially copyrighted and for photographs the fee

be held at 50 cents, or even reduced to 25 cents.

Upon the enactment of the new law the copyright office will

receive from the dramatic writers a great many more works than are

at present offered, owing to the unsatisfactory condition of the

existing law. The number of dramatic compositions offered will

also be greatly increased by the favorable fact of the omission on

the notice of copyright of the year. At present the author of an

unpublished play must state the year of his copyright on his

title-page, and as it is often ten years or more after a play is

written before it secures a production, this telltale date proves

a great drawback in submitting the play to managers, and therefore

many authors prefer to run the risk of losing their plays rather

than to affix this hall-mark of antiquity. The prospect of this

increased revenue should be sufficient to induce the makers of the

law to reduce the copyright fee on unpublished works.

I should recommend also that a specific clause be added making it

a misdemeanor to copy from an unpublished manuscript any portion

without authority, or to be found in the possession of an

unpublished copyrighted manuscript or parts thereof without

authority. This would correct two grave abuses, one, the stealing

of an author's ideas and dialogue by a manager to whom the play

might be submitted, and the second, the stealing of manuscripts

after a play is produced. One bureau openly advertises and

continually sells for a few dollars manuscripts of produced plays,

and the sale of such manuscripts enables infringers to deprive

authors of great sums in royalties. The adoption of such a section

as this will, of course, be sharply contested, but there is

absolutely nothing inequitable in it for any person not intending

fraud.

It might also be well to deny the privilege of copyright to

authors who allow their plays to be publicly performed without

first securing a copyright.

I trust that none of these suggestions will be taken as a

criticism of the proposed law, which will confer great benefits

upon and will greatly stimulate native art, but I am confident

that the importance of some of the proposed additions and the

convenience of others will at once be seen.

Allow me to thank you for your courtesy in sending us the copy of

the proposed law, and to request the favor of any further matter

which the copyright office may have to issue upon the subject.

Yours, respectfully,

THE PLAYWRIGHTS LEAGUE CLUB,

By EDWIN HOPKINS, _President_.

BRIESEN & KNAUTH, COUNSELORS AT LAW,

_New York, June 8, 1906_.

_Library of Congress, Washington, D.C._

SIR: On behalf of a number of clients, who are interested in the

new copyright bill, we respectfully beg to suggest that in order

fully to carry out the broad purpose of the framers of the bill,

the bill should be amended substantially as shown in the

accompanying draft amendment.

The bill as it now stands does not provide for the registration,

by means of one entry, of a great many works of literature or art

which from necessity are printed on detached sheets.

Section 60 of the bill provides that several volumes of the same

book or a series of photographs, drawings, etc., relating to the

same subject--with variances only in pose or composition--may be

registered for one fee. But a connected series of instruction

carded for educational use, a series of color prints to be used on

toy building blocks, sliced animals, games of authors, and other

card games are protected. There is no doubt that a new game, such

as pit, flinch, etc., should be copyrightable as a unit, whether

with or without rules for instruction, in such a manner that all

the artistic work and literary work may be fully covered by

connected, and are not each provided with separate copyright

notice.

While the experts in charge of the bill may be able to phrase this

purpose in words more apt than those contained in the proposed

amendment, there is no doubt that it is the intention of the

framers of the bill to include the articles referred to in this

letter, and also that the bill as it now stands does not cover

such articles.

Respectfully,

BRIESEN & KNAUTH.

_Proposed amendments to bill S. 6330._

Section 5, page 4, after line 7 insert "(m) Miscellaneous."

Line 12, change period to colon, and add:

"_And provided, furthermore_, That a series of copyrightable

works, assembled for a unitary purpose, shall be considered as the

subject-matter of a single copyright registration, fee and notice

should the applicant elect, whether or not the items comprising

said series are actually joined by binding or otherwise."

Section 60, page 38, line 15, change period to comma, and add: "or

of a series considered as the subject-matter of a single copyright

registration as provided for in section 5 of this act, where the

items composing it are deposited at the same time under one title

with a view to single registration."

Mr. Chairman, I ask leave to interpolate a word to the group of

interests adverse to these "musical-device" provisions of the bill. I

say it for the Government. And in order to avoid a syllable more than

is necessary I have written it.

The reasons, gentlemen, why your group was not invited to the

conferences were made plain in my opening statement. First, the

conference was a conference of associations, and your interests are

not organized into an association. But, second, the conference was to

be particularly of those interests concerned "in an affirmative

way"--that is, in amplifying the copyright protection; and your

interests are negative. We quite anticipated the issue raised by these

provisions, but it was not an issue which seemed appropriate to the

conference nor for other reasons one likely to be settled by the

conference.

Mr. Thomae represented that his interests might in one aspect be

affirmative also and asked to hear the discussion. He was permitted

to. He was not invited; he did not participate; he uttered not a word

in the course of the entire proceedings. But he asked to come and

listen, and he was permitted to. On the list of the few others present

as observers you will find the name of Gen. Eugene Griffin. General

Griffin came to us in March saying that he understood some such

provisions as these were under consideration; he had some interest in

a concern which would be affected; could he attend the conference and

hear what was proposed? Certainly. And he did. Mr. Thomae was to us

but the maker of a particular typical device. With Mr. Thomae as a

competitor among you we had no concern. What device or company General

Griffin was interested in we did not know and I do not know to this

day. But we took care to insert the names of both gentlemen on the

printed list of those present, so that you and others might be free to

make such inference as you chose from the fact of their presence. And

this list was furnished freely to all requesting it.

These conferences have been going on for a year past. The fact that

they were being held, their purpose, and the associations

participating in them was freely published. Among these associations

were the composers and the music publishers. In the Apollo suit then

pending they were trying to secure protection of this sort under

existing law. There was every reason to suppose that they would urge

it in the new statute. Did any of you ever inquire of us whether they

were doing so? As long ago as last December the President announced to

Congress, and in the most public way to the country, that the bill had

already been prepared. Did you ask us for it? Did you even ask whether

such a bill would be likely to include any such provisions? As long

ago as January the music trade journals began to refer to the fact

that it would do so. Did you then ask leave to come to the next

conference? Did you ask even as to the character of the provisions?

Did you communicate with the Copyright Office in any way in the

matter? You know you did not.

The fact that you did not is not to prejudice you in any way, and the

fact that you did not participate in the conferences I have myself

emphasized to the committee to your advantage, pointing out that these

provisions had been inserted without discussion at the conferences by

any interest naturally adverse to them. The fact is to your advantage.

I earnestly suggest that you avoid giving it a twist such as Mr.

Cameron gave it yesterday; I mean by such expression as "star chamber

proceedings." We can't let such imputations against the Government

stand uncorrected. But we hate to have to divert attention from the

main issue in order to correct them. The main issue is the merit of

these provisions. We are as anxious as is the committee to know your

substantial objections to them. And our interest is absolutely

identical with that of the committee in seeing that the objections you

show shall have due value and effect.

(The following letter was subsequently written by Mr. Putnam, and by

direction of the chairman made part of the record:)

JUNE 16, 1906.

Messrs. CHAIRMEN: In my remarks to the representatives of the

talking machine and perforated roll interests at the hearing of

June 9 I stated that Mr. Thomae had not been "invited" to the

conferences. Of course he was invited or he could not have

attended. What I meant was that he was not among those originally

invited or in our list of those naturally entitled to be present.

I had thought the distinction sufficiently clear from the context;

but I find that it was not.

The chief purpose of my reference to him and to General Griffin

was not, of course, to excuse or explain their presence, but to

indicate how readily access to the conference could be secured by

a request to the copyright office.

Very respectfully,

HERBERT PUTNAM,

_Librarian of Congress_.

The CHAIRMEN OF THE COMMITTEES ON PATENTS OF THE UNITED STATES SENATE

AND HOUSE OF REPRESENTATIVES.

Mr. CURRIER. I wish to say that last winter some time Mr. Griffin, who

is interested in one of the perforated-roll concerns, called at the

committee room and talked about this matter, and I advised him at that

time to see Mr. Solberg and Mr. Putnam. The committee clerk has had

some correspondence with him since that time, and other gentlemen

connected with that same business, I suppose, have been into the

committee room to make inquiries regarding this matter pretty nearly

every week for months.

Mr. CAMERON. I would like to say that I do not even know who Mr.

Griffin is.

Mr. CURRIER. He is the vice-president of the General Electric Company.

I think he lives in Brooklyn and is connected with some

perforated-roll company.

Mr. CAMERON. I wish to point out that the remarks that I made were in

connection with the American Graphophone Company and the automatic

talking machine, and not the perforated-roll business. That is the

matter that is involved in these suits, not the talking machines.

Mr. BURKAN. Mr. Griffin represents the Edison Company, and they

manufacture talking machines.

Mr. DAVIS. Mr. Griffin does not represent the Edison Company, and he

is a director of the Perforated Music Roll Company, who operated under

my patents. General Griffin is now in Europe, and this notice which I

referred to yesterday, in which I stated that notice was given me that

my license would be canceled in case this bill passed, came from Mr.

Henderson, the acting manager of the Perforated Music Roll Company, on

behalf of General Griffin and other directors.

Mr. Henderson notified me that the passage of this act would put them

out of business. He also stated to me that General Griffin had stated

to him that he attended these conferences, and that he considered them

logrolling proceedings, and that in time he would take action to

oppose them. But at present General Griffin is in Europe. I am sure,

from his remarks, that he would oppose this measure in the strongest

possible way.

Mr. CURRIER. I have no doubt that he would. He gave me so to

understand.

Mr. CHANEY. I think it is due to this record to say that the ultimate

responsibility about this whole matter rests with Congress, and that

these matters are all simply advisory, to help us to the proper

conclusion and result, and that none of these gentlemen are going to

be deprived of an opportunity to express themselves in whatever way

they please, and to say whatever they may have to say, and that, so

far as we are concerned, there is no star-chamber proceeding about it,

and no logrolling business about it. We are here simply to get advice

the best we can, and therefore we shall undertake to hear everybody.

The CHAIRMAN. Mr. Chaney is entirely right. The sentiments that he has

expressed have been freely stated by the committee during the past

three or four days that we have been in session. The committees of the

Senate and the House are willing, and will be willing, to hear anyone

who has objections to or who is in favor of this bill at any time

within any sort of reason. It seems to me that it is to little

purpose, so far as the committees are concerned, that there should be

any controversy between anyone regarding the past. Who is the next

witness?

Mr. CURRIER. I might say that it was for that reason that both

committees decided to make no effort to report this bill at this

session, but to let it go over until next winter, in order that people

could have an opportunity during vacation to file briefs and such

statements as they might desire to offer.

The CHAIRMAN. That is the precise purpose of the statement made by Mr.

Currier in behalf of the House committee at the first session or the

second, and by myself in behalf of the Senate committee.

Who is the gentleman that desires to be heard further?

Mr. PUTNAM. Mr. Cromelin.

The CHAIRMAN. You have how many minutes?

Mr. CROMELIN. I understand that I have half an hour.

The CHAIRMAN. You were limited, two days ago, to one hour for your

enterprises. Mr. O'Connell had a little over an hour, and I am told

that after I was compelled to leave for the Senate yesterday somebody

representing these interests had fifteen minutes. We will give you

fifteen minutes, with the privilege of submitting in writing any

further statement that you desire to make.

Mr. CURRIER. It is necessary to do that, for the reason that two

gentlemen are on the way here from Chicago who want to be heard this

morning, representing the same interests that you represent.

Mr. SERVEN. I present, Mr. Chairman, a letter from the chairman of the

how Mr. Thomae, who was criticised yesterday as being one of their

delegates, came to have a seat with them in the conferences. It

occurred to me that it would save time to have it read for the

information of these gentlemen.

The CHAIRMAN. You may put it in the record.

(The letter referred to is as follows:)

The CHAIRMAN OF THE JOINT SENATE AND HOUSE COMMITTEES ON PATENTS.

_Washington, D.C._

DEAR SIR: I beg to make reply to an accusation against the Music

Publishers' Association of the United States yesterday by the

manufacturers of mechanical perforated music rolls, cylinders, and

disks, in which they claimed our association had corralled into

its ranks, by promise and contracts, the Victor Talking Machine

Company, of Camden, N.J. They further claimed that the Librarian

of Congress had made no attempt to seek them out and give them

representation at the various conferences he had called for the

purpose of securing suggestions from organizations of authors,

composers, and others interested in receiving copyright protection

for their productions.

I beg to state that the copyright department during the interim

between the first and second conferences conferred with me and

asked if the talking machine and music roll manufacturers had an

organization. I replied that I did not know but would inquire

about it. About that time I met Mr. R. L. Thomae, a representative

of the Victor Talking Machine Company, who had just drafted a bill

with the view of presenting it to Congress, for protection on

musical compositions for which his company had secured the right,

having expended about $35,000 for well-known artists who had sung

in the records for them. They wanted protection from the pirates

in their own business from copying such valuable subjects. As a

result of our talk Mr. Thomae decided to drop the bill and secure

protection in the new copyright draft which was then being

formulated.

Mr. Thomae and myself made a trip to Washington, called on the

the talking machine people had no organization, that the delegates

from the Music Publishers' Association should be increased from

two to three, provided the third member was some representative of

the talking-machine interests. After conferring with the president

of the association it was decided to do this, and Mr. Thomae was

selected as such representative. We believe that the talking

machine people should have as good protection as ourselves on

their original or characteristic works embodying the personalities

and instrumentation of their artists, bands, orchestras, etc.,

employed by them.

We hereby declare that the Victor Talking Machine Company has no

contracts of any kind whatsoever with any member of the Music

Publishers' Association of the United States in regard to any

future purchase for use of compositions belonging to us. This

statement will explain in detail how the Victor Talking Machine

Company came to be associated with the Music Publishers'

Association in the copyright conferences held to aid in drafting

the bill here under consideration. All statements to the contrary

are not substantiated by the facts.

On behalf of the Music Publishers' Association of the United

States, whose list of members is attached, I beg to remain,

Sincerely, yours,

GEORGE W. FURNISS,

_Chairman Copyright Committee_.

_Members Music Publishers' Association, June, 1905 to 1906._

Allbright Music Company, Chicago, Ill.

Anthony Brothers, Fall River, Mass.

Ascher, Emil, 24 East Twenty-first street, New York.

Biglow & Main Company, 135 Fifth avenue, New York.

Bloom, Sol, Forty-second street and Broadway, New York.

Boosey & Co., 9 East Seventeenth street, New York.

Bouvier, A. J., Fall River, Mass.

Chandler-Held Company, 439 Fulton street, Brooklyn, N.Y.

Ditson, Chas. H., & Co., 867 Broadway, New York.

Ditson, J. E., & Co., Philadelphia, Pa.

Ditson, Oliver, Company, Boston, Mass.

Ellis, Jno. F., & Co., Washington, D.C.

Feist, Leo, 134 West Thirty-seventh street, New York.

Fischer, Carl, 6 Fourth avenue, New York.

Fischer, J., & Bro., 7 Bible House, New York.

Frain Publishing Company, 20 West Fifteenth street, New York.

Francis, Day, & Hunter, New York.

Goggan, Thos., & Bro., Galveston, Tex.

Gordon, H. S., 1241 Broadway, New York.

Groene, J. C., & Co., Cincinnati, Ohio.

Hald, J. R., Company, 337 Wabash avenue, Chicago, III.

Harms, T. B., Company, 126 West Forty-fourth street, New York.

Harris, Chas. K., 31 West Thirty-first street, New York.

Haviland, F. B., Publishing Company, 125 West Thirty-seventh

street, New York.

Jacobs, Walter, 165 Tremont street, Boston, Mass.

Lyon & Healy, 199 Wabash avenue, Chicago, Ill.

Mills, F. A., 48 West Twenty-ninth street, New York.

Molineux, Geo., 150 Fifth avenue, New York.

Novello, Ewer, & Co., 21 East Seventeenth street, New York.

Parks, J. A., Company, York, Nebr.

Paull, E. T., Music Company, 46 West Twenty-eighth street,

New York.

Remick, J. H., & Co., 45 West Twenty-eighth street, New York.

Rohlfing Sons' Music Company, Milwaukee, Wis.

Schmidt, Arthur P., 146 Boylston street, Boston, Mass.

Schuberth, E., Company, 11 East Twenty-second street, New York.

Sherman, Clay, & Co., San Francisco, Cal.

Stern, J. W., & Co., 34 East Twenty-first street, New York.

Summy, Clayton F., Company, Chicago, Ill.

Swisher, M. D., 115 South Tenth street, Philadelphia, Pa.

Thiebes-Stierlin Music Company, St. Louis, Mo.

Thompson, C. W., & Co., 13 West street, Boston, Mass.

Thompson Music Company, 169 Wabash avenue, Chicago, Ill.

Vandersloot Music Company, Williamsport, Pa.

Victor-Keemer Company, Chicago, Ill.

White-Smith Music Publishing Company, Boston, Mass.

White-Smith Music Publishing Company, Chicago, Ill.

White-Smith Music Publishing Company, 13 East Seventeenth

street, New York.

Whitmark, M., & Sons, 144 West Thirty-seventh street, New York.

Witzmann, E., & Co., Memphis, Tenn.

Wood Music Company, The B. F., Boston, Mass.

York Music Company (A. von Tilzer, manager), New York.

STATEMENT OF PAUL H. CROMELIN, ESQ.

Mr. CROMELIN. Before proceeding, I would like to make this point

clear: That Mr. O'Connell yesterday, in appearing before your

committee, was representing the perforated-roll interests. I represent

the talking-machine interests, which means more in dollar

capitalization than the perforated-roll interests. I trust, while I

shall endeavor to finish my remarks in fifteen or twenty minutes, that

if General Walker is willing, you will extend my time to half an hour.

The CHAIRMAN. We are compelled to limit you absolutely to fifteen

minutes.

Mr. CROMELIN. Very well, sir.

Mr. Chairman and gentlemen of the committee, on behalf of the Columbia

Phonograph Company and the Columbia Phonograph Company, General, sole

sales agents for the American Graphophone Company, I protest against

those portions of the proposed copyright law by which it is proposed

to extend the copyright protection to reproductions to the ear, so as

to include under the term "writings," as this term is used in the

Constitution of the United States in the protection of authors and

composers in their writings, mechanical or other reproductions to the

ear; and, in particular, in so far as this bill may be construed to

cover talking machine sound records in any form soever.

In view of the fact that you are going to limit me to fifteen minutes,

I think it best that I should state specifically my reasons for

opposing this bill, and I have put them down in writing. I have

fifteen specific reasons, and I would request that during the time I

am stating these reasons I shall not be interrupted. I invite the

committee at the conclusion of my statement of these specific reasons

to ask any questions they wish, and I request permission to appear

before the committees at some future time, during the recess of

Congress, to explain in detail all the statements that are made.

Without attempting to elucidate, gentlemen:

First. We protest that such legislation, in so far as it relates to

talking machine sound records of any kind, is unconstitutional.

Second. That such legislation is against public policy and directly

contrary to the spirit and progress of the times.

Third. That the demand for such legislation does not emanate from the

great mass of the musical authors (composers), nor is it demanded by

them, but has been conceived by certain selfish individuals who have

conspired together to form and create a giant monopoly, the like of

which the world has never known.

Fourth. That such legislation, instead of being in the interest of the

composers, is directly opposed to their real interest, which is to

have the greatest possible distribution of such records as the best

means for creating a demand for their sheet music. Abundant evidence

can be furnished to sustain this fact, if desired.

Mr. CURRIER. It is desired.

Mr. CROMELIN. Fifth. That it is class legislation in the interests of

the few as opposed to the enjoyment and happiness of the masses, whose

rights seem regularly to have been lost sight of during its

preparation, and that it is particularly vicious when the rights of

the poor are considered.

Sixth. That in so far as the question of copyright must of necessity

be viewed from an international standpoint, it is inadmissible,

intolerable, and distinctly un-American to grant to foreign composers

the right to extract toll from every American citizen where such right

is denied such foreigner at home in his own land and is denied to

American composers abroad.

I hope during the recess to explain my connection with this matter. I

was the representative of my company in Berlin, Germany, for four

years, and had occasion to appear in this very matter; and I want to

warn you gentlemen against what happened there. I trust that freedom

will be given to all mechanical musical instruments and that no Æolian

monopoly will be able to tack on a provision which will give them

perforated-roll rights and exclusive rights. I propose to show that

this monopoly is not of a national character, but the attempt to

create it is an international conspiracy.

Seventh. That such legislation is directly contrary to all recent

legislation in foreign countries, the most important of which is the

act of the German Reichstag in 1901, by which perfect freedom is given

to use copyrighted works for the purpose of mechanical reproduction;

and by which, by reason of an interpretation announced by the minister

of justice prior to the third reading of the bill, the right to record

and reproduce any copyrighted work by means of talking machines was

expressly permitted.

Eighth. That such legislation is contrary to the spirit of the Berne

convention.

Ninth. That in no other country is substantially like protection

afforded to composers, but that such protection has been universally

denied.

Tenth. That even if such rights were granted under the laws of Great

Britain, Germany, France, Belgium, and other countries, which they are

not, it is beyond the power of Congress to do other than that which it

is expressly permitted to do under our Constitution, and the only way

by which such a law could be enacted which would stand the test of the

highest court of judicial inquiry would be by an amendment to the

Constitution of the United States. On behalf of my company, I protest

against being plunged into such long and expensive litigation as would

necessarily ensue if this bill becomes a law, unless the necessity for

the same is urgent, and this I emphatically deny.

Eleventh. That such legislation is in direct contradiction to all

recent judicial decisions on the subject in this country and abroad in

which common law rights and statutory rights of authors and composers,

their scope, extent, intent, and purpose have been discussed, the most

noted of which in this country is the decision handed down by the

United States circuit court of appeals, second circuit, during the

last week of May, in the Æolian suit against the Apollo Company,

Judges Lacombe, Townsend, and Coxe, without a dissenting voice,

approving and upholding Judge Hazel's opinion rendered in the court

below sustaining the contention that the perforated roll is not a

violation of the copyright, and it is interesting to note that the

court went out of its way to say:

The argument that because the roll is a notation or record of the

music it is, therefore, a copy would apply to the disks of the

phonograph * * * which it must be admitted is not a copy of the

sheet music.

In England the same position is taken by the courts, the leading and

most recent case being Boosey _v._ Whight, in which it was clearly

held that the perforated roll was not a violation of the copyright. In

Belgium, by decree of the fourth chamber of the court of appeals in

Brussels, December 29, 1905, in the case of Massenet and Puccini,

composers, _v._ Ullman & Co. and Pathe Frères, manufacturers, in

dismissing the suit, with costs, the court uses this language--I want

to say to you, gentlemen, that this was a graphophone case:

Considering that these apparatus can not be assimilated to the

writing, or the notation by an engraving process, of the thoughts

of the author; that they have nothing in common with the

conventional signs permitting reading or comprehension of the work

to which they are related; that isolated from the rest of the

instrument they remain in the actual state of human knowledge,

without any utility, that they are only one organ of an instrument

of execution.

In dismissing the suit the court referred to a similar suit decided in

France February 1, 1905, in which it was confirmed that--

airs of music on disks or cylinders of graphophones and gramophones

do not constitute a musical infringement.

Twelfth. That the proposed legislation in so far as relates to

mechanical reproductions is in furtherance of the plans of certain

powerful interests to obtain a monopoly--an international monopoly--on

mechanical reproducing instruments of all kinds, and that they are

attempting to use the legislative branch of the Government to secure

that which has been repeatedly denied them by the courts.

Thirteenth. That it is vicious, in that if it is permitted to be

enacted into law it will deal a deathblow to great American industries

which have been extended until now they embrace all countries, and in

which millions of dollars have been invested in the knowledge that the

right to manufacture was perfectly lawful and that the right to

continue such manufacture, unhampered by such ruinous conditions as

would be imposed by this bill, could never be brought into question or

become the subject of serious dispute.

Fourteenth. That if this bill becomes a law it will seriously affect

the rights of thousands upon thousands of American citizens who have

purchased these machines and who have the right to expect to continue

to use them and to obtain the supplies for them at reasonable prices

instead of paying tribute to a grasping monopoly.

Fifteenth. And finally, that whatever arguments may be advanced by the

association of musical publishers (and their allied interests, whose

representatives framed the bill, and who, if it becomes a law, will

get 99 per cent of the benefits to be derived therefrom), regarding

other methods of mechanically producing sound on the theory that the

same constitutes a method or system of notation and under certain

conditions may be read by persons skilled in the art, under no

circumstances can such arguments be truthfully advanced to cover or

apply to talking machine sound records.

No man living has ever been able to take a talking-machine record and

by examining it microscopically or otherwise state what said record

contains. In this sense it stands preeminently in a class by itself,

being unlike perforated rolls, cylinders containing pins, metal

sheets, and other devices used in mechanical production of sound, and

is not to be likened in any manner to the raised characters used in

methods of printing for the blind, where by the sense of touch the

meaning is intended to be conveyed. The sense of touch is a mere

incident due to the disability of the blind, but it is perfectly

feasible and easy to read the characters with the eye, and they are

very properly the subject of copyright. I repeat, that to attempt to

decipher a phonograph disk is in the very nature of the proceeding

"reaching for the impossible." How utterly preposterous and ridiculous

it would be to pass this act in its present shape, which would make a

telegraphonic sound record, which is something that can not even be

seen--the record itself being caused by the magnetization and

demagnetization of an electric current of an ordinary piece of wire or

a cylinder or disk of steel--a violation of the copyright laws.

You have seen several examples, gentlemen, of methods of reproducing

sound. Mr. Cameron showed you yesterday the disk form of

talking-machine record. [Exhibiting disk.] That record, if you were to

examine it under a microscope, is an engraving of the sound, which is

produced by a method wherein the sound waves are engraved laterally at

a uniform depth.

Another form is the cylindrical record. Mark you, gentlemen, our

company is the only one on earth that manufactures both forms. We are

vitally interested in this legislation. In the cylindrical record the

cut is of uneven depth. It is an up-and-down cut.

There are other methods, and one or the most important discoveries of

the age--a discovery which was considered of so much importance that

at the St. Louis Exposition of 1904 it was given great prominence in

the Government exhibits--is the telegraphone.

I have here a record [exhibiting record] and I would like to ask Mr.

John Philip Sousa if he can recognize "The Stars and Stripes forever"

upon it. I would like Mr. Bowker, who stood up yesterday and said that

he could read the music roll--which I emphatically deny--whether he

recognizes an address of Mr. Victor Herbert upon this form of record

[exhibiting record]?

I doubt very much whether these persons who have come down here for

the purpose of putting through this legislation have ever seen this

thing. They do not know what it is, even. That is the sound record. I

do not know what it is. Nobody knows what it is until you put it on

the machine. Yet it can be reproduced indefinitely, and it can be

destroyed by that peculiar power which we know not, because no one

knows at the present time what electricity is. I want to tell you what

you are doing: When you pass this bill and make it a law, you make

that piece of steel copyrightable [indicating]. You make this record

spring copyrightable. You do not see anything on it. Look at it

closely. There is nothing but a magnetic current--an electric

current--by which the sound is actually recorded and can be reproduced

indefinitely. I regret, gentlemen, that I am not able to show you; and

I hope at the sessions of Congress, or during the recess, to

personally demonstrate what I am bringing to your notice this morning.

There is one other point I would like to bring to the attention of you

gentlemen, and that is this: That in the cylindrical form of talking

machine it is not necessary for the manufacturer to make the roll. In

every other mechanical instrument which has been referred to here the

process is a factory process; but, as I am speaking, the very words

that I am uttering are being taken down by Mr. Hanna, and in less time

than an hour these words will be transferred to a graphophonic record;

and by that means to-morrow morning you will get your printed record.

For fifteen years the reports of the House of Representatives and the

Senate of the United States have been prepared in this manner. And

now, when you make this bill a law I can not, notwithstanding the fact

that I have purchased a piece of music of Mr. Herbert, take that which

I have purchased and sing it into my machine at all. It is impossible

to do so. I wish to draw this fine distinction, and show you that in

the cylindrical form of talking machine it is not a mechanical

operation which is done in a factory, but that it is an instantaneous

form of photographing the voice. I would like to have a notation made

of that.

You have limited me as to time, but before closing I want to show you

what the practical operation of this bill would mean.

The CHAIRMAN. Your time has expired.

Mr. CROMELIN. May I have just one moment?

The CHAIRMAN. You may have one minute more.

Mr. CROMELIN. I would like to show you the point of the multiplicity

of royalties. Under this law I go down to John F. Ellis's and buy a

sheet of music composed by Mr. Victor Herbert. I pay the royalty at

the time that I buy that music. I am a singer and I want to sing it. I

go to a talking-machine company; but no, I do not dare. I must seek

Mr. Herbert. And he says: "You are going to make a big sum on it, and

you must pay me $25." I pay him $25, and I go to the talking-machine

company and the company does not dare to proceed. They must first seek

Mr. Herbert. Mr. Herbert says: "You are going to make a lot of money

out of this; I want $100 before you can make the record." We pay that

for the record.

I do not know when I get the record whether I am going to get a thing.

It goes through a factory process, which costs me another hundred

dollars, and then the record is made. I am about to announce the

record to the people of the United States, and to give them the

privilege of hearing it. What happens? No; I do not dare to do it.

Every American has to pay tribute to Mr. Herbert. Before I can sell

those records Mr. Herbert must get a royalty of 10 per cent on every

one of them. I do not believe it is the meaning of the Constitution to

do this.

Let us go one step further. At a recent banquet in Portland, Oreg., of

the "Ad. Men's Association," by arrangement with the telephone

company, over the seat of every person who participated in that

banquet there was a little horn attached to the telephone, and there

was a Columbia graphophone at the central office. But if this bill

becomes a law the telephone company would not dare do that. They would

not dare give the people in the country the privilege of an evening's

entertainment, where they can not get to the big cities, without first

arranging with Mr. Herbert. Mr. Herbert would say: "No; you can not do

this. I want a hundred dollars' profit before you do that." After you

have done it, everybody who pays a toll of 5 cents for an evening's

entertainment to the telephone company pays its tribute to Mr.

Herbert. I do not believe that that is the intention of you gentlemen.

I regret that I am so much limited as to time, and I hope to appear

before you during the summer session, as I believe that I can throw

some new light on the situation.

Mr. CURRIER. You gentlemen speak of the committee holding sessions

during the summer season. The House has no such authority. The members

of the House are likely to have a very busy season, and it will be

impossible to get the House committee here during the summer. But the

House committee will be here on the first Monday in December, ready to

hear you gentlemen.

Mr. CROMELIN. I thank you very much for your attention.

Mr. CHANEY. In the statement that you submit I would like to have you

make it specific as to which sections you object to, and make your

argument apply to those sections.

Mr. CROMELIN. I shall be glad to do that.

Senator SMOOT. And let it follow your remarks in the record?

Mr. CROMELIN. Yes, sir.

STATEMENT OF ALBERT H. WALKER, ESQ., OF NEW YORK.

Mr. WALKER. Gentlemen of the committee, I sincerely thank you for the

compliment implied in giving me an hour in which to express my views

upon this bill. The allowance is liberal, and it will not be extended

except at the request of the committee. My hour will be an hour of

sixty minutes, and my remarks will end at twenty minutes before 12, if

they end in the middle of a sentence.

I do not appear in behalf of any particular interest, although I have

one client which is interested in one section of the bill. I do not

propose, however, to address myself particularly to the interests of

that client. I do propose to address myself to the bill as a whole.

I think that the gentlemen who prepared this bill are to be thanked by

the committee, and by the people of the United States, and by

everybody else, for the large amount of labor which they have devoted

to the preparation of that proposition for legislation. I particularly

desire to express my personal appreciation of the labors of Mr.

Putnam--his entirely disinterested and very skillful labors in the

preparation of the bill.

We have had copyright laws in this country now for exactly one hundred

and sixteen years, and none of them have been scientific; none of them

have been systematic; none of them have been well developed. It is

high time that the whole system of legislation upon the subject should

be put upon a scientific basis and should be developed in a scientific

form. This bill is a sincere attempt to accomplish that result. It

contains a number of provisions which I heartily approve. It contains

much that I think ought to be amended. I trust that out of this bill,

and before the end of the present Congress, a bill will be evolved

which will be enacted into law, and which will be just as to all

parties and of very much benefit to the American people, and of

benefit to the composers and the authors, who are the particular

subjects of the bill. I believe, however, that before that result is

accomplished extensive amendments must be made in this bill.

I am going to devote the first ten minutes of my time to stating the

principles upon which I think those amendments ought to be framed, and

after that I am going to apply those principles to portions of the

bill, to show what changes would result from the application of those

principles to the bill. In order to say what I intend to say on the

subject of principles, it will be necessary for me to indulge in a few

moments of historical statement.

When the scholar looks over the civilizations of history, he finds

only one principle that pervades them all, and that principle is the

principle and idea of the continuity of private property. China,

Greece, Rome, Babylon, Nineveh, Judea, Egypt, England, Germany,

Russia, the United States are all pervaded, as Japan is, by the notion

of the continuity of private property. And when I speak of the

continuity of private property I mean its continuous continuity, its

hereditable character, its passing down from father to son, from age

to age, and from generation to generation.

My good friends Victor Herbert and John Philip Sousa, men whom I

respect personally as well as professionally, are basing their desire

for the passage of this bill upon the notion which they have that that

idea of the continuity of private property inheres in their

intellectual productions; and there is exactly where my brothers are

mistaken.

I am myself an author. I am an author of books and writings. A hundred

of them probably have been published. I am the author of a very large

number of addresses, which have been delivered without writing, on

religious, historical, economic, legal, scientific, and miscellaneous

subjects; but I know, as well as I know any proposition in history or

in law, that I have not any element of private property in any of

those intellectual productions, in the sense in which I am defining

private property, namely, with the idea of continuity.

Why is that so? It is so because from the foundation of the world

until now there never was a nation and there never was a day when the

idea of the continuity of private property was connected in the minds

of men with intellectual productions. England has developed the idea

of private property more fully than has any other nation; and England

never ascribed the idea of the continuity of private property to any

intellectual production, either for an invention or for a writing. To

this day no man has a right in England to a patent on an invention,

and never has had. The granting of any patent on an invention in

England is dependent entirely upon the pleasure of Edward the Seventh;

and the patents themselves, when granted, each one of them sets forth

that fact, and states that Edward the Seventh thinks on the whole that

it will benefit the realm to grant this patent, and proceeds to grant

it. But if Edward the Seventh and those who represent him choose to

decline to issue a patent in pursuance of any particular application

they can do so in entire conformity with the laws of England.

In respect to the protection of private property relevant to

intellectual productions in the domain of books or musical

compositions, this is the history in England: Prior to the time of

Milton nobody had a right to publish anything in England without the

permission of the Crown, and that permission was granted or refused,

not with reference to the deserts or the merits of the author or the

composer, but with reference to the opinion of the Crown as to whether

or not the published thing would be beneficial or not beneficial to

the public interests. And the Crown usually identified the public

interests with the interests of the Crown, so that it suppressed what

it desired to suppress and permitted to fly what it desired to be

published.

At the time of the Commonwealth publication became free and was free,

but there was still no notion of any exclusive right to publish a

particular literary or musical composition inhering in the author of

that composition; and that right never did begin and never was heard

of in England until the reign of Anne, when Parliament passed a

statute establishing such a right for a limited time.

In 1769 a copyright which had been issued under the statute of Anne

had expired, and the owner of that copyright determined to test the

question in the English courts as to whether or not there was a

perpetual right of copyright under the common law of England,

regardless of the statute of Anne, and the owners of that copyright

brought suit for its infringement after the term established by the

statute of Anne had expired; and the question whether such a

common-law right existed or not came before the court of king's bench

when Lord Mansfield was chief justice of that court. The court of

king's bench decided, as an academic proposition, that there had been

anciently an exclusive right to an intellectual production under the

laws of England. That was, however, a purely speculative statement.

They could not point to the time when anybody asserted any such right

or to an instance when anybody had acquiesced in it. They simply took

the ground, as an academic proposition, that anciently there had been

such a right. They also decided, however, that whether that right

existed or not, it had been ended by the statute of Anne, and that the

statute of Anne circumscribed the right to the limited time provided

for by that statute.

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 24 / 26 章

Section 4966 of the Revised Statutes should be repealed