From that decision or the court of king'_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.

to the House of Lords, sitting in its judicial capacity. We sometimes

have the notion that when the House of Lords sits in its judicial

capacity all the peers of the Realm--500 in number--assemble together

and hear the arguments and render a final decision, but it is not so.

Only the law lords participate; and if an ordinary nobleman should

venture to sit when the House of Lords was sitting in its judicial

capacity he would be hooted out of the room, and his presence would be

made to appear to him to be extremely unwelcome. The number of law

lords that sat at the time of the hearing of that argument was 11, and

6 of them rendered the opinion that the statute of Anne was the only

foundation known to the law of England for exclusive right to an

intellectual production, and that therefore the plaintiff was not

entitled to recover.

That was the situation of the laws of England at the time of the

foundation of our Union, at the time of the Declaration of

Independence, and at the time of the framing of our Constitution. In

1787 our Constitution was framed, and the fathers inserted in that

Constitution this provision:

The Congress shall have power to promote the progress of science

and the useful arts by securing, for limited times, to authors and

inventors, the exclusive right to their respective writings and

discoveries.

That is the only foundation that exists for the patent laws of the

United States, and it is the only foundation that exists for the

it is issued in accordance with the statute made in pursuance of that

Constitution is property, but it is not property in the historic sense

of property. It entirely lacks the notion of continuity. It entirely

lacks the notion of permanency. It is a species of property created,

and not arising out of the circumstances of civilization and human

life, as property in general has always done, long preceding

governments. It is a species of property created by the law-making

power, and a species of property created by the law-making power in a

matter not inherently subject to property right.

In creating that particular property the constitutional convention was

influenced by this consideration: We will not grant a permanent

property right in any intellectual production, because in our judgment

that would be inconsistent with the progress of civilization as a

whole, but we can consistently, with the progress of civilization as a

whole, grant a limited property right in an intellectual production.

Therefore they did provide in the Constitution that though Congress

might give to authors an exclusive right, the right must be limited in

point of duration, and therefore Congress has not the slightest power

to grant a permanent right in any intellectual production.

Victor Herbert may hereafter, as I hope he may, rival some of the

great composers of the past and produce music far better than the

splendid music that he has thus far produced, but if he does it will

be impossible for Congress to reward him and his heirs with a

permanent absolute property right in any such intellectual production.

The best we can do, Mr. Herbert, is to give you a limited right to

your intellectual production. That limited right is limited not only

in respect of duration, but it is limited in respect of quality, in

respect of formal expression, and it is limited thus: There shall be,

according to the constitutional provision, an exclusive right for a

limited time and for a limited form of expression, and that limited

form of expression is defined by the word "writings."

Mr. Chairman and gentlemen of the committee, I have spent my laborious

life as a lawyer, a scholar, an inventor, an author, and a lecturer. I

have delivered hundreds of addresses that never were reduced to

writing. I have delivered but few that were. In so far as I delivered

those lectures that were never reduced to writing, I am not entitled,

either by law or by ethical principles, to any exclusive right. I am

entitled to an exclusive right to my intellectual productions only

when I reduce them to writing and file them in the office of the

Librarian of Congress, where they will remain a permanent monument,

and can be handed down to future times and can be read and availed of

by my contemporaries.

The Constitutional Convention wisely provided that if the American

people are to grant a monopoly in an intellectual production the man

who makes that intellectual production shall give it to the American

people; and he gives it to the American people by first furnishing

them the fullest information of its character, in the case of a

patent, or in the case of a copyright he gives it to the American

people by consenting to the terms upon which it was issued, namely,

that it shall be free after the expiration of the limited time for

which it was granted. Further than that, in taking out a copyright, or

in taking out a patent, the man consents that the copyright shall be

confined to his writing, and shall not extend to any other form of

expression of his intellectual idea.

I am not alone in this. The Supreme Court of the United States is with

me.

Mr. CHANEY. Just a moment: It has not occurred to me that this is not

either a question of continuity of property or a question of the

quality of the property. It is simply a question of just to what

extent people are to be given the control of their own writings, and

as to just through what different forms they will be able to trace

their property.

Mr. WALKER. That is the question, and that is the exact question which

I am going to address myself to now.

Mr. CHANEY. Very well.

Mr. WALKER. The case of the "Trade-Mark Cases" was decided by the

Supreme Court of the United States in 1880, and it is reported in 100

United States Reports, at page 94. In that case the owners of certain

collocations of words which they were using as trade-marks sought to

sustain the validity of their trade-mark under the copyright law,

holding that those words constituted writings which were copyrightable

and which had been copyrighted.

The Supreme Court unanimously decided that the statute which they

invoked, which statute was abundantly broad enough to cover that

provision, was unconstitutional, because although these collocations

of words were writings in the literal sense they were not writings

within the sense of the Constitution. In so deciding, the Supreme

Court narrowed down the meaning of the word "writings" instead of

extending it, by holding that the Constitution gives a monopoly not to

writings in general but only to such writings as have some literary

character and permanent value in themselves. This is the language of

Justice Miller:

And while the word writings may be liberally construed, as it has

been, to include original designs for engravings, prints, etc., it

is only such as are original and are founded in the creative powers

of the mind. The writings which are to be protected are the fruits

of intellectual labor, embodied in the form of books, prints,

engravings, and the like.

The case which the Supreme Court had before it on this subject next is

the Sarony case, decided in 1883, and reported in 111 U.S., page 58.

Mr. CHANEY. We had that yesterday.

Mr. WALKER. In that case Mr. Sarony sought to sustain the validity of

a copyright upon a photograph of that then very ornamental gentleman,

Oscar Wilde. It turned out that in this picture which Mr. Sarony

personally took of Oscar Wilde, in his esthetic costume at the time he

captured the hearts of the American women by his highly ornamental

appearance [laughter], Mr. Sarony had personally posed Oscar Wilde, so

as to give him a peculiar beauty, which might not have been developed

by the ordinary photographer; and the Supreme Court of the United

States sustained the validity of that particular copyright upon the

particular ground that Mr. Sarony put particular skill in the posing

of the man so as to produce a particularly artistic effect.

But if I should go into a photograph gallery and have somebody pose me

who did not have that skill--and also because the subject would not

admit of it, and would not produce any particularly attractive

effect--and the attempt should be made to copyright that photograph,

he would go right up against the decision of the Supreme Court in the

Sarony case, and he would be told that the copyright was invalid,

because it did not involve any intellectual effort in its production.

Mr. CHANEY. I think your picture would influence the committee quite

as much as Oscar Wilde's. [Laughter.]

Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for

himself; and I am living still.

Mr. CHANEY. I hope you will live long, sir.

Mr. WALKER. Thank you.

The next case, and the last case in which these matters have been

before the Supreme Court, is the case of Higgins _v._ Keuffel, decided

by that tribunal in the October term of 1890, and reported in 140 U.S.

In that case a copyright had been issued, in strict conformity with

the copyright law of 1874, upon a label used for manufacturing

purposes, as a label on a bottle or a package. There was no doubt

whatever but what the copyright was in strict conformity with the

statute, but the Supreme Court held that the statute was

unconstitutional, because although the label was a writing, it was not

a writing in the sense that the Supreme Court had defined that word in

the Trade-Mark cases. Here Justice Field delivered the opinion of the

court, and he said:

The clause of the Constitution under which Congress is authorized

to legislate for the protection of authors and inventors is

contained in the eighth section of Article 1, which declares that

"the Congress shall have power to promote the progress of science

and useful arts by securing for limited times to authors and

inventors the exclusive right to their respective writings and

discoveries."

This provision evidently has reference only to such writings and

discoveries as are the result of intellectual labor. It was so held

in the Trade-Mark cases, where the court said that "while the word

'writing' may be liberally construed, as it has been, to include

original designs for engravings, prints, etc., it is only such as

are original and are founded in the creative powers of the mind."

In the year 1888, a suit was brought in the United States circuit

court for the eastern district of Massachusetts for the purpose of

subjecting a perforated roll like one of these [exhibiting] to the

domain of a copyright upon a sheet of music which had been lawfully

and regularly copyrighted. That case was elaborately litigated, and

was the subject of argument on both sides before his honor, Judge

Colt, then the circuit judge and now the chief judge of the circuit

court of appeals for the first judicial circuit.

Judge Colt in that case, commonly called the McTamanny case, gave an

elaborate and learned decision to the effect that this perforated

paper roll, or any sheet of perforated paper like it, intended for the

mechanical reproduction of a tune, did not infringe a copyright upon

the tune thus reproduced.

That was in 1888, and that decision was universally acquiesced in by

all the judges and all the people of the United States for thirteen

years. During that thirteen years a number of gentlemen devoted

themselves to making the machines, pianolas, or whatnot, that are

capable of being used with these perforated sheets; and among those

gentlemen is the modest and excellent inventor, Mr. Davis, who

appeared before the committee yesterday. Those men proceeded in full

reliance upon the decision of Judge Colt, acquiesced in by everybody

that they had a perfect right to perforate those sheets of music and

use them in mechanical playing instruments; and great amounts of

ingenuity have been devoted to the development of that particular art,

and large amounts of capital have been devoted to it, in full reliance

upon the decision of Judge Colt, in which everybody acquiesced. But

the Æolian Company, of Meriden, Conn.--and in the statement that I am

about to make I am going to state what is true; I can not prove the

statements here to-day, but I could prove them if the committee should

sit and take testimony and send for persons and papers----

Senator SMOOT. You can file the proof, can you not, Mr. Walker?

Mr. WALKER. It would be like a big litigation to do so, and it would

be putting a very heavy expense upon me that I would hardly be called

upon to bear. But I can tell you how I know.

Mr. CURRIER. If the statements that you are to make now are not true,

gentlemen can controvert them.

Mr. WALKER. Certainly. They have had chances to controvert them

heretofore. This is not the first time that I am making these

statements in public. I have made them in court over and over again,

and they have passed entirely unchallenged, because they are perfectly

true.

The Æolian Company made certain contracts with a large number of

members, and I think with every one of the members of the Musical

Publishers' Association----

Mr. BURKAN. I beg to deny that----

Mr. CURRIER. Later on you can be heard, if you wish.

Mr. WALKER. A gentleman showed me one of the contracts to-day, and I

have it in my pocket.

Mr. BURKAN. It was the one offered in evidence.

Mr. WALKER. I can not be interrupted. I am telling what I know to be

true.

The CHAIRMAN. You shall not be interrupted, Mr. Walker.

Mr. WALKER. Thank you. The Æolian Company made contracts with nearly

all or all of the members of the Musical Publishers' Association. Each

of those contracts provided as follows: That the particular member of

the Music Publishers' Association granted to the Æolian Company the

exclusive right to make perforated sheets of paper to play the tunes

represented by all of the music published by that particular

publisher; and that contract also provided that the Æolian Company

should never pay any money for that exclusive right until the Æolian

Company succeeded in getting some court to decide that the copyright

laws covered the perforated paper roll. That contract also provided

that the Æolian Company should pay all the expenses of some test suit

made for the purpose of testing that question.

In pursuance of that contract, the Æolian Company caused the

White-Smith Music Publishing Company to bring a suit against the

Apollo Company, in the southern district of New York, upon a couple of

little negro melodies, one of which was entitled "Little Cotton Dolly"

and the other of which was entitled "The Kentucky Babe Schottische." I

fancy that the copyright on both those negro melodies was not worth as

much as a dollar and a half, and that certainly $3 would cover the

value of both of them; but they answered the purpose of a test case.

The Æolian Company poured out money like water in that litigation, and

endeavored to secure from the United States courts a reversal of the

decision of Judge Colt, which had been made many years before. In the

course of that litigation I was retained by the Automusic Perforating

Company, which was not a party to this litigation, but which had an

interest a hundred times greater than that of the nominal defendant.

In pursuance of that retainer I presented a petition to Judge Hazel,

before whom the case was heard, and in that petition I asked that my

client be made a defendant. And I set forth in that petition the whole

Æolian scheme in full, with all the clearness of statement of which I

was capable, and it was sworn to by my client.

When that statement was filed before the judge, a printed copy was

served upon the attorney for the Æolian Company, Mr. Charles E.

Hughes, one of the ablest men in the United States, who has

distinguished himself in the recent insurance investigation in New

York. Anything that he does not think of is not likely to be worth

thinking of, and when he put in, as he did, an elaborate brief in

reply to my petition, he did not controvert one solitary word of the

statement of evidence set forth in the petition about the inherent

character of the Æolian scheme, which he would have done if he could

have done so.

The CHAIRMAN. What was his reply--raising questions of law?

Mr. WALKER. I do not think his reply amounted to a row of pins.

The CHAIRMAN. Is that a matter of printed record?

Mr. WALKER. His reply? I have a copy of his brief in my office in New

York.

The CHAIRMAN. Will you send that to the committee?

Mr. WALKER. I will; yes.

Senator CLAPP. And your petition?

Mr. WALKER. Yes.

Mr. SULZER. He raised the question of jurisdiction in his reply, did

he not?

Mr. WALKER. No; not at all.

Mr. SULZER. What was his reply, if you remember?

Mr. WALKER. I would rather not tell, because I do not think it is

particularly creditable to Mr. Hughes.

Mr. SULZER. You just complimented him very highly.

Mr. WALKER. And I do not desire to deduct anything from that

compliment.

Mr. BONYNGE. You are going to file a copy of it, are you not?

Mr. WALKER. Yes; but my time is limited, and if I gave the honorable

gentleman from New York an account of that it would take me ten

minutes to do so.

The CHAIRMAN. You will have an opportunity to inspect his reply and

that petition when we have the records here.

Mr. WALKER. Now, let me tell you the rest of the story. His reply did

not contain a word controverting my statements of fact in the

petition. He did not take any issue with the statements of fact in the

petition at all--not the slightest. But so far as his reply contained

any matter at all, it was first of all an attempt to show that my

client was not entitled to be admitted as a defendant anyway, and

that, if I was entitled to be heard, he took the ground that my

argument was not very conclusive. He did not reflect upon the petition

at all; his reply applied entirely to my argument.

Judge Hazel afterwards overruled the petition, and the same day that

he overruled the petition he decided the case in favor of the

defendant, and followed my brief in his decision. So that the

intellectual origin of Judge Hazel's decision can be traced back to

the brief that I filed in pursuance of the petition which he

overruled.

Very well. The Æolian people then caused that case to be appealed to

the circuit court of appeals. When the case came up there I filed a

petition in that court to be permitted to argue the case on behalf of

the defendant, and also file a brief, both of which petitions were

granted. In that petition I repeated the whole Æolian story over

again, and I served a copy of that petition on Mr. Hughes a week

before the argument came up, and he had abundant opportunity to reply

to it. I also called him up and asked him if he was going to reply to

it, and he said "No." And when he came to the argument he was as

silent as the grave; though he had nearly two hours for his speech, he

was as silent as was the grave in respect to all the allegations I had

made about the inherent character of the Æolian scheme, and confined

himself entirely to attempting to persuade the court that a perforated

paper roll was an infringement of sheet music, and that however

unconscientious the Æolian scheme might be as the representative of

the Æolian company it was entitled to the pound of flesh.

And that was the way he met the second presentation of the Æolian

scheme. Afterwards, two weeks ago yesterday, the circuit court of

appeals for the second circuit decided against him again.

Mr. BONYNGE. How long ago?

Mr. WALKER. Two weeks ago yesterday.

Mr. CURRIER. The decision is in the record already.

Mr. WALKER. Certainly.

Now, I wish to say this to the committee, that that Æolian scheme is

the most ingenious scheme that I ever knew to be invented by anybody

in this country for the purpose of acquiring wealth by means of a

patent or a copyright monopoly. And, further than that, I wish to say

that the Æolian scheme is so ingenious that it does not violate any

law whatever except one, and that is the golden rule. You can not

square the Æolian scheme with the Sermon on the Mount, but you can

square it with the Sherman antitrust act, and you can square it with

every statute on the statute books. They have dodged a violation of

every statute in inventing their scheme. And now they lack nothing at

all to consummate their scheme except for Congress to pass this bill

in the form in which it is drawn. That will place the capstone upon

the monument, and will give to the Æolian Company a million of dollars

a year out of the pockets of the people of the United States. And of

that million of dollars they will keep at least $900,000, and about

$90,000 of the rest will go to the music publishers, and not one cent

over $10,000 of the whole million will go into the pockets of any

music composers during their natural lives.

In the nature of the case it must be so. My statements are not based

alone upon any special contracts or facts; but as long as human nature

remains as it is, as long as the business problem involved in

mechanical playing instruments remains as it is, it must be true that

a proposition, if enacted and enforced, to subject perforated music

rolls to copyright protection will enormously burden the American

people for the benefit of corporations and middlemen, and only very

slightly for the benefit of musical composers.

These distinguished gentlemen--Mr. Herbert and Mr. Sousa--are so

distinguished that they can make their own terms, and this bill would

enrich them. I do not see that they need to be enriched. I believe

that these gentlemen, for amusing the American people, are each one of

them receiving more money than Theodore Roosevelt is receiving for

regulating the affairs of mankind. [Laughter.] And I myself have

contributed many a dollar to their coffers, and I have always obtained

full value therefor. I have had the pleasure of listening to two of

their operas lately, and if any of you gentlemen get a chance to hear

one of them I hope you will not miss it, because it is worth the

price.

But this business problem that I am expounding is one of great

complexity, and while the result of many years of experience with this

general topic and the result of many months of special investigation

of this subject convinces me that all my statements as to how the

thing must work are correct, I can not, in any brief period of time,

prove these statements to be true by depositions or testimony of

witnesses.

Mr. CHANEY. Can you give us an illustration of the respect in which

the mere copyrighting of the music roll will do all that?

Mr. WALKER. Yes; I can. I think I can do it in three or four minutes.

The music that the American people want to play now is made up of two

kinds--classic music, uncopyrighted music, and the current music that

comes out. Now, if this scheme were carried out the Æolian people

would have the exclusive right to perforate paper rolls in accordance

with all the current music covered by their contracts with the music

publishers; and those contracts cover at least nine-tenths of all the

music being produced month by month and year by year.

Now, inasmuch as the Æolian Company would have the exclusive right to

perforate sheets for half the music that the people want, nobody could

sell a music-playing instrument unless it was manufactured by the

Æolian Company, because the Æolian Company as a part of their policy

would refuse to sell their perforated sheets except for use in

connection with their own instruments; and this would be the

situation: You want to buy a pianola. You go to New York and call on

the Æolian people. They say: "We will sell you a pianola, and if you

buy it from us you can use it to play any tune known to man, classical

or modern. Go over to our neighbor across the street, and he will sell

you a pianola, too, but he can only sell you music rolls to represent

classic music and uncopyrighted music. If you are contented with

Beethoven and Mozart and the masters, and do not care for Sousa and

Victor Herbert and their contemporaries, go across the street and buy

your pianola. But if you want a pianola that will enable you to play

any copyrighted music at all, you must buy it from us; for there is

not another party in the United States that can sell you one of those

machines."

So that the passage and enforcement of this bill would practically

give the Æolian Company, of Meriden, Conn., a permanent patent on an

old machine, namely, the automatically played piano, and all other

musical instruments played by perforated paper roll.

I assure you, gentlemen, that this bill must in the nature of the case

have that operation. So that the moment that the Congress passes that

bill, if it were to be enforced by the courts afterwards, Congress

would be giving to the Æolian Company, of Meriden, Conn., a permanent

patent on that great industry, without those people ever having

invented a solitary part of the origin of the business, and without

ever having composed a single piece of music played in their machines.

The CHAIRMAN. Mr. Walker, had you intended to speak specifically about

the provisions of this bill?

Mr. WALKER. I had, but I have been interrupted so much that I have not

been able to do so up to this point. Now I am going to devote myself

entirely to that.

The CHAIRMAN. You have only twenty-five minutes.

Mr. WALKER. I realize that.

Mr. CHANEY. You were going to speak of the constitutionality of the

bill, also.

Mr. WALKER. That is what I am going to take up now.

The Constitution provides that copyrights may be granted on writings.

This bill provides that copyrights may be granted on works. The fourth

section of this bill reads as follows:

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

shall include all the works of an author.

Although this bill purports to be founded on the Constitution, and

although the Constitution is confined to the word "writings," that

word "writings" does not appear among the 8,000 words of that bill. It

is not there once. This bill is based upon the theory that Congress

has power to grant an exclusive right to works, and the word "works"

is used more than 30 times where the word "writings" ought to have

been used, and the word "writings" is not printed in that bill from

its beginning to its end.

I am not reflecting upon any gentleman who drafted the bill in that

way, because the bill was drawn upon the theory that the Constitution

justifies copyright upon an author's works. Now, the word "works"

includes "writings" and is far more comprehensive than "writings."

Take the case of Theodore Roosevelt. He has published and printed 15

volumes of original works, and he has delivered without writing more

than 1,500 speeches. Now, those books that he has printed and those

speeches that he has delivered are equally his works, but they are not

equally his writings, because he never has reduced those speeches to

writing. So that there is a plain distinction between works and

writings, and that distinction is recognized in this bill, as follows.

(Now I will devote myself for the rest of the time to strict analysis.)

SEC. 4. That the works for which copyright may be secured

under this act shall include all the works of an author.

Then twelve classes of works are enumerated. The third of those

classes of works is said to be "oral lectures, sermons, and

addresses." Now, those productions come under the head of works, and

do not come under the head of writings, confessedly.

Mr. BONYNGE. But they could not be copyrighted until they were reduced

to writing, could they?

Mr. WALKER. Yes; they could, under this bill.

Mr. BONYNGE. How?

Mr. CURRIER. What would you file in the copyright office?

Mr. WALKER. You do not have to file anything for a year.

Mr. CURRIER. I know that; but you have got to file something then.

Mr. WALKER. But you get a year's copyright without ever doing that,

and this bill would give a man a monopoly of a whole year on a speech

never reduced to writing, and that is a "limited time." And if he

chooses ever to reduce it to writing, then all he has got to do is to

file one copy in the office of the Library of Congress and not publish

it at all.

Mr. CHANEY. Well, you must remember that we must confine this to

copyrighted matter.

Mr. WALKER. You must confine it quite narrowly, I think; but please

let me develop my particular thought.

It is perfectly plain that under this bill a man may have a copyright

on an oral sermon, lecture, or address and maintain that copyright for

a whole year without that discourse ever being even put into

typewriting during that period. That is a perfectly plain case,

therefore, of copyrighting a work that is not a writing.

Now, come down to subsection G, "works of art." There is another item.

Now, that word is much broader than "writings." I have made a good

many works of art myself. Everybody that invents a complicated machine

produces a work of art and a work of high art. There are a great many

works of art here in this room which could not by any possible strain

of language be denominated "writings." There is a perfectly plain case

of attempting to copyright, under this statute, a work which is not

also a writing.

Mr. CURRIER. What change would you suggest in subsection G?

Mr. WALKER. I have formulated such a change as that, but it would take

a little time to explain it.

Mr. CURRIER. Very well. Take your own course.

Mr. WALKER. I am very glad to be at the disposal of the committee, but

it would take me five minutes to explain. It is a very important

point.

Subsection H covers "Reproductions of a work of art." There is a

perfectly flagrant case of attempting to copyright not only a thing

that is not necessarily a writing, but also a thing that is not even

original; whereas the Supreme Court has told us over and over again

that nothing can be copyrighted that is not original.

Now, go over to the next page, page 4, Class L:

Labels and prints relating to articles of manufacture, as

heretofore registered in the Patent Office under the act of June

18, 1874.

That was the very act that the Supreme Court held fifteen years ago

was unconstitutional as not authorizing copyright on things which are

not writings. So that there is a recommendation to this committee to

reenact a law that the Supreme Court has expressly held to be

unconstitutional.

Now, come, if you please, to the second page of this bill. The first

section of this bill enumerates exclusive rights to be covered by

To deliver, or authorize the delivery of, in public for profit,

any copyrighted lecture, sermon, address, or similar production

prepared for oral delivery.

Mr. CAMPBELL. What page is that?

Mr. WALKER. The top of page 2.

Senator SMOOT. Subdivision C.

Mr. WALKER. (Reading):

To deliver, or authorize the delivery of, in public for profit, any

copyrighted lecture, sermon, address, or similar production

prepared for oral delivery.

A lecture could be copyrighted under this statute without any copy

ever being put even into typewriting, as I stated a little while ago,

and that copyright could be maintained for a year, when the discourse

has no existence whatever except in the mind of the man who delivers

it, and in the ears of those who heard it, and in the air that

transmitted it from the vocal organs of the lecturer.

D--To publicly perform or represent a copyrighted dramatic work.

Section 4966 of the Revised Statutes covers that ground already, and

provides that copyright may cover the performance of dramatic work.

But I hold, and I hold without the slightest hesitation, that that

whole section 4966 is unconstitutional. No court has ever held it to

be constitutional, and any attempt on the part of Congress to grant a

stage is preposterous. The fathers who went to Philadelphia in 1787

had more weighty business on hand than to give to playwrights an added

grip on the monopoly of their productions in addition to the

common-law grip that they already had. At that time and now the author

of a play is abundantly protected under the common law, but Congress

in 1870 provided an additional grip for the playwright under the

under which they were acting was confined to writings. But if I do not

remember wrongly (and I think the gentleman from North Carolina will

agree with my recollection) about 1870 Congress did several things

that could not be fully vindicated under the Constitution.

Mr. WEBB. Yes.

The CHAIRMAN. Mr. Walker, have you in mind the exact language of the

Constitution?

Mr. WALKER. Certainly.

The CHAIRMAN. Will you not put it on the record at this point?

Mr. WALKER. "Congress shall have power to promote the progress of

science and the useful arts by securing for limited times to authors

and inventors the exclusive right to their respective writings and

discoveries."

"F. To publicly perform a copyrighted musical work, or any part

thereof."

Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and

I would like to ask Mr. Victor Herbert whether, during the last few

years, he has with his orchestra performed copyrighted music of other

composers, of which copyrighted music he purchased and had the sheets

there for the performance?

Mr. HERBERT. With their permission.

Mr. WALKER. Did you get any other permission than the purchase of the

sheets?

Mr. HERBERT. That is included.

Mr. WALKER. Did you get any special permission to perform?

Mr. HERBERT. The permission is written on the sheet.

Mr. WALKER. What is written on the sheet?

Mr. HERBERT. Permission for performance.

Mr. WALKER. It is on the sheet, is it?

Mr. HERBERT. Yes.

Mr. WALKER. In all cases?

Mr. HERBERT. That is, on the corner of the sheets--"permission to

perform."

Mr. WALKER. Very well, if in his case it is there. But this is the

situation of the law at the present time: If one of you gentlemen goes

to church and joins in the singing of a hymn that is the subject of a

join in that singing, and a penalty of $50 for every subsequent time,

unless you yourself bought that particular hymn book at first hand

from the publisher. That is the law now.

Mr. SULZER. Suppose the church bought it?

Mr. WALKER. Then you are liable for the penalty.

Now, that section 4966 has been violated more than a million times

since Congress enacted it in 1897, and Congress does not notice the

difference; and I take it that it has taken no steps to vindicate its

dignity.

Mr. BONYNGE. There is a bill pending before our committee on that

proposition.

Mr. WALKER. Yes; I understand about that pending bill, but I am

speaking of the law as it now exists. So that, gentlemen, I take the

ground that any legislation that gives to the composer of any music

the exclusive right to publicly perform that music is outside of the

Constitution, because a copyright on a writing can be infringed only

by writing; and when some gentleman or some lady stands up in a church

and sings a song out of his or her mind he or she is not doing

anything about any writing.

Clause G is one to which I direct attention. That clause G is the one

that is directed against all music-playing instruments. The gentleman

who preceded me did not make entirely clear the nature of this

beautiful instrument that he showed the committee, which he stated was

capable of rendering music. What he showed to the committee was a

perfectly plain steel cylinder. When you look at it you can see no----

Mr. CURRIER. Most members of both committees are perfectly familiar

with that instrument.

Mr. WALKER. Very well; I am very glad to hear that. There are a very

great many persons who are not.

Mr. CURRIER. That instrument was exhibited before the House committees

in the Fifty-seventh Congress.

Mr. WALKER. Oh, yes--then you know all about it. There are a great

many gentlemen who have not been informed about it, and I thought I

would mention it.

Aside from the matters of constitutional consideration--I have twelve

minutes left, and during those twelve minutes I wish to devote myself

to some criticisms of this bill which have nothing to do with the

constitutional questions that I have been discussing. Those criticisms

are equally applicable whether the bill is to be framed and enacted on

the basis of "works," or whether it is to be framed and enacted on the

basis of "writings." And in any view that anybody may take about the

scope of the copyright, the criticisms to which I am now calling

attention deserve consideration.

The first one is in section 13, which is one of those sections that is

intended to give the American manufacturer the monopoly of

manufacturing copyrighted books.

That purpose is a good one, but that section is not well drawn to

effect that purpose, because the gentlemen who drew the section were

not thoroughly acquainted with the art of printing in its modern

development; and the suggestions I have to make to the committee are

with a view to strengthening that section so as to close up some

loopholes that the authors of the section left wide open.

The language is:

That of a printed book or periodical the text of the copies

deposited under section 11 above shall be printed from type set

within the limits of the United States, either by hand or by the

aid of any kind of typesetting machine, or from plates made from

type set within the limits of the United States, or if the text be

produced by lithographic process, then by a process wholly

performed within the limits of the United States.

The trouble there is that the author of that section supposed that the

lithographic process was the only other process of producing a book

besides printing it from type or a streotyped plate. Now, the

lithographic process is not the only process. There are modern

processes of photomechanical printing that have nothing at all to do

with lithography, that are much cheaper than lithography, and that do

all that lithography does. As an illustration, those beautiful

illustrated supplements that come out every week with the New York

Tribune on Sunday are supposed by some gentlemen to be lithographs.

They are not. They are printed on aluminum cylinders at great speed

and with great cheapness, and they are very much cheaper and very much

better than can be done by the old art of lithography.

Mr. CURRIER. Could not that be said to be a plate within the meaning

of this act?

Mr. WALKER. No; because a stereotype plate is meant. But that is very

easily corrected. I would suggest that for the words "by lithographic

process" be substituted "any other process." Then that covers

lithography and every other possible process. Then, on the 21st line

of that page, I would suggest the substitution of "illustrations" for

"lithographs," because illustrations may be made otherwise than by

lithography.

The gentleman who delivered himself upon that particular subject upon

behalf of the American mechanic was uninformed about the matter, and

complained that a large number of printed illustrations were being

imported into this country that would be kept out under the

lithographic clause if you put the lithographic clause in strong

enough. Now, he is entirely mistaken about that, because the very

things that are being imported and that he complains of are not made

by lithography at all, but by another process.

Section 15 contains a provision as to what shall happen if the

copyrighter does not deposit his copies in the office of the Librarian

of Congress on time; and there is a proviso in lines 19, 20, and 21

which reads:

That in such case no action shall be brought for infringement of

the copyright until such requirements have been fully complied

with.

That ought to be amended by adding the words "or be based on any

infringement begun before the time of that compliance," because

otherwise the public would have no protection at all. A man could go

on and innocently infringe during that year, and the only protection

this section gives him is that he would not be sued until after the

end of the year, but when sued the action would be retroactive; and

that amendment ought to go in to perfect the section.

Section 18 relates to the duration of copyright. Gentlemen, that is a

topic to which I have given great consideration, and I can do no more

than state my opinion. I should like to elaborate it, but what I would

recommend the committee to adopt on that subject is this very short

provision: That the copyrights secured by this act shall endure for a

hundred years in the case of an original book or dramatic or musical

composition (one hundred years, Mr. Herbert, I liberally advocate in

your behalf) and for fifty years in every other case.

I am totally opposed to any law providing for the extension of any

comes out and when the patent comes out, exactly when it is going to

expire; and it ought not to be made contingent upon anything so

uncertain as human life. On the other hand, there is every reason in

favor of giving the copyrighter a very long period of monopoly.

Seventeen years is long enough for the patentee. I am a patentee

myself. I would be very glad indeed to have Congress extend some of my

patents, but I have not the effrontery to ask Congress to do it,

because I do not deserve it.

Mr. CURRIER. Do you think a hundred years is a limited time within the

meaning of the Constitution?

Mr. WALKER. Oh, yes; certainly. A thousand would be. [Laughter.] And I

wish to make this suggestion: It was suggested to me that the word

"limited" meant definitely limited, and that therefore Congress would

not be conforming to the Constitution if it made the period dependent

upon any uncertain contingency. Now there is some force in that.

Mr. SULZER. I agree with you, Mr. Walker, upon making the number of

years definite; whether you make the years few or many, make them

definite. Now, right there, without any intention to be facetious, do

you not think that fifty years is sufficient?

Mr. WALKER. No; and I will tell you why. Harriet Beecher Stowe wrote

"Uncle Tom's Cabin" in 1853. She got a copyright on it for

twenty-eight years, then an extension of fourteen years, and at the

end of that time, in 1895, the copyright expired. Harriet Beecher

Stowe then was dead--died in 1896--but she left two maiden daughters;

and it would be a comfort to me, and it would be a comfort to all

those who honor the memory of Harriet Beecher Stowe, if those two

ladies could now be in the receipt of some royalty from "Uncle Tom's

Cabin," which they can not be.

Mr. SULZER. Is there any government that grants a patent or copyright

for more than fifty years that you know of?

Mr. WALKER. Not that I know of. Fifty years would be altogether

excessive for any patent. The longest period that could possibly be

vindicated by argument for a patent would be twenty years.

Mr. BONYNGE. How about copyright?

Mr. WALKER. I wish I could argue the matter; but I hold that all

original works ought to be copyrighted for a hundred years, and all

derivative works, such as dictionaries and encyclopedias, for fifty.

Mr. BONYNGE. What is the longest period granted by any government,

that you recall, for a copyright?

Mr. WALKER. I can not speak as to that with certainty.

Mr. SULZER. Fifty years?

Mr. WALKER. The nations are numerous.

Now, I must come to another point, section 23, in respect of the

damages that may be recovered. Section 23 begins as follows:

That if any person shall infringe the copyright in any work

protected under the copyright laws of the United States by doing or

causing to be done, without the consent of the copyright proprietor

first obtained in writing, any act the exclusive right to do or

authorize which is by such laws reserved to such proprietor, etc.

The trouble with that is that it makes the man who does the thing an

absolute infringer unless he can show a consent in writing; and that

repels the whole doctrine of implied licenses and equitable estoppel,

which two doctrines are found to be absolutely indispensable to the

administration of justice in patent cases, and heretofore in copyright

cases. The idea that there can be no answer to an infringement suit for

a copyright except a written license is new in this statute. It has

never been in any copyright law before, and it would work havoc with

justice, because it would enable the wilfully malicious copyrighters to

mislead men into unwitting infringement, and then pounce on them with

an infringement suit, and then, when they set up equitable estoppel or

an implied license, say, "Equitable estoppel and implied license do not

go in this statute. You must show a written license." Words can not

express how badly that would work.

Again, in subdivision B, this man is--

to pay to the copyright proprietor such damages as the copyright

proprietor may have suffered due to the infringement, as well as

all the profits which the infringer may have made from such

infringement.

That is wrong, because it gives him two recoveries; and in patent cases

the courts have established for more than a quarter of a century that

the patentee is entitled to a recovery of profits or damages, whichever

he prefers, but is not entitled to recover both. No proposition has

ever been made, in any statute, to give anybody a double recovery until

it is made here; and here he is told that he shall have both. And what

is worse, down at the bottom there of the subsection, if it turns out

that there were no damages inflicted and no profits made, then the

provision is that the judge shall fix the damages at such a sum as he

finds to be just; and then, after the judge is told to exercise his

discretion to fix a just sum, he is told that that sum must not be less

than $250.

On page 18, among the evils and misfortunes that are to be inflicted

upon the unwitting infringer as well as the willful infringer, is the

following. He must--

deliver up on oath, to be impounded during the pendency of action,

upon such terms and conditions as the court may prescribe, all

goods alleged to infringe a copyright.

So that if anybody wants to drive his competitor out of business, all

he has to do is to file a bill alleging that the competing goods

infringe, and he does not even have to swear to that; and then, in

pursuance of that bill, all the property of that alleged infringer is

impounded during the course of the litigation. And it would be a very

dull complainant that could not keep the litigation going at least five

years, and to that extent eliminate competition.

The next one is wickeder still. The infringer must--

deliver up on oath for destruction all the infringing copies or

devices, etc.

Here is a case of an unwitting infringer. He is found to infringe. He

thought he did not infringe. Good lawyers told him he did not. The

court finally found that he did, and there, among the penalties, all

his goods must be delivered up for destruction. Now, that is entirely

wrong. The courts have decided in patent cases that under precisely

those circumstances the defendant has a right to export his goods and

sell them in foreign countries; and there is no ethical and no legal

reason why an unwitting infringer of a copyright, after having been

found to infringe in this country, should not export his goods and sell

them elsewhere. And the circuit court of appeals for the second circuit

has unanimously decided, in patent cases, that that is perfectly right.

Mr. WEBB. Not only the copyrighted goods, but the machines themselves.

Mr. WALKER. I will come to the other point--certainly; and he must not

only have those destroyed, but the "plates, molds, matrices, or other

means of making such infringing copies."

My client, the Automusic Perforating Company, has a plant that cost

$50,000. That mechanism is adapted to perforating rolls, and if they

should use that mechanism in perforating 500 rolls with perfect right,

and then inadvertently use that mechanism in perforating one roll that

was held to infringe, under this bill their whole plant would be

cleared out of their place and would be destroyed.

Gentlemen, that is so surprising a proposition that I presume it may

be of interest to know the origin of it. The patent laws of England

provide that, at the discretion of the court, infringing material may

be destroyed. That is because the Parliament of England is not subject

to any constitutional limitations, and can pass any kind of a law that

it pleases. Mr. Justice Gray knew more about the laws of England than

he did about the laws of America; and at one time, one of the two

times when he was deciding a patent case while he was on the bench, he

ran across an English decision in which it was held that the

infringing goods might be destroyed. And then, by way of obiter

dictum, without having the slightest occasion to do so, he wrote into

the decision an obiter dictum to the effect that that was the law of

this country. But the judges of the circuit courts know better, and

never have enforced that obiter dictum. And if they were to enforce it

they would violate two or three provisions of the Constitution, among

others that no person shall be deprived of property without due

process of law.

But the authors of this provision, taking the hint from that obiter

dictum of Justice Gray, have not only applied it to the same matter

that Judge Gray applied it to, namely, the infringing thing itself,

but to the entire plant of the infringer.

(At this point it was announced that Mr. Walker's time was up.)

Mr. WALKER. I promised to stop at the end of an hour, and I will do

so.

The CHAIRMAN. Can you finish what you desire to say regarding the

provisions of this bill in five minutes additional?

Mr. WALKER. Well, I can talk five minutes; I ought to have ten.

[Laughter.]

The CHAIRMAN. We will give you five minutes more because of the

interruptions.

Mr. WALKER. Yes.

Section 30, in respect to this matter of importations--I am now

speaking on behalf of the gentlemen, no one of whom I know, namely,

those who desire to be protected in this country against the

competition of the labor of Europe in getting up copyrighted books.

Section 30 reads:

That during the existence of the American copyright in any book the

importation into the United States of any foreign edition or

editions thereof (although authorized by the author or proprietor)

not printed from type set within the limits of the United States or

from plates made therefrom, or any plates of the same not made from

type set within the limits of the United States, or any editions

thereof produced by lithographic process not performed within the

limits of the United States, in accordance with the requirements of

section 13 of this act, shall be, and is hereby, prohibited.

Now, gentlemen of the committee, that prohibition does not amount to a

row of pins. It is as void as is the atmosphere around the North Pole

at Christmas time of all human interest, because, although one would

suppose by a superficial reading that it put a fence up around all

parts of the lot, it leaves at least half the sides of the lot entirely

uninclosed. Thus, it prohibits nothing except the importation of an

entire edition. Now, somebody may say: "No; it is not an entire edition

it is aimed at, but only one specimen of the edition."

But I say in response to that, that that language "Edition or editions"

is taken out of the present statute, and in the present statute the

words "edition or editions" are confined in their meaning to entire

editions by the circumstance that the present statute prohibits also

the importation of individual copies. So that if Congress were to enact

that section, and it should come before a court, the lawyer for the

defendant would say: "It is perfectly plain that Congress intended to

change the law. Formerly, in its wisdom, it prohibited the importation

of an edition or editions, and also the importation of individual

copies. Now it has expressly left out prohibition of the importation of

individual copies and prohibited only the importation of an entire

edition," and there would not be any answer whatever to that argument.

Mr. SULZER. Then, in the interest of the working people of the United

States, you would prefer to have the law left just as it is now?

Mr. WALKER. That would be much better than this; but I would

strengthen that law. I know how to strengthen it, and I----

Mr. SULZER. Will you tell us, briefly, how you would strengthen the

present law?

Mr. WALKER. Yes; I would do it by amending this section in three

places, very simply, if the stenographer will take this down.

Mr. SULZER. He takes everything down.

Mr. WALKER. Very well. I propose that section 30 be amended in the

interest of American mechanics by substituting the word "copy" for the

words "edition or editions" in line 5 of page 23. Then in line 9 of

that section----

Mr. SULZER. "Or any part thereof?"

Mr. WALKER. Wait a moment--and by substituting the word "copy" for the

word "editions" in line 9 of page 23; and by substituting the words

"any other" for the word "lithographic" in line 10 of page 23. Now,

with those amendments, every door would be closed, and the American

mechanic would be protected at every point.

Mr. SULZER. Would that preclude any part of that edition being

imported?

Mr. WALKER. It would, because that language, "or any part thereof," is

contained elsewhere.

Section 32: There is a statement that--

all actions arising under the copyright laws of the United States

shall be originally cognizable by the circuit courts of the United

States, the district court of any Territory, the supreme court of

the District of Columbia, the district courts of Alaska, Hawaii,

and Porto Rico, and the courts of first instance of the Philippine

Islands.

Gentlemen, one of the competitors of the gentlemen before me wrote an

opera, and that was George Ade, and in this opera he inserted this

witticism:

The Constitution may follow the flag, but the cocktail is sure to.

We are told by the Supreme Court that the Constitution does not follow

the flag necessarily; it follows it if Congress sends it there. Now, if

in the wisdom of Congress the copyright law should be extended to

Hawaii, Porto Rico, and the Philippine Islands, that can be accomplished

only by a statute expressing that intention. And the statement that the

courts in those outlying regions shall have jurisdiction of copyright

cases amounts to nothing unless you extend the copyright laws to those

portions of the earth's surface. I am not in favor of doing it; but if

you want to make copyrights effective in those outlying regions you

must do so by express enactment.

Here is a more important matter:

Actions arising under this act may be instituted in the district of

which the defendant is an inhabitant, or in the district where the

violation of any provision of this act has occurred.

That ought to be amended by substituting the word "his" for the

word "the," because as it reads now you can sue a man for somebody

else's infringement.

Mr. CHANEY. So that it would read "his violation?"

Mr. WALKER. Yes; substitute "his" for "the." Then there should be

added to that section this language: "And wherein the defendant has a

regular and established place of business."

The public policy involved in that point has been threshed out for

many years in patent cases; and in patent cases it has been found to

be unjust to compel anybody to submit to an action for infringement of

a patent in any district unless it be in the district of which he is

an inhabitant, or a district where he has a regular and established

place of business. You can not sue somebody for infringing a patent

merely by proving that he did formerly infringe that patent in a

particular district away from home, or by finding him in that

particular place. You can not go to Chicago and sue a New York man for

infringing a patent on the allegation that a year or so ago he did

infringe that patent in the northern district of Illinois, unless you

prove also that he has a regular and established place of business in

Chicago. No man ought to be sued for infringing a copyright except in

the district where he resides; or, lacking that, in the district where

he is engaged in business.

Mr. CHANEY. Then you would favor the defendant rather than the

complainant in such a case?

Mr. WALKER. No; I would be just to both; and my proposition is deduced

from the present patent statute, and that patent statute is deduced

from considerations of justice as they have worked out during fifty

years of patent litigation as on the whole being most equitable.

Section 35 provides that "In all recoveries under this act full costs

shall be allowed."

That ought to be amended by substituting the word "actions" for the

word "recoveries," so as to permit recovery in behalf of a successful

defendant as well as in behalf of a successful complainant; and the

word "full" ought to be erased, and these words ought to be added "in

accordance with law," so that the section would read:

That in all actions under this act, costs shall be allowed in

accordance with law;

and the law that would be put into operation by that amendment would

be those general statutes of the United States which relate to the

taxation of costs in all litigations in the United States courts.

Here is a bad section, 43--

That in place of the original instrument of assignment there may

be sent for record a true copy of the same, duly certified as such

by any official authorized to take an acknowledgment to a deed.

That opens the door wide to fraud, because hardly anything is easier

than to get a notary public to certify that one document is a copy of

another, particularly where he is acting in a capacity outside of his

office, and therefore would not be liable for any inconvenience or

penalty if the certificate should turn out to be false. So here is a

proposition to make the ownership of a copyright depend upon the

record in the copyright office of an alleged copy of an assignment,

which alleged copy may be fraudulent, and if fraudulent then resulting

in no punishment to the wrongdoer.

Mr. CHANEY. You would confine that to some other official, then; would

you?

Mr. WALKER. No; I would take it out altogether, and leave it as in

patent cases--that only originals are entitled to be recorded. Such a

thing as allowing a copy of an assignment of a patent or a copyright

to be recorded in the place of the original is entirely unknown, and

it would open the door widely to fraud.

The CHAIRMAN. Your time has expired, Mr. Walker.

Mr. WALKER. Yes. I wish to express my thanks to the committee for

hearing me so long and so patiently, and to express my best wishes for

the future of the bill, and my own entire willingness to contribute,

if I am found to be competent to contribute, to the perfection of the

bill hereafter.

Senator SMOOT. Mr. Walker, I have been wondering, for the hour that

you have been delivering your intelligent speech here, on what basis

your congratulations were extended to Mr. Putnam and other persons who

took part in the preparation of this bill. [Laughter.]

Mr. WALKER. Why, I am surprised that you did not see that.

Mr. PUTNAM. I can say, Senator, It is because they have had the

benefit of such lucid criticism at such an early stage. I can say that

it was not expected by us that anyone would take up this bill with

such a penetrating intelligence as Mr. Walker has shown, within a week

after its introduction into Congress.

Mr. WALKER. And I wish to say to the Senator from Utah, if I may be

permitted, that while I have criticized this bill in plain terms, the

framework of the bill as a whole is very scientific, and in one day or

two days I could so amend the bill as to entirely remove all my

objections and still preserve the substance of the scheme which Mr.

Putnam has put upon paper.

Senator SMOOT. I have been very much interested, Mr. Walker, in your

statement.

Mr. SULZER. Mr. Chairman, I agree with the Senator from Utah; I have

been very much interested in what Mr. Walker has said, and I was going

to make this suggestion: That he be allowed to file a brief with the

committee, which will be printed in the record as a part of the

record.

The CHAIRMAN. That was understood the other day.

Mr. WALKER. Thank you very much.

Mr. SULZER. Mr. Chairman, I would be glad to have the committee hear

now Mr. Nathan Burkan, who represents the publishers and composers of

music.

Mr. CURRIER. Mr. Sulzer, two gentlemen who are now present have come

all the way from Chicago to address the committee and have just this

moment gotten here.

The CHAIRMAN. We will hear Mr. Burkan after them.

Mr. CURRIER. We will hear him later.

Mr. PUTNAM. Mr. Chairman, you have requested me to remind the

gentlemen present that it is the desire of the committee to have a

capacity (if they desire to indicate it) in which they have been here.

Some of you who were not here before will find opportunity to register

at the door, and I would suggest that as the register was not opened

until Thursday, any of you who know of any persons present on

Wednesday who had left by Thursday, and whose names therefore did not

appear upon the register, will please pass a memorandum of their names

in to us.

Mr. Chairman, I have a memorandum handed in which I offer to the

committee on behalf of Mr. Charles W. Ames, calling attention to a

misunderstanding, as he has believed, of two sections, section 3 and

section 19, and another communication simply filing objections to

certain sections, 13, 18, 32, 33, and 34, and desiring an opportunity

later to be heard.

The CHAIRMAN. They will go in the record.

(The papers above referred to, together with a letter from Mr. Leo

Feist, were directed to be made part of the record, and are as

follows:)

WASHINGTON, _D.C._, _June 9, 1906_.

Mr. HERBERT PUTNAM, _Librarian of Congress_.

DEAR SIR: I wish to file with the committee at this time

objections to sections 13, 18, 32, 33, and 34 of the copyright

bill. I will indicate briefly the grounds of my objection and will

make further argument on them at some future time if the committee

should desire.

Yours, respectfully,

CHARLES W. AMES.

_Section 13, page 9._--I have always objected to the proposed

affidavits of domestic manufacture. I believe there is no real

need for it and that it imposes an unnecessary burden on the

demanded only by the Typographical Union, which claims to have

private reasons for believing that the requirement of domestic

manufacture is being frequently violated by publishers. The

records of the copyright office do not show such violations, nor

have I ever heard of any being shown in the courts. The publishers

generally throughout the country regard this requirement as an

imposition and an outrage--that on the suspicion of the

Typographical Union they should be required to swear that they

were not violating the law whenever they take out copyright. The

publishers would have questioned the propriety of this measure

when it was pending before the last Congress if opportunity had

been offered, and strenuous opposition would have been made to the

passage of the bill.

At the first conference last year, the representatives of the

Association of Publishers, in a spirit of conciliation, agreed

with the representatives of the Typographical Union that they

would not oppose the requirement of an affidavit. As a member of

that Association of Publishers. I shall not now oppose the

affidavit section as a whole, which requires me to swear five

hundred times a year that I have done something, failure to do

which would have invalidated many thousands of dollars' worth of

But I do object earnestly and emphatically to the final paragraph

of section 13 (lines 21-25, p. 9), requiring the statement in the

affidavit of the particular establishment in which the work has

been done. This fact is wholly irrelevant to the purpose of the

affidavit and has no bearing on the requirements of the copyright

law. It is purely a private business matter. In case the affidavit

is challenged (as it would be in only an infinitesimal proportion

of registrations) and proof of domestic manufacture is required in

any action, of course the establishment would be readily shown.

otherwise, satisfying the curiosity of business rivals and others.

It seems also an unnecessary insult to the publishers to provide

special penalties for false affidavits. Will not the ordinary

penalties for the crime of perjury be sufficient to cover all

cases where publishers, in addition to jeopardizing their property

rights by violating the provision for domestic manufacture, swear

falsely in the premises?

I believe that Mr. Sullivan, in behalf of the Typographical Union,

stated at the last conference that the union was not disposed to

insist on the specification of the establishment in the affidavit

if it should appear that this fact was unnecessary and irrelevant

to the purpose of the affidavit. I hope that the union will make

no opposition to the elimination of this provision, which is

obnoxious to the publishers. By so doing they will at least

minimize the opposition of the publishers to the affidavit

provision as a whole. There are very many publishers throughout

the country who are not members of the association referred to,

and will not be governed by the agreement made at the conference.

The date of publication, if given in the affidavit, might serve

for convenience as furnishing an essential fact to be a part of

the record covered by the Librarian's certificate.

_Section 18, page 14._--This section relates to the term of

been given to the fact that a vast majority of copyrights become

commercially worthless after a very few years. Thus the records of

the copyright office show that last year but 2.7 per cent of the

copyrights completing their original term of twenty-eight years

were thought by the authors of sufficient value to renew them for

the additional fourteen years under the comparatively simple

provisions of the present law.

It is safe to say that not more than 5 per cent of all the

copyrights have any commercial value after twenty-eight years. It

would seem feasible to provide for the extension of the property

rights in these valuable literary or artistic properties without

conferring undeserved or undesired extensions of term in hundreds

of thousands of copyrights of no pecuniary value to the owners. On

the other hand, there is some intrinsic value to the public in a

portion of the copyrighted material after it has lost all

pecuniary value to the author or his assignee.

I believe that the great majority of copyrights should fall into

the public domain at a definite and easily ascertainable time. I

hold, therefore, that the ordinary copyright term should be no

longer than the twenty-eight years as fixed at present. But the

few valuable copyrights could be secured for a much longer term by

a simple and easy arrangement for renewal, as by requiring merely

the filing of a notice of the desire to extend and allowing the

author or his heirs to file such notice; or, in case there has

been an outright assignment, permitting the author and assignee or

licensee under royalty to join as provided in section 32 of the

present draft.

Some provision should also be made for the renewal of valuable

proprietary copyrights of the sort enumerated in subsection _(b)_

of section 18.

_Sections 32-33, pages 26-27._--My most serious and strenuous

objections are to this section 32, regarding actions arising under

the copyright law, and especially the second paragraph, providing

that actions may be brought and jurisdiction secured in any

district of the United States where violation of any provision of

this act has occurred. This means that any copyright proprietor or

any publisher may be brought into any district in the United

States or every district simultaneously in the case of many

articles sold generally throughout the country. And it therefore

concerns very nearly every person interested in the copyright law.

Every copyright proprietor may be defendant in a suit as well as

complainant. Suits may be brought in good faith or for malicious

reasons; for the real protection of property or for harassing

business rivals. They may be well founded or groundless, honest or

frivolous. Now, speaking as the proprietor of a large number of

copyrights and a great deal of valuable copyright property which I

am anxious to protect against infringement, I would much prefer to

forego the advantages offered to complainants under this section

rather than run the risk of the infinite vexation which might be

caused my company as defendant in malicious and frivolous suits

brought in foreign jurisdictions chiefly for purposes of

blackmail.

I see no good reason why copyright proprietors should have

facilities for the use of the Federal courts not accorded to any

other class of suitors. It is true that certain classes of

protection, but it should be noted that section 966 of the Revised

Statutes is by this bill retained (see sec. 64), and would

therefore still protect dramatists and musical people in the

peculiar rights which they now have under the present law.

The penal provisions of this bill are severe and even harsh,

including misdemeanor clauses with fines and forfeitures and even

imprisonment. On the other hand, the law is full of novel

provisions. It will be, at best, years before these can be

judicially construed so that they may be generally understood.

Meanwhile, everyone concerned will find many doubtful points and

open questions on which legal advice will vary, and can in no case

be conclusive. To subject authors and publishers to the danger of

being peremptorily summoned to defend an action in a distant

district for some supposed violation of some provision, "any

provision of this act," however insignificant, with the issuance

of ex parte injunctions operative throughout the whole country,

with possible "impounding" of important and valuable publications

for an indefinite period of time (during the pendency of the suit,

see sec. 23, p. 18), a publisher in New York might sue his

neighbor across the street in any distant district, possibly

Alaska or the Philippine Islands; a rich and powerful house might

crush a feeble competitor by forcing him to defend suits brought

simultaneously in a hundred jurisdictions. These possibilities may

well terrorize all persons interested in copyrightable property of

any description.

Finally, I say from long experience that it is a mistaken kindness

to make copyright litigation easy. The protection of the copyright

law is chiefly moral. Remedies for actual wrongs committed are in

most cases illusory. A copyright suit should never be brought

except for the most serious reasons and to protect large business

interests.

I believe, therefore, that section 32 should be eliminated

altogether from this bill, unless it is thought necessary to

retain the first paragraph; and I suppose section 33 would go with

it. If this were done, perhaps section 4966 of the Revised

Statutes should be incorporated in the new law at this point and

reenacted for the sake of completeness, if the committee thinks

that it should be retained.

_Section 34, page 28._--The limitation of actions in the present

law applies only to actions for penalties and forfeitures. I do

not think it should be applied, as in this section 34, to all

actions; if it should be so applied the term should be at least

six years (which is the rule with patents, I understand). The

statutes should show clearly that the time runs from the date of

the discovery of infringement by the complainant. In these days of

an ever-increasing multitude of publications, the copyright

proprietor should not be required to examine everything which is

issued to see whether his works have possibly been pirated; nor

should he be debarred from seeking a remedy if knowledge of piracy

should come to him long after the offense has been committed.

Unfairness is not always shown on the face of an infringing work,

and direct evidence is often required to prove this even to the

injured proprietor.

[Memorandum by Charles W. Ames.]

JUNE 9, 1906.

As a constant attendant at the last two conferences, I venture to

offer a few words in explanation of two sections of this bill,

which, I think, have been misunderstood by some of the gentlemen

who have appeared before the committee.

Section 3 has been supposed to have some particular reference to

and bearing on now existing copyrights taken under the present

law. On the contrary, I understand this section to be general and

permanent in its character, the purpose of the last three lines

being to specifically protect all copyrighted matter for its

proper term and no longer, when reproduced in whole or in part,

under license or otherwise, in connection with a later copyrighted

work. This section is very important as definitely clearing up for

the future a question which has been frequently raised in

connection with the present law.

Section 19, on the other hand, relates merely to now existing

copyrights. It has the laudable purpose of extending the benefits

of the new law to authors of valuable literary and artistic works

copyrighted under the present law. The provisions at the end of

the section are designed to secure such new privileges to the

authors without interfering with the vested rights and investments

of their publishers. After such authors have enjoyed the full

forty-two years of monopoly granted them under existing law, they

may secure such additional term as is to be accorded to authors

under the new law; but if under the contracts which they have

already made they have conferred rights upon their publishers as

assignees or licensees, then they must have the publishers join

with them in their request for the extension.

It is questionable whether, in the absence of such provision, the

new privileges could be lawfully conferred upon authors who have

assigned their rights without impairment of existing contracts.

For example, when an author has sold his copyright altogether, the

publisher has combined with the literary property investment in

plates, stock, and good will, which should not be taken from him

at the expiration of the copyright term. In such cases, he could,

under the provisions of the present section, secure an extension

of exclusive rights only with the help of the author with proper

compensation, and the author could secure extension only by fair

consideration of the publisher's rights. If they fail to agree,

they are left just where they expected to be when they made their

contract under the terms of the present law.

As to the licensee for publication under royalty, I see no

objection to the addition of such a provision as was proposed by

Mr. Ogilvie, to protect the author against unfair treatment in

respect to future royalties.

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

The CHAIRMAN OF THE JOINT COMMITTEE ON PATENTS OF THE SENATE AND

HOUSE OF REPRESENTATIVES.

SIR: At the meeting of the Joint committee held to-day, counsel

representing one of the talking machine companies made a statement

to the effect that Hon. Herbert Putnam, Librarian of Congress, in

the preparation of the copyright bill had called into conference

only such interests as he wanted, and with whom he was in league,

and intimated that the Librarian has acted in an unfair manner.

When recess was taken and the gentleman was leaving the building,

I called him aside and emphatically took exception to the remarks

referred to. As one attending but not participating in the last

two conferences held, I think it no more than fair and just and my

duty to express to the joint committee the fact that Mr. Putnam's

course throughout the conferences was fair, just, and equitable to

all interests represented, and that every interest concerned was

invited to present its views.

The interests were varied and frequently antagonistic, and Mr.

Putnam was decided in his expressions that every representative

should be heard to the fullest and freest extent, and that after

the wishes of those interested was ascertained he was confident an

equitable bill would be the outcome; that while it might not be

satisfactory in every respect to each, yet he felt positive that

with the assistance of the Department of Justice, the Treasury

Department, and the cooperation and counsel of the American Bar

Association, and the Bar Association of the City of New York, no

interest or line of industry, whether represented or not, would be

unjustly or unfairly treated. His attitude in all of the

conferences was in the highest degree dignified and impartial.

To my positive knowledge the trade journals, as well as the

newspapers, contained full information concerning the copyright

conferences and the proposed copyright bill as long ago as

February, 1906; yet the gentleman referred to claims that the

conferences were star chamber proceedings for the benefit of

selected private interests. No interested concern could have

failed to become acquainted with the fact that the conferences

were being held, and no one seeking admission was denied

opportunity to present his views.

This statement is made solely for the reason that the unjust,

unfair, and undeserved criticism of Mr. Putnam, known to me to be

absolutely true, has stirred my deepest indignation, and I present

this protest to the committee and ask that the reflections upon

Mr. Putnam be stricken from the record.

Sincerely, yours,

LEO FEIST.

STATEMENT OF FREDERICK W. HEDGELAND, ESQ.

The CHAIRMAN. Whom do you represent?

Mr. HEDGELAND. I represent the Kimball Company.

I wish to state, gentlemen, that three or four days ago I first

learned of the introduction of this measure. I have heard what the

advocates of this bill have said with reference to there being one

side to this question. There are really four sides to this

question--the public, the composer, the manufacturers of the automatic

musical instruments, and the inventors that have made that industry

possible.

The bill as drawn practically gives the monopoly of all this capital

that has been invested, the genius that has been displayed and made

this field possible to the composer, to the publisher and composer, in

its entirety. Now, the brains and effort that have made this market

open to the publisher should be recognized in this bill. The bill

should not be a retroactive one, to punish the inventor and the

capitalist for what they have done in the past to provide a field for

the composer.

Mr. CURRIER. It will not be retroactive.

Mr. HEDGELAND. It must be equitable; and as to any rights that are

conveyed in that bill to the publisher or the composer, it must put

these industries on an equal footing. Otherwise it is creating one of

the worst features of trusts that one can conceive of.

In a recent suit it has been claimed that these instruments discourage

education in music. Such is not the case. In a recent test case it was

proven and never contradicted that learning, both vocal and

instrumental, has increased year after year, and that the sale of

these staff notation copies has been increased rather than diminished

by the automatic musical instruments. Now, those things all being

taken into consideration, I think this industry deserves very careful

equitable consideration on your part.

I have had no time to prepare the different phases of this matter, and

would like, if the committee will give me permission, to file a short

brief from the manufacturers' and inventors' standpoint.

The CHAIRMAN. You may have that privilege.

Mr. HEDGELAND. With that, gentlemen, I will not take any more of your

time.

_To the joint committee of the Senate and House_:

In obedience to the privilege extended me on my short address June

9 by your honorable committee I now file the following brief:

There are, without question, four vital interests involved in the

mechanical reproductions of musical compositions, as set forth

specifically in section 1, paragraph (g), and section 38; this

bill, H.R. 19853, also bristles in many sections with conditions

that might easily be construed as applying to mechanical industry,

and calls for careful analytical legal investigation.

The interests of equity involved are: The inventor; the composer;

the manufacturer of automatic instruments and their controllers;

the public. I shall take up the equities in the order named.

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 25 / 26 章

From that decision or the court of king's bench the plaintiff appealed