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Title: Arguments before the Committee on Patents of the House of Representatives, conjointly with the Senate Committee on Patents, on H.R. 19853, to amend and consolidate the acts respecting copyright
       June 6, 7, 8, and 9, 1906.

Author: United States Committee on Patents

Release Date: August 29, 2012 [EBook #40613]

Language: English

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ARGUMENTS
BEFORE THE
COMMITTEE ON PATENTS
OF THE
HOUSE OF REPRESENTATIVES,
CONJOINTLY WITH THE SENATE COMMITTEE
ON PATENTS,
ON
H.R. 19853,
TO AMEND AND CONSOLIDATE THE ACTS
RESPECTING COPYRIGHT.

JUNE 6, 7, 8, AND 9, 1906.

COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES,

FIFTY-NINTH CONGRESS.

WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1906.

ARGUMENTS ON H.R. 19853, TO AMEND AND CONSOLIDATE
THE ACTS RESPECTING COPYRIGHT.

Committee on Patents,

House of Representatives,

Wednesday, June 6, 1906.

The committee met at 10 o'clock a.m.; at the Senate reading room, Library of Congress, conjointly with the Senate Committee on Patents.

Present, Senators Kittredge (chairman), Clapp, Smoot, Foster, and Latimer; Representatives Currier (chairman), Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb.

The Chairman. We are met to consider Senate bill 6330, relative to the copyright law. We would like to hear first from Mr. Putnam regarding the history of the proposed legislation.

STATEMENT OF HERBERT PUTNAM, ESQ., LIBRARIAN OF CONGRESS.

Mr. Putnam. Mr. Chairman and gentlemen of the committee, the origin of this bill is indicated in the message of the President to Congress last December. The passage is brief; let me read it:

So far the message. It did not contain what was the fact as to the origin of this project, that it did originate in an informal suggestion on the part of the chairman of this committee.

The conferences to which it refers were not open, public meetings; they were not conventions; they were conferences, and conferences of organizations—that is to say, associations representing a group of interests; and those organizations were specially invited, additions being made to the list later as suggestions were made of others that should be added.

The organizations selected were the most representative organizations that we could think of or that were brought to our attention as having practical concern in the amelioration of the law, but especially, of course, those concerned in an affirmative way—that is to say, in the protection of the right. They were nearly thirty in number. The list of them and their representatives is before you.

(The list referred to was, by direction of the committee, made a part of the record, and is as follows:)

Mr. Putnam. These men are the writers of books, the writers of plays, the composers of music, the architects, painters and sculptors, the photographers and photoengravers, the publishers of books, newspapers, periodicals, music, and prints, and the manufacturers, printers, typographers, and lithographers. The conference included, therefore, those interests that abroad are considered primary in such a matter—that is, the creators of the works which are to be protected and the publishers through whom the property in these becomes effective and remunerative; but it included under each of these genera several species and various subsidiary interests. It included the National Educational Association and the American Library Association as representing to some extent the consumers; and in addition to the legal counsel representing special interests it included two committees of the American Bar Association and of the New York Bar Association of experts upon copyright law, who gave gratuitous service as general advisors to the conference and in the framing of the bill.

Upon questions of importation the conference had the benefit of information and advice from a representative of the Treasury Department, expert in the practice of that Department at ports of entry. The Solicitor-General, whose name appears upon the list, was not a formal participant, but his representative was present throughout as an observer of the proceedings; and if I do not emphasize the aid which he and which the Solicitor-General himself, in later informal criticism and suggestion, rendered, it is only because the practice of his office forbids him to take part in the initiation of legislation; and his assistance in this matter must not be taken as a precedent to his inconvenience.

The conference held three meetings in June and November of last year and in March of this year, but, of course, as a conference it included various minor consultations and much correspondence. At the outset of the meeting last June each organization was invited to state the respects in which it deemed the present law defective or injurious, either to its own interest, or, in its opinion, to the general interest. The second conference had before it a memorandum prepared by the register embodying provisions deemed by the office important for consideration at that stage. The third conference, in March of this year, had before it a revision of this memorandum. The last conference, this third, resulted in the draft of a bill, which was sent to each participant for comment and suggestion, and the bill itself is before you.

We would have no misunderstanding as to what this bill is. It is a bill resulting from the conference, but it is not a conference bill; for the conference did not draw it, nor did it by explicit vote or otherwise determine its precise provisions. It is rather a copyright office bill. The office submits it as embodying what, with the best counsel available, including the conferences, it deems worthy of your consideration, in accordance with your previously expressed desire. In calling the conferences and in submitting the draft it has proceeded upon your suggestion. Apart from the chapter relating to its own administration, it has no direct interest in the bill, except its general interest to secure a general amelioration of the law. It does not offer the bill to you as the unanimous decision of a council of experts, for it contains certain provisions as to which expert opinion as well as substantial interest was divided. It does not offer to you the bill as one that has passed the test of public discussion, for it has only now come before the public. It knows already of objection to certain of its provisions—objection which will be entitled to be heard by your committee; and it is informed by one critic that his objections are sufficient to cover fully one-half of the provisions of the bill.

The bill comes before you with precisely that presumption to which its history entitles it—no less, but no more.

The conference had certain aids prepared in advance by the copyright office, which were embraced in these particular publications, setting forth the present law in this country and all previous enactments in this country—a bibliography, indeed, of all bills introduced into Congress, all amendments of the copyright laws, and the laws in foreign countries so far as they could be epitomized.

The conferences occupied eleven days in all, of twenty-two sessions—two sessions a day. Their labors are evidenced by these four volumes, which are the stenographer's record of the proceedings. The sincerity of their endeavor to secure a result that should be scientific yet conservative, is, perhaps, evidenced by the brevity of the bill. The memorandum of last November contains some 16,000 words; that of March contains some 11,000 words; the bill contains slightly over 8,000 words. I believe that the present group of statutes embodying the existing law will contain somewhat over 4,000 words; and they are alleged to be imperfect and neither systematic nor organic.

The bill attempts to be both. It is, as you see, divided into eight chapters, with some supplementary miscellaneous provisions. I say that it is divided into chapters—that is, recited in the contents of the bill as printed officially and set forth in marginal references in the bill as printed at the Library. These chapters deal with the nature and extent of copyright, the subject-matter of copyright, who may obtain copyright, how to secure it, the duration of it, the protection and the transfer of copyright, and the copyright office.

I have furnished to your committee some analysis of it. That analysis is contained in the printed statement marked "Memorandum," of which there are additional copies here dated June 5, including those before you, containing some slight changes from those sent out to members of your committee. I would ask to have this one, dated on the outside June 5, considered the recent one.

(The memorandum above referred to was, by direction of the committee, made a part of the record, and the same is as follows:)

I have particularly noted in this memorandum the points in which the bill intentionally abrogates existing law and the more significant respects in which it modifies or amplifies it. The respects in which it intentionally abrogates existing law are very few, as shown in Part B of the memorandum. The phraseology of existing law is only here and there recognizable in the bill. That is because the bill attempts to be systematic and organic, and, second, because it has sought general terms, wherever descriptive, rather than particular specifications. Especially has it preferred this where the specifications might be limiting. This, as I have noted in the memorandum submitted to you, is particularly illustrated by the treatment of the "subject-matter." The bill contains only the general statement that the subject-matter is to include "all the works of an author," leaving the term "author" to be as broad as the Constitution intended; and, as you know, the courts have followed Congress in construing it to include the originator in the broadest sense, just as they have held "writings," as used in the Constitution, to include not merely literary but artistic productions.

After this general statement certain specifications follow in the bill of particular classes under which a particular application is to be made in the office, but these specifications are coupled with the proviso that they shall not be held to limit the subject-matter. The specifications so far as possible also substitute general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statues and statuary." They assume, however, that all of these articles will be included under the more general terms, as "prints and pictorial illustrations" or "reproductions of a work of art" or "works of art" or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts" in the present statute with the idea that there is subject-matter (for instance, of applied design, not yet within the province of design patents), which may properly be entitled to protection under the copyright law.

The attempt to substitute general terms for particulars is evidenced also in the definition of the right, and of the acts which constitute an infringement of the right. The present statute (sec. 4952) defines the right to consist in the sole liberty to do certain things. The bill (sec. 1) defines the right to be the sole and exclusive right to do certain things, and it specifies those things; but its specifications are in terms very different from those in the present statute.

The present statute (secs. 4965 and 4966) specifies certain acts which are to be deemed an infringement. The bill, having defined the right of the copyright proprietor as the exclusive right to do certain things, defines an infringement to consist in the doing or causing to be done without his consent of any of those things, the right to do or authorize which is exclusively reserved to him. It contents itself with this, adding only the one specification that "any reproduction," without his consent, "of any work or material part of any work in which [his] copyright is subsisting," shall be an infringement.

So as to the person who may obtain copyright: The present statute mentions the "author, inventor, designer, or proprietor," and elsewhere the "originator." The bill rests with the term used in the Constitution, "author," adding only "proprietor," which is not merely in the existing statutes, but has been construed in a series of judicial decisions.

Copyright consists of the exclusive right within a defined period to do certain things with certain subject-matter and to prevent other people from doing these things. The fundamental provisions of the copyright law are therefore these four:

What is the subject-matter?

What are the acts?

How may the exclusive right to do them be secured?

And who may secure it?

Upon the third point, "How may the right be secured?" the bill modifies substantially the existing requirements of law. These make deposit and registration in the copyright office a condition precedent. They require the deposit to be at least coincident with the publication, and they stipulate that failure to comply precisely with this requirement shall avoid the copyright ab initio.

The bill, in section 9, initiates the copyright from the date of the publication of the work, with the notice of copyright affixed. So, in effect, does the present law initiate the copyright from that date, provided the deposit and registration be effected then; but by the bill the publication with notice not merely initiates the copyright, it "secures" it. That is the expression used in the bill.

Deposit and registration in the copyright office are still requisite, but a reasonable period after publication is allowed for them. The period is thirty days, and in the case of error or omission may be even an entire year, but with the proviso that after the thirty days no action for infringement may be brought until these requirements have been complied with. The right is to be exclusive for a limited period. This period is now twenty-eight years, with a possible renewal for fourteen years—a maximum, therefore, of forty-two years. The bill abolishes renewals and provides for three terms, according to the subject-matter. The shortest is twenty-eight years for labels and prints relating to articles of manufacture heretofore registered in the Patent Office, but which the bill proposes to be taken over into the copyright office. The second term, fifty years, is substantially identical with the present possible maximum of forty-two. It applies to some original and to all derivative works. It would probably cover the majority of copyright entries during any particular period—the majority in number, I do not say in importance. The longer term—the life of the author and fifty years after his death—applies only to original works, but applies to most of those.

As to the merit of these terms, Mr. Chairman, and their necessity you will hear discussion. I merely call your attention to them with, however, these suggestions, which I feel in duty bound to communicate, because they have been so insistently urged upon us:

First, that the present term, a maximum of forty-two years (and that a conditional maximum), does not insure to the author his copyright even throughout his own life, and it makes no certain provision for his immediate family after his death. These are admittedly grave defects, and they are perhaps not met by the fact—it is a fact—that at present the privilege of renewal is taken advantage of by only a small percentage of the authors or their families.

The second is, that a term as long as life and fifty years exists in fifteen countries, including France; that England, with the minimum term of life and seven years proposes a term of life and thirty years, and that Germany, with a term of life and thirty years, is discussing—informally thus far, but is discussing a term of life and fifty years.

The third suggestion is that a common disposition to question a long term for copyright, on the ground that a short term suffices for patents, is based upon false analogy. Literary and artistic productions and useful inventions may be equally the creations of the mind, and they are coupled in the Constitution; but they are coupled, it is pointed out, only as deserving protection. Their character, and the duration of the protection required by each, may be very different. It is alleged to be very different. The monopoly is different; the returns to the creator are different, and the interests of the public are different in the two cases. The monopoly by patent in an invention is a complete monopoly of the idea. The monopoly by copyright in a literary or artistic work is a monopoly merely of the particular expression of the idea. The inventor's exclusive control of his idea, it is said, may bar innumerable other inventions, applications of his idea, of importance to the public, while the author's or artist's exclusive control of his particular expression bars no one except the mere reproducer. The returns to an inventor are apt to be quick; the returns to an author are apt to be slow, and the slower in proportion to the serious character of his book, if a book. The returns to a successful inventor are apt to be large; the returns to even a successful author or artist are not apt to be more than moderate.

Then the idea, it is said, covered by an invention or discovery, may concern the essential welfare, even the lives, of the community, and should be freely available at the earliest possible moment not unjust to the creator of it. Now, it is remarked that no particular book, at least none currently copyrighted to-day, can be said to be essential to the welfare or protection of the community. Many a man's pleasure may be enhanced by it, some men's profit; but no man's essential welfare depends upon it, and no man's life, save, perhaps, the author's own.

I communicate those suggestions as having been pressed upon us.

In no respect are the present statutes alleged to be less satisfactory than in their provisions for the protection of the right, and redress to the copyright proprietor for invasion of it. One inconvenience is that they provide a different class of remedies and recoveries for different subject-matter; another is that they seem to confuse the duty of the Government to punish a deliberate infringement as it would punish any other theft with the right of the copyright proprietor for compensation for his particular losses. The bill attempts to provide uniform remedies, and it divorces the civil action from the criminal. As the memorandum states it, "Penalties imposed for acts in the nature of misdemeanors are no longer to be shared by the United States with a person suing for them;" nor "are sums recovered by way of compensation to the copyright proprietor to be shared by him with the United States." Nor is his right to recover such sums to be imperiled by the necessity of proving that the defendant has committed an offense against the community as well as profited at his expense.

The deliberate theft of a dramatic or musical composition by the willful performance of it for profit, without the assent of the owner, author, or copyright proprietor, is now by law a misdemeanor. The conference could not see why this provision should not apply to any infringement which is both willful and for profit, and section 25 of the bill extends it to all such.

The existing provision (sec. 4966, Rev. Stat.) which provides remedies and penalties for infringement of dramatic and musical copyrights, is of great moment to the dramatists and composers; and now that it is merged in the general provisions of this and other sections of the bill they are in great apprehension lest it may suffer accident, if accident befall these. To guard against this the general repealing clause of the bill excepts and continues in force section 4966 of the Revised Statutes, but it does so with the intention that this exception shall be dropped in case the general provisions stand.

The reason or merit of these and other provisions of the bill will at the proper time have to be made clear to you, if challenged. That is no part of my present duty, which is merely to introduce the bill to your attention, with some explanation as to how it came to be, and some note as to its leading features. But I except two matters, and I do so to avoid misapprehension; and I feel free to do so because both involve the administration of the copyright office. One is as to fees. The impression has gone out that the fee for registration is to be doubled. The fee for registration is now 50 cents, but 50 cents additional is charged for a certificate when furnished. The proposed fee is $1, but this is to include the certificate, which is to be furnished in all cases and as a matter of course. It ought to be furnished, in the opinion of the office, and no claimant of copyright ought to rest easy without it. It is the evidence of registration and deposit—indispensable formalities, even hereafter—and it is now to be prima facie evidence in a court of law of the facts which it sets forth.

If the copyright is worth the 50 cents for the registration, it seems certainly worth the additional 50 cents for the certificate. But I note here that objections are to be raised to the provision for fees, and particularly as working hardships in some cases not made exceptions, as the case of a series of studio photographs registered under one title at the same time is made an exception. You will have some suggestions as to cases in which the exaction of this fee, without some special modification in certain cases, would work an undue hardship.

On the other hand, the bill tends to reduce the aggregate fees payable by any one publisher and the aggregate receipts of the office by enabling a number of volumes of the same work, and in the case of photographs, prints, and like articles, an entire series, if registered at the same time, to be registered for a single fee.

The other matter is that of copyright deposits. The volume of these is now prodigious. During the last year alone the articles deposited exceeded 200,000 in number. A large proportion of these are of great value to the Library and are drawn up into it. The rest remain in the cellar. The accumulations in the cellar now number a million and a half items. Many of these would be useful in other Government libraries; for instance, medical books in the library of the Surgeon-General's Office. Some of them might be useful in exchange with other libraries. A few might have value in exchange with dealers. The remainder are a heavy charge upon the Government for storage and care, without any corresponding benefit. They ought to be returned to the copyright proprietors if they want them, or, if not wanted, destroyed. Such dispositions are, I believe, already within the authority of law; but it is fair that they should be expressed. The bill (secs. 58 and 59) definitely expresses them. I ask your attention to them in due course. They have been accepted by the conferences, and therefore by the interests outside of the Government most nearly concerned with their operation. But they may awaken some apprehension elsewhere because of a quite common misunderstanding of the significance of the deposit and its relation to the copyright protection.

The original purpose of such deposits was the enrichment of the Library. This is clear from their history, both in this country and abroad. They were made a condition of securing copyright, but they had no continuing relation to the copyright once secured. In England, for instance, the copies required (now five) are to be for the use of the libraries—five libraries—no one of which is the office of registration for copyrights. The earliest act in this country was that of Massachusetts, in 1783, which exacted a copy as a gift to the library of the University of Cambridge, Harvard University, "for the use of said university," which was not the office of copyright. The earliest act providing for deposit in the Library of Congress, that of 1846, provided that the copyright proprietor should give one copy of the book to this Library, and at the same time it provided that he should give one copy to the library of the Smithsonian for the use of that library.

In 1867 the library of the Smithsonian became a part of the Library of Congress. The act of 1870 provided two copies, both to be addressed to the Library of Congress. But by that same act of 1870 the Library of Congress became the office of registration for copyright; and from that time, and because the failure to deposit not later than the date of publication actually voided the copyright, an impression has grown up that the articles deposited are an integral part of the record of registration, and have a peculiar sanctity as such. The fact of the deposit has been and will be an integral part of the record, and in times past this could most readily be proved by the copies themselves, the law providing neither for a certificate to the claimant admitting the receipt of the deposit nor an entry in the official record showing it. But hereafter the fact of deposit will be proved by the certificate itself.

There is an impression—a very natural one, too—that the copies deposited are necessary evidence of the thing copyrighted, and essential as such in litigation. Now, during the past thirty-six years the copyright office has record or memory of only four cases in which articles deposited have been summoned into court, and an authority on copyright litigations remarks that in three of these he is quite certain that the reason was a fanciful one, and in the fourth he did not see any necessity for it.

For the matter of that, however, there is little prospect that any article of sufficient importance to be a subject of litigation would be deliberately destroyed, or would fail to be drawn into the permanent collections of the Library—at least one copy of it.

Mr. Chairman, having indicated something of what the bill is, let me say a word as to what it is not, in intention.

First. It is not an attempt to codify the common law. The conservative bar was very fearful that it would be. Even more than the present statutes, it leaves to the courts to determine the meaning and extent of terms already construed by the courts. It does this even in cases where the temptation to define was considerable and where foreign statutes attempt a definition. For instance, Who is an author? What is publication in the case of works not reproduced in copies for sale? What is fair use? Now, many such definitions were proposed and lengthily discussed, and omitted because they did not stand the test of the best expert opinion of the most conservative advisers of the conference, particularly the committees of the bar associations.

Second. The bill does not, in intention, attempt to regulate relations between authors and publishers which are or may be matter of private contract.

Third. It is not an attempt at abstract and theoretic perfection, nor is it an attempt to transplant to this country theoretic or what might be charged to be sentimental provisions of foreign law. It tries to be a bill possible for this country at this time and under conditions local here. It contains, therefore, some provisions which are, in our judgment, neither theoretically sound nor according to modern usage abroad nor satisfactory to particular participants in the conference. These are a compromise between principle and expediency or between one interest and another at the conference, between which we could not decide for either extreme—I mean decide in the sense of bringing before you a suggestion in this particular form. We had not any decision in any other sense; we were not a commission. The bill is a compromise. I doubt if there is a single participant in the conferences whom it satisfies in every particular.

Fourth—and I feel really, Mr. Chairman, in justice to the conferences, after their year of labor, impelled to say this—the bill is not a mere congeries of provisions proposed by a selfish group, each member of which was considering solely his own particular interest. It contains, of course, some provisions which concern only particular interests—for instance, the provision as to sound records, or that as to affidavit of domestic manufacturers. But these are easily distinguishable; we suppose and we should hope that they would be distinguished, and particularly so if, as we know to be true in the case of sound records, there is to be definite objection before you against the bill as it stands; and we should hope that that objection, with the arguments of those with whom the proposal originated particularly, should be set aside for special discussion distinct from the general discussion on the bill as a whole. I say there are provisions which concern particular interests, of course, particularly; but these we should hope would be distinguished in your consideration of it.

The bill is the result of a sincere attempt, as we have seen it, to frame a reasonable general statute. I say "sincere," and I feel the right to say it because I followed the conferences closely, and had the best opportunity to judge of their temper and disposition. If some of the interests were selfish in one direction, they were met by the selfishness of others in another direction, and both were under criticism from the general advisors and under the influence of the main body. And neither such interests—and I am speaking of history now, of course—neither such interests nor any other participant in the conference initiated the conference, nor determined its composition, nor controlled its proceedings. The conference was initiated by the Copyright Office at your suggestion, Mr. Chairman. It was composed of organizations invited by the office, and it was theoretically held in the office. The Librarian presided at it, and except for the purpose of some formal resolutions it never organized or in any other way passed out of the control of the office.

If the bill reveals some selfishness, it is perhaps condonable. It is the selfishness of men trying to protect their own property; for of course, as I have emphasized, the interests that were especially invited to the conferences were those that are concerned in an affirmative way with the protection of the right. The conferences were not generally representative—completely representative—in other respects. The bill has that purpose—that is, for the protection particularly of the property. It comes before you for consideration on the ground that it goes too far. It does not create, of course, a new species of property; it merely recognizes a species of property created by the Constitution and already recognized by statute. Its purpose is simply to secure to the man who has created it a species of property which peculiarly requires the protection of law, because the very act which makes it remunerative to him lays it open to expropriation—that is, the act of publication—and seems peculiarly entitled to the protection of the law, because it is that act, and that alone, which makes it of any use to the public; and of course it secures this protection—not permanently, but only against untimely expropriation.

It may be said that the public was not represented at the conferences. The public in this matter would, I suppose, belong to one of four classes: In the first place, the producer, the creator, with his publisher and manufacturer; or, second, one who is to enjoy the work as a consumer; or, third, one who wishes to utilize the work in some other work, or to reproduce and market it for his own benefit, when this can be done innocently; or, fourth, the student and critic of the rights and obligations of property, and of the regulation of this by law. There may be a fifth class, the mere pirate. He was not invited to the conferences, and I suppose he would not be to your hearings. But the innocent reproducer was not unrepresented at the conferences or in the discussions. In fact, most of the producers were also reproducers, and quite insistent upon their convenience as such. The original producers, publishers, and manufacturers were there as of right, and the student and critic through their interest and public spirit. As for the consumers, two considerable groups were actually represented, and more would have been if organizations could have been found to represent them. Others also there spoke for them.

But as I understand it, it is in the interest of the consumer just because it is in the interest of the producer that copyright laws were originally designed and were called for by the Constitution; and if this proposed one fails fairly to regard that interest of the consumer, its defects will surely be brought to your attention by the third great estate which is jealous of those interests—the newspaper and periodical press; for the bill is now before the public.

Finally, Mr. Chairman, notwithstanding the labor put upon it, the bill is doubtless still imperfect in expressing its intentions; and I have no doubt that while it is under consideration those especially concerned will ask leave to submit to you some amendments of phraseology. I understand that any such amendments proposed by participants in the conferences will be communicated first to the copyright office, so that they may be formulated by the register for your convenient consideration; and the office will gladly do the same for any that may reach it from any other source.

The relation of the office to this project has been peculiar, Mr. Chairman, and that alone has excused me in introducing the bill to you. But having introduced it, the office will, with your permission, relapse into its more normal position of informant to your committee on matters of fact, and an adviser when its opinion is asked. With the general structure of the bill, including its phraseology, the office will of course have especial concern. Upon the general principles involved and upon matters of practice the office will naturally have some opinions, and may not avoid ultimately expressing these, even though in doing so it incidentally supports a provision which concerns particularly a particular interest. It can not avoid this where a bill is referred to it by your committee for its opinion, and still less can it do it in the present case where it is itself in possession of the reasons which induce the various provisions and the principles supposed to underlie them. It must, as occasion requires and you think necessary, expound the bill. Mere advocacy, however, Mr. Chairman, of any particular provisions it must leave to others.

Mr. Chairman, ordinarily I assume that in such a case as this those who are in a sense proponents of the measure would be heard in the affirmative in argument in support of the measure. It is my understanding that in so far as the proponents can be said to be those who participated in the conferences, they do not care for leave to make any argument as such. Certain of them, representing typical interests, would, however, be glad to submit a word or two in behalf of those interests—a very brief word, no one of them speaking for more than five minutes. We have thus far (which I am under duty to communicate to you) notice of objections to two or three particular provisions and then to the bill substantially as a whole.

One of the particular provisions is that against reproduction of copyrighted musical compositions by means of some device or appliance for reproducing it to the ear. Another particular provision is that which, in two respects, curtails the privilege of American libraries to import foreign editions of works copyrighted here.

Mr. Currier. It does so in more than two respects, does it not?

Mr. Putnam. The present law permits two; the bill cuts the two to one.

Mr. Currier. Yes; but there are various other restrictions embodied in the bill, are there not?

Mr. Putnam. In regard to libraries?

Mr. Currier. In regard to importation for libraries.

Mr. Putnam. Yes; there may be other points. I was speaking of the two.

Mr. Currier. The individuals are cut out, are they not?

Mr. Putnam. The individuals are cut out.

Mr. Currier. That is one restriction.

Mr. Putnam. They are noted as cut out.

Mr. Currier. The number of books is reduced from two to one?

Mr. Putnam. In all cases; yes.

Mr. Currier. Then the phraseology is so changed that it must mean something. When you say, "To any book published abroad," beginning on page 16, "with the authorization of the author or copyright proprietor," what does that mean?

Mr. Putnam. Page 16 of the library print?

Mr. Currier. Yes; it is subdivision E, page 16.

Mr. Putnam. Section 30—"any book published abroad with the authorization of the copyright proprietor"—that is, the authorized foreign edition.

Mr. Currier. Well, that phraseology is new.

Mr. Putnam. I was not of the impression that the intent was new in that. It refers to the foreign authorized edition as distinguished from the foreign unauthorized edition, because the importation of any unauthorized edition is prohibited as a fraudulent invasion of the right. It may be, of course. If there is any diminution under that of the present privileges of libraries, there is a group of librarians who desire to be heard. I do not know that they had that so particularly in mind as the exception under subsection 3.

Mr. Currier. In subsection 3 there is still another new restriction, is there not?

Mr. Putnam. Yes.

Mr. Currier. As to the privilege of importation without the consent of the American copyright proprietor, etc.?

Mr. Putnam. Yes.

Mr. Currier. That is still another restriction?

Mr. Putnam. Yes; two copies reduced to one, this prohibition of the importation of the foreign edition of a book of an American author published here of which there is an authorized American edition——

Mr. Currier. And the cutting out of the right of the individual?

Mr. Putnam. And the cutting out of the right of the individual. I was speaking of libraries first; yes.

Mr. Currier. And then such restrictions as may be embodied in that phraseology?

Mr. Putnam. Yes; if there is any restriction there, that also.

Mr. Currier. I understood some two months ago that an agreement had been reached between the publishers and the librarians, satisfactory to both, which was to be embodied in the bill. Was that the proposition that is now a part of the bill?

Mr. Putnam. I think that can best be answered, Mr. Currier, by Mr. Bostwick, who is here, who was a participant in the conferences in behalf of the American Library Association. That is the general association of this country. Mr. Bostwick and Mr. Hill were the two delegates to the meeting; and Mr. Bostwick will say whether this provision is satisfactory to his association as an association.

Mr. Currier. I simply desire to say that my mail is filled with protests from librarians and from universities and colleges against this restriction.

Mr. Putnam. Yes; and as I was saying, Mr. Currier, we have already note of that protest. Mr. Cutter, Doctor Steiner, and perhaps others—certainly those two, however—Mr. Cutter being librarian of the Forbes Library, at Northampton, and Doctor Steiner being librarian of the Enoch Pratt Library, at Baltimore, are here in behalf of remonstrants against any diminution of the present privileges of libraries. I had understood that this provision as it stands had been accepted by the representatives of the association simply as participants in the conference. May Mr. Bostwick state as to that, Mr. Chairman? I only suggest it because you asked the question.

The Chairman. We have concluded that it is best to adopt the suggestion to hear first the proponents of the bill and then, at a later period, hear those who object to its provisions.

Mr. Putnam. In that case, Mr. Chairman, if you will let me suggest, the interests represented at the conference are easily classifiable. They were the creators of literary productions, the authors; they were the dramatists; they were the composers and the publishers of those productions, the manufacturers, the reproducers; they were these two associations, so far as we had them there, representing the consumers; and then there were the two committees of the American Bar Association representing our general legal advisers.

Mr. Bowker is here representing the author class particularly.

The Chairman. We will hear from Mr. Bowker.

Mr. Sulzer. Mr. Chairman, I would like to have it noted on the record that I have received a letter from former Judge A. J. Dittenhoefer, the well-known lawyer of New York City, who represents the American Dramatists' Club and the Managers' Association, of New York, and who desires to appear at some subsequent time in favor of certain provisions in this proposed law.

The Chairman. Does he desire to be heard if the committee is in favor of them?

Mr. Sulzer. No; not if the committee is in favor of them. That is the point.

The Chairman. Perhaps that can be taken up, then, at a later date.

Mr. Sulzer. Yes.

STATEMENT OF RICHARD ROGERS BOWKER, ESQ., VICE-PRESIDENT OF THE AMERICAN COPYRIGHT LEAGUE.

The Chairman. Will you please state your name, Mr. Bowker, your residence, and whom you represent?

Mr. Bowker. My name is Richard Rogers Bowker. I speak as vice-president of the American Copyright League, commonly called the Authors' Copyright League.

Mr. Chairman, the American Copyright League, for which I speak as vice-president in the absence of its president, Mr. Edmund Clarence Stedman, who regrets in this letter that ill-health detains him in New York, and who desires to be recorded as well satisfied with the bill as a basis for Congressional consideration, and in the absence of our secretary, Mr. Robert Underwood Johnson, of the Century, who has been our sentinel for years in respect to all matters as to copyright legislation, the American Copyright League asks that the first half hour be devoted by your committee to the originators of copyright property.

Mr. Clemens, I understand, has reached Washington, and hopes to be present at one of these sessions as a member of the council of our league. Mr. Bronson Howard, the president of the American Dramatists' Club, and also a vice-president of this league, I hope will be present to speak for the dramatists. Mr. Sousa and Mr. Victor Herbert are here to-day representing musical composers. Mr. Frank D. Millet is here as the delegate of the National Academy of Design and of the Fine Arts Federation, and possibly Mr. Carl Bitter, president, or Mr. Daniel C. French, ex-president of the National Sculptors' Association, may also be here. We ask that a half hour be given to those gentlemen presently; and I shall occupy but five minutes or so of that time.

The conference, sir, proceeded at its first session on a memorandum which formed the basis for discussion, presented by the American Copyright League; and I mention that to say that that memorandum included two important suggestions which were not incorporated in the bill—one the suggestion that the bill should be, as it were, a group of bills, representing separately and distinctively the literary, dramatic, musical, and artistic varieties of copyrightable property. An honest endeavor was made to do that, but it proved not practicable and workable. Again, members of our council, Mr. Stedman and Mr. Clemens among them, desired very much that the authors should be safeguarded in their relations with publishers by certain insertions in the bill. It was held by the legal authorities that that was not a proper subject of introduction in a copyright code; and on those two points the American Copyright League, I think I am authorized to state, recedes from any possible dissension. And I say it, sir, because there are doubtless many points on which the several organizations would prefer to have additions or omissions.

A little girl I knew spoke of a compromise as something where everybody got what they did not want. Now, in that sense this bill is not a compromise. It represents, rather, the consensus of opinion of the originators of copyrightable property, of the reproducers, publishers and similar interests, and of representatives, as Mr. Putnam has told you, of various other interests. On behalf of the league we believe, sir, that you have before you a working basis for a just, broad, clear, workable copyright bill; and we feel confident that such a bill will emerge from your deliberations.

We ask you, sir, to keep in mind two vital points: First, that the rights of the producing classes shall be first of all thought of, but not to the detriment of the great body of reproducers and readers, on whom the author classes depend for the possibility of realizing from their productions. As has been said to you, copyright is on a different basis from patents, in that it not only does not interfere with the rights or privileges of others as succeeding inventors, but that the world is the better for any original work contributed by help of the copyright laws to the community without detriment to anyone, and therefore it should have a broader scope before you in copyright legislation than in patent legislation; and we ask that in that view, in that spirit, the rights of the producing classes shall be kept in mind.

Secondly, sir, this is a very difficult and complicated question. Those of us who have met in conference have recognized most fully the care, fairness, and wise consideration which have been given to all interests by the copyright office and the difficulties under which a practical bill has been framed. We ask you, sir, in your considerations in the committee and in the discussions in Congress so far as they are shaped by the committee, that you will keep in mind, sir, the importance of keeping a consistent bill throughout these difficult provisions. The copyright office has been of the greatest service to all of us in that very function; and I have no doubt, sir, from our experience, that it will be of the greatest service to your committee.

The league had stood for a copyright commission instead of this conference. But when we find this bill, sir, presented as the result of only a year's work, and remember that the English copyright commission took years to produce a draft which has not yet, after nearly a generation, been enacted into law, we can not but express the greatest satisfaction with the result now before you. We do not feel, sir, that any bill can be presented to your committee which does not call for the most careful consideration, for protest from outside interests, and for discussion, not only in your committee and in the halls of Congress, but throughout the public. We do not feel that any such bill would be possible; and I wish very heartily, sir, to record the American copyright league as favoring the fullest discussion and the fullest consideration of any of what may be called the minority interests. We believe that the interests of the office are perfectly consistent with the interests of the public; and in that view, sir, we support most heartily, individually and as members of the conference, the bill which you have before you.

STATEMENT OF FRANK D. MILLET.

Mr. Millet. I shall have very little to say, Mr. Chairman. The artists are interested in this bill because, as the committee undoubtedly understands, the copyright of a picture is often, almost always, more valuable to the artist than the original work—that is, of greater money value. We have had long experience with the law, and we have not found that we have been protected. So little protection has been afforded that it is no longer the habit for the artist to copyright his picture. We have gone out of the business of copyrighting, practically, as you will find if you will go to any exhibition, because we have not been able to get any relief in case our work had been infringed upon. We have always objected to the copyright notice which we have been obliged to put on the picture, because it is considered a disfigurement. That is another reason why we have not copyrighted. That has been a very great loss to us as a class. That has been one of the reasons why we prefer, many of us, to spend much of our time abroad.

If you will pardon me for a moment I will give a personal instance.

I have painted in England and in Europe over twenty years. I never had one bit of difficulty with my copyrights over there, and I have had considerable income from my copyrights; and I think $7 or $8 is about all the money I have ever gotten in America out of copyrights here.

Since the conferences began last winter two of my pictures have been reproduced by a journal in New York, one of them in color. They cut off my name and copyrighted the picture themselves. In the case of the other they left my copyright on and published it without my consent. I have absolutely no redress, because the law says that I can get a dollar for every copy found in their possession, and they were not fools enough to have any copies in their possession, of course. I relate this little personal tale, because that is what has been the experience of all the artists, painters, and sculptors.

We do not pretend to say that this bill, in these particular cases, or in the first case of notice, meets our highest desire, because we would like to have it exactly as it is abroad, no notice being required whatever. But we met our friends, our dearest foes, the reproducers, and made this compromise, which is satisfactory to us on the question of the notice, as to what we shall put on the picture without disfigurement, and we think that the bill is the best one that we could possibly agree to, and we are all of us fully in favor of the bill as it stands.

I thank you.

Mr. Sulzer. Is the bill as it is drawn at present satisfactory to you?

Mr. Millet. It is satisfactory to us.

Mr. Sulzer. And you want it passed just as it is?

Mr. Millet. We would like to have it passed as it is.

Mr. Sulzer. That would protect the artists?

Mr. Millet. As far as we can make out, that would protect us.

Mr. Currier. Is it the criminal remedy that is provided by this bill that would give the protection you need?

Mr. Millet. That is one of the things.

Mr. Bonynge. What are the new remedies given to the artists by the provisions of this bill?

Mr. Millet. At the end of the bill you will find them.

Mr. Chaney. Just state them from memory.

Mr. Millet. There is a misdemeanor clause that we are very keen on, the same as for the dramatists. We do not see why it should not be a misdemeanor, to apply to us as well as to the dramatists—sections 23 and 25.

STATEMENT OF JOHN PHILIP SOUSA.

Mr. Sousa. Mr. Chairman, I would much rather have my brass band here. I think it would be more appreciated than my words will be. [Laughter.]

Mr. Chaney. We would rather have you, just now.

Mr. Sousa. Thank you.

Mr. Chairman, I would like to quote Fletcher, of Saltoun, who said that he cared not who made the laws of the land if he could write its songs. We composers of America take the other view. We are very anxious as to who makes the laws of this land. We are in a very bad way. I think when the old copyright law was made, the various perforated rolls and phonograph records were not known, and there was no provision made to protect us in that direction. Since then, the talking machines have come out, and the claim is made that the record of sound is not a notation.

There are three ways for the composer to make a living by his music: By sight or by sound or by touch. The notation of my compositions or the compositions of any other composer for the blind must be entirely different from the ordinary, because it must be read by the sense of touch. The notation that is made for a combination of instruments is brought out by sound. The claim that is made about these records is that they can not be read by any notation—simply that no method has been found to read them up to the present time, but there will be. Just as the man who wanted to scan the heavens discovered a telescope to do it. No doubt there will be found a way to read these records.

We are entirely in favor of this bill. The provisions satisfy us, and we want to be protected in every possible form in our property. When these perforated-roll companies and these phonograph companies take my property and put it on their records they take something that I am interested in and give me no interest in it. When they make money out of my pieces I want a share of it.

Mr. Sulzer. They are protected in their inventions?

Mr. Sousa. Yes, sir.

Mr. Sulzer. And why should you not be protected in yours?

Mr. Sousa. That is my claim. They have to buy the brass that they make their funnels out of, and they have to buy the wood that they make the box out of, and the material for the disk; and that disk as it stands, without the composition of an American composer on it, is not worth a penny. Put the composition of an American composer on it and it is worth $1.50. What makes the difference? The stuff that we write.

Mr. Bonynge. What is the protection by the terms of this bill that is given you?

Mr. Sousa. That in any production of our music by any of these mechanical instruments they must make a contract with us or with our publishers; that they must pay us money for the use of our compositions.

The publishers of this country make contracts with the composers, and agree to give them a sum outright or a royalty on sales for each and every copy that they publish and sell.

The companies making records for talking machines take one copy of a copyrighted piece of music and produce by their method a thousand or more disks, cylinders, or perforated rolls. If they would buy one copy from my publishers and owners of my copyright and sell that one copy, I would have no objection; but they take the copyrighted copy and make what they claim is a noncopyrighted copy, sell it, and do not give the owner of the copyright a penny of royalty for its use; and they could not do this if the composer had not written it and the publisher had not published it, and I want to be paid for the use they make of my property.

Mr. Webb. Does this affect records already made?

Mr. Currier. No; it does not affect existing copyrights.

Mr. Sousa. No. That is a sop—I am willing to let it stand for the sake of the future, but I think it is wrong. That is a sop to them, the talking-machine companies, and hereafter they will make money after this law passes on the pieces that I made before the law went into effect.

Mr. Chaney. So that we will get "El Capitan" from the phonographs in various places?

Mr. Sousa. Yes, sir; and I'll get nothing for it; and I am the man that made "El Capitan." [Laughter.]

I speak in the interest of the publishers and the composers, and some of them asked me to come here because I could talk from the heart, and I do. I am sure of what I say. There may be some interests opposed to the bill for selfish reasons, but these interests know the bill simply gives us rights we are entitled to.

As to the artists, Mr. Millet said that he got $8.75 for one of his pictures. You can take any catalogue of records of any talking machine company in this country and you will find from 20 to 100 of my compositions on it. I have yet to receive the first penny for the use of them.

There is another point to consider. These talking machines are going to ruin the artistic development of music in this country. When I was a boy—I was born in this town—in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. [Laughter.] We will not have a vocal chord left. [Laughter.] The vocal chords will be eliminated by a process of evolution, as was the tail of man when he came from the ape. The vocal chords will go because no one will have a chance to sing, the phonograph supplying a mechanical imitation of the voice, accompaniment, and effort.

On this river, when I was a young man, we went out boating and the music of young voices filled the air.

Last summer and the summer before I was in one of the biggest yacht harbors of the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an Æolian, or something of the kind. They were playing Sousa marches, and that was all right, as to the artistic side of it [laughter], but they were not paying for them, and, furthermore, they were not helping the technical development of music. Go to the men that manufacture the instruments that are nearest the people—the banjo, the guitar, and the mandolin—and every one of them will tell you that the sale of those instruments has fallen off greatly. You can not develop music without these instruments, the country singing school, and the country brass band. Music develops from the people, the "folk songs," and if you do not make the people executants, you make them depend on the machines.

Mr. Currier. Since the time you speak of, when they used to be singing in the streets——

Mr. Sousa. Well, Mr. Currier, I am 50 years old——

Mr. Currier. I was just going to ask you: Since that time, the law has been passed to protect the authors of musical compositions, which would prohibit that. Is not that so?

Mr. Sousa. No, sir; you could always do it.

Mr. Currier. Any public performance is prohibited, is it not, by that law?

Mr. Sousa. You would not call that a public performance.

Mr. Currier. But any public performance is prohibited by the law of 1897?

Mr. Sousa. Not that I know of at all. I have never known that it was unlawful to get together and sing.

Mr. Currier. It probably has not been enforced to that extent.

Mr. McGavin. You think it ought to be against the law for some people to attempt to do it, do you not, Mr. Sousa? [Laughter.]

Mr. Sousa. Yes.

Mr. Currier. It is possible that that has deterred the young people from singing.

Mr. Sousa. Would you not consider it a greater crime to turn on a phonograph——

Mr. Currier. I do not consider singing a crime.

Mr. Sousa. If you would make it a misdemeanor, do you not think it much worse to have a lot of these machines going than to have a lot of fresh young voices singing?

Mr. Currier. I think a great many people in this country get a great deal of comfort out of the phonograph.

Mr. Sousa. But they get much more out of the human voice, and I will tell you why: The phonograph companies know that. They pay Caruso $3,000 to make a record in their machine, because they get the human voice. And they pay a cornet player $4 to blow one of his blasts into it. [Laughter.] That is the difference. The people, the homes, want the human voice. First comes the country singing school, and next comes the country brass band. Let us do something to help them. You can do it by making these people pay me for everything that I compose. [Laughter.]

STATEMENT OF VICTOR HERBERT, ESQ.

Mr. Herbert. Mr. Chairman and gentlemen, it is hardly necessary for me to add anything, I think, to Mr. Sousa's statement. I think he has made the question very plain and clear.

I would like to say this, that both Mr. Sousa and I are not here representing ourselves as individuals and our personal interests, but we stand here for many hundreds of poor fellows who have not been able to come here—possibly because they have not got the price—brother composers whose names figure on the advertisements of these companies who make perforated rolls and talking machines, etc., and who never have received a cent, just as is the case with Mr. Sousa and myself.

I do not see how they can deny that they sell their roll or their machine, because they are reproducing a part of our brain, of our genius, or whatever it might be. They pay, as Mr. Sousa said, the singer who sings a song into their machines. They pay Mr. Caruso $3,000 for each song—for each record. He might be singing Mr. Sousa's song, or my song, and the composer would not receive a cent. I say that that can not be just. It is as plain a question, Mr. Chairman, as it could be, to my mind. Morally, there is only one side to it, and I hope you will see it and recommend the necessary law.

Mr. Currier. Just an incident: The talking machine company that pays a singer gets no protection on that record under the law, either, does it?

Mr. Herbert. I think they do.

Mr. Currier. Could not a competing talking machine company immediately reproduce those records?

Mr. Herbert. Well, they would go for them.

Mr. Currier. I have an impression that there is no law under which they could.

Mr. Herbert. I think they would.

Mr. Currier. I think there is no protection at all.

Mr. Herbert. I know that we are not protected. Since the courts have held that the perforated roll is not an imitation of the sheet music we have absolutely no ground to stand on.

STATEMENT OF MR. HORACE PETTIT.

Mr. Pettit. I represent the Victor Talking Machine Company. While I am not here as one of the advocates or proponents of the bill, it is very fitting, I think, at this time, immediately after Mr. Sousa's and Mr. Victor Herbert's appearance, that I should state what we have to say in regard to the talking machines. It may be that Mr. Herbert and Mr. Sousa have been somewhat abused by the talking-machine companies. They, however, certainly do not show it in their appearance.

Our position is to be equitable and just in the matter. We believe that there should be protection, and we are willing that this bill, with certain amendments we have to suggest, should be passed, substantially on the lines indicated, so that the composer should have the protection against his music or his compositions being copied on a record of a talking machine; with the understanding, however, that it does not apply to subsisting copyrights. I believe that is the understanding as expressed, although there is some ambiguity in the language, and therefore I would suggest that section 3, in that regard, be modified, either by striking out the section or by adding to it. Section 3 reads (reading):

I therefore would add to that, in view of that somewhat ambiguous language:

This, I believe, is the intention of the framers of the bill, although it is somewhat doubtfully expressed. So much in that regard.

Further, gentlemen, if the talking machine companies are to pay the author and composer, as they will under this act if passed, a royalty on the copyrighted compositions, the talking machine companies should also be protected. We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, or any of the opera singers, a thousand dollars for making a record. It is perfectly possible, within the known arts, for that record, after we have made it, to be reproduced by a mere copperplating process by somebody else and copied, so that we would pay the thousand dollars or so and have no protection against the party manufacturing a duplicate of it. Therefore, not only for that reason, but for the other reasons which I shall briefly mention, the talking machine manufacturers should be entitled to register the particular records which they prepare, and that, therefore, should be included in the act.

The bill evidently is intended to cover talking-machine records, although it is somewhat doubtfully expressed.

Section 4 is the section upon which everything more or less hangs, and that is [reading]:

That is all that it says in that regard. The purport, however, is to cover substantially everything that was covered by the former copyright act. In section 18 the different things copyrighted are specified, in which section the duration of the terms are provided. Section 18 states, for instance:

Then comes a proviso, and then:

I would suggest that you include in there, on line 14 of page 14, after the word "composition," the words "any talking-machine record;" so that there would be no room for doubt but what talking-machine records are intended to be included.

For this purpose I would also amend section 5 (p. 4, lines 2 and 3) by adding between lines 2 and 3, before the word "Phonographs," the following: "(j) Talking-machine records."

I want to say one more word in that regard: The talking-machine record is a new art. At the time that the former acts were passed and the Revised Statutes it had not acquired the state of perfection in which it is to-day. The talking machine is a writing upon a record tablet—not to be read visually, but audibly to be read through the medium of a vibrating pencil engaging in the record groove. This reproduces the thing that is uttered, in the characteristic manner in which it is uttered, and therefore that particular thing ought to be the subject-matter of a property right.

For instance, we might say that a particular piece would be sung or played by some country brass band, such as Mr. Sousa alludes to. The instrumentation there of that particular piece as recorded would be as different from the instrumentation of the particular piece when played by Mr. Sousa himself, from the stage of one of the great opera houses, as could be imagined; and what should be protected there is the particular instrumentation as it is played by Mr. Sousa, as he has rendered it. The same thing applies to any orator, or any actor, or any recitationist. It is a picture of the voice, as perfectly as a photograph is the picture of a man, or of a thing; and all the personality and all the characteristics of speech of the man uttering it are there recorded.

Mr. Bonynge. Do you mean that if that lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it, so as to prevent him from giving another reproduction of the same lecture to another talking machine?

Mr. Pettit. No, sir. That would be his right. His lecture is copyrightable. He has a perfect right to copyright that in the ordinary manner, and he has the further right, if he pleases, to have it copyrighted through the means of a talking-machine record, or, with his permission, we could do so. But wherever the thing is primarily copyrighted we could not use it in any sense without his permission.

Mr. Bonynge. Yes; but after he has copyrighted it and you have got his permission to use it in your particular talking machine and have paid him whatever you may have agreed to pay him as compensation for the use of it, would you seek to prohibit him from giving that same lecture to another talking machine?

Mr. Pettit. That would depend entirely on the terms of the contract; but that is not the idea at all. It is merely the means of recording a voice, the production of a particular man or band, or instrumentation, with all the characteristics of that particular voice or instrumentation, which we think should be subject to copyright.

Mr. Chaney. Do you not think, then, if you want that sort of an amendment to section 18 that you should also amend section 4?

Mr. Pettit. No, sir; I do not think that is necessary.

Mr. Chaney. You think that includes it?

Mr. Pettit. I think section 4 is broad enough to include it. You will understand that section 4 is understood to include a photograph. It is understood to include everything which is the subject-matter of copyright.

Mr. Chaney. I was just about to ask this: Understanding that this talking machine is a new arrangement, and was invented later than the date of the original copyright law, by that very fact it might be necessary to mention it in section 4.

Mr. Pettit. Well, I assumed that the word "author," as used by the Librarian of Congress in presenting the bill, was sufficiently broad to include anything which was originated of that character: and, as interpreted by the courts, for instance in the Sarony case (111 U. S. Repts., 59), it has been decided that the word "writing" was broad enough to include a photograph, and that therefore it would not be necessary to amend section 4, provided section 18 had specifically in it the words "talking-machine record," showing that it was meant to be included. Of course I should not object to including it. I should not object at all to having section 4 amended for that purpose, but I doubt whether it would be necessary under the circumstances.

Mr. Chaney. You would be satisfied without its amendment?

Mr. Pettit. I think so, provided the talking-machine record was inserted in sections 5 and 18.

There should be no question but that the particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra, etc., independent of the composition itself, whether it is copyrighted or not, should be equally entitled to protection, as a photograph or reproduction of a work of art.

The present-day thoughts and ideas may be recorded and reproduced through this new form of writing—that is, by recording the uttered sound upon a properly prepared surface in a sound groove, by which the varied undulations of the voice are formed in the groove by corresponding undulations, lateral or vertical. Here we have a true writing of the voice, recording uttered sound, recording not only words, thoughts, and ideas, but also recording the special particular expression and characteristic method of speech employed by the person uttering the sound. In other words, we have the exact voice, with all its individuality recorded, to be reproduced through the medium of the reproducing device employing a stylus operating in the groove.

Certainly a sound record is within the contemplation of the Constitution and should be unquestionably included in this proposed new act relative to copyrights.

It matters not whether the subject-matter of the record is otherwise copyrightable or not. If the piece played is copyrighted as a musical composition it can not be reproduced on a sound record, in accordance with the bill, without the permission of the composer. A Paderewski, however, may play the copyrighted selection, and a record of his rendition of it, with all his personality and individuality thrown into the piece, should be entitled to a copyright on a sound record for reproducing purposes.

This is true, also, of the voice of a Caruso or a Melba singing either a copyrighted or uncopyrighted piece. It is true, also, as a further illustration, of the recitation by Henry Irving of "Eugene Aram's Dream." What is here copyrighted in these records is the individuality and personality of the rendition by the performer. It is the picture of the voice or of the instrumentation as, for instance, a copyrighted photograph is a picture of a person or thing.

Should another performer play the same piece played by a Paderewski the personality of Paderewski would be absolutely wanting, and the same difference between the two performances of the same composition would be in the respective sound records as would exist at the actual performance of the respective pieces. The same differences between Caruso's rendition of a selection from Rigoletto and a concert-hall singer's rendition of the same would exist in the sound record and the reproduction therefrom as would exist in the actual singing of the selection. This is true regarding the personality of every voice and instrumentation recorded.

A large portion of the selections, musical and recitational, on talking-machine records are not copyrightable or copyrighted. These records, however, with all their originality, personality of the recitationist or singer, and peculiarity of arrangement, etc., should be copyrighted, and the private competitor prevented from purloining an artistic and characteristic production.

So-called talking-machine records in this respect differ quite materially from the mechanical organ and piano for the reason that a so-called talking-machine record is an exact record of all the modulations, and all the characteristic articulations of the voice, as well as of all the characteristics of an instrumentation. In other words, it is an exact picture of all the merits and demerits of the original, and the original is reproduced with an exactness, so that frequently, at a distance, in the present perfected state of the art, the reproduction may very well be mistaken for the original.

This record of the voice and instrumentation for sound reproducing is an art which was not commercially available or perfected when the earlier copyright laws were passed, and therefore was not included.

The following were submitted by Mr. Pettit at the meeting of June 8, 1906, embodying his proposed amendments to the bill:

Senator Smoot. I would like to ask Mr. Sousa a question. I was very much interested in your statement, Mr. Sousa, pertaining to talking machines taking the place of the human voice, and I will ask you this question: If you were protected in your productions and received a royalty from the talking machines, would that lessen the use of the talking machines any and strengthen the use of the voice and the brass band and the home choir, and so on?

Mr. Sousa. I do not think so, but I think it will reduce two wrongs to one.

Senator Smoot. Then, it is simply a question of your receiving the royalty that you think you are entitled to?

Mr. Sousa. Yes, sir.

Senator Smoot. I think there are other causes besides the general use of the talking machine that account for the fact that there is less singing than there used to be. I think we do not live quite as close to nature as we used to, and that that is what used to make us sing.

Mr. Sousa. That is very true. But the more leeway you give the talking machine the greater encroachments they will make. If they are made to pay a royalty on all compositions that they use, perhaps they will not have so many bad ones in their records. [Laughter.]

Senator Smoot. That is what I intended to find out, as to whether it was simply a personal affair.

Mr. Campbell. Is not the real reason that if it protects you and other composers, there is an incentive to you to compose?

Mr. Sousa. Oh, yes; I can compose better if I get a thousand dollars than I can for six hundred. [Laughter.]

Mr. Campbell. That is the real reason.

STATEMENT OF PAUL FULLER, ESQ., OF NEW YORK.

Mr. Fuller. My original rôle, Mr. Chairman and gentlemen, was as one of the members of the Bar Association of New York, and as chairman of the committee to express to you gentlemen all the efforts that had been made and the most extraordinary result that has been accomplished from conflicting interests in getting up the framework of this bill, and to say on behalf of a number of the conferees, we will call them—the American Publishers' Copyright League, the America Publishers' Association, the National Academy of Design, the Fine Arts Federation, the Music Publishers' Association, the American Library Association, the Print Publishers, the Engraving Copyright League, the United Typothetæ, and the National Typographical Union—that they felt that a great achievement had been reached in getting the framework of this bill in its present condition. It is in such shape now that when anything is the matter with it we know where to apply the remedy. In the present chaotic condition of the copyright laws it would require an X ray to find where the mistake was and how to remedy it.

I did not intend to say more than a word, but the suggestions made by the last speaker, Mr. Pettit, are of so vicious a character—not intentionally so, but they show precisely how a good bill can be made bad—that I am going to extend my remarks for the five or ten minutes required to point out why they should not be regarded at all.

For instance, take section 3. Our friend wants to alter that, and it is absolutely unalterable if justice and common sense are to prevail. All that section says is that the copyright shall extend to all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting.

If there is no copyright subsisting to keep a man from singing my song through a phonograph, there is no harm done. If it is subsisting, he must pay the penalty, and the courts will ultimately determine that. The question is now before the courts. It seems to me strange that any court should hesitate to say that a man who not only copies my notation, but who actually reproduces the music, the sound, should not be required to pay me for that privilege. If a man engraves my music and sells it by the sheet, he is a counterfeiter, and I can get money from him and punish him, but if he does more than that—if he completes that counterfeit to the extent of the reproduction of the actual sound that the composer had in his brain when he put it there—they say he has not imitated. That question is before the courts. Do not touch it. Do not touch it. This new law makes it certain for the future, but do not endeavor to touch the past. Let the courts decide what the present law is.

I say that the present law will protect these gentlemen from that piracy—because it is the ultimate form of piracy. It goes further than the reproduction of the composer's music sheet. It reproduces the sound. So that they have taken everything from the music man when they reproduce it on the disk. Therefore I say leave this provision in the bill: "And all matter reproduced therein in which copyright is already subsisting." Do not touch it.

In section 18 my friend (Mr. Pettit) wants to have the disks copyrighted. Mr. Bonynge put his finger right on the point of that proposition, and perhaps it is unwise for me to say anything further. That is a patentable device, and it has been patented, and there is nothing original on that disk—nothing original to the company that makes that disk. The company has borrowed it or bought it or stolen it from somebody else, and they want to copyright that. For heaven's sake, let the copyright stop somewhere.

Mr. Bonynge said: "Would you prevent the man who sang into your phonograph, or talked into it, from singing or talking into any other?" Certainly not. It is not an original production. It is not the work of an author or composer or artist. There is nothing intellectual about it, except that it is scientific, and the scientific part of it is protected by his patent. The reason I am so emphatic about that is that when you endeavor to put in the ideas of patents and the protection of inventions into this law you dislocate it and disarrange it.

Senator Lattimer. The musician may memorize that music, and may entertain an audience with it, but he can not sing it into a phonograph; is that it? According to your position, as I understand it, the singer may take the music of Mr. Sousa, commit it to memory, and may stand before an audience and entertain the audience with Mr. Sousa's music and reproduce it to the audience, but he can not reproduce it in a phonograph?

Mr. Fuller. If he has paid Mr. Sousa for the privilege of that public performance. But he can not, at the same time, under the payment for the privilege of a one-night stand, sing it into a phonograph and give it to a million people all over the country.

Mr. Bonynge. And he can not give that public performance unless he has paid Mr. Sousa his royalty?

Mr. Fuller. No.

Mr. McGavin. Would not the copyrighting of this phonograph record give the musician, say Mr. Sousa, double protection? He already has the protection of the copyright on his sheet music, has he not?

Mr. Fuller. Yes.

Mr. McGavin. And he would have the further protection of the copyright of the music as it goes into the phonograph, would he not?

Mr. Fuller. No; it is the talking-machine people who want a copyright on that, and to hold it against the original composer.

Mr. Chaney. I did not understand Mr. Pettit that way.

Mr. Fuller. Mr. Sousa is entitled to it, whether he prints his music on a sheet of paper or whether he prints it on a disk; but the man that prints it on the disk is not entitled to it. That is all.

Mr. Bonynge. He has not originated anything.

Mr. Fuller. No.

Mr. Bonynge. Except that the disk is a patentable thing, and on that he has a patent.

Mr. Fuller. Yes. The bill is a compromise, and one which every lawyer here and every lawyer who was at the conference thinks he can better; but it is the best that could be had to protect and satisfy all the interests. It has been stated that perhaps none of the interests are entirely satisfied. If that is true, it is the best kind of a bill. There are only two kinds: The bill that is perfect, the one that satisfies everybody—and there is none such; and the one that satisfies nobody, because nobody has had injustice done.

Mr. Sulzer. Mr. Chairman, I move that two copies of the proceedings of these hearings be printed, one for the Senate and one for the House.

Mr. Chaney. I second that motion.

(The motion was carried, and the committee thereupon adjourned until to-morrow, Thursday, June 7, 1906, at 10 o'clock a.m.)

Committee on Patents,

House of Representatives,

Thursday, June 7, 1906.

The committee met at 10 o'clock a.m., pursuant to adjournment, conjointly with the Senate Committee on Patents.

Present: Senators Kittredge (chairman), Mallory, and Latimer; Representatives Currier, Hinshaw, Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb.

Mr. Putnam. Mr. Chairman, Colonel Olin was next upon the list of those who were to speak for particular groups in the conference. Colonel Olin participated in the conference as counsel for the American Publishers' Copyright League, and I think that he tends in his remarks to express something of the sentiments of some others of the publishing group.

STATEMENT OF STEPHEN H. OLIN, ESQ.

Mr. Olin. Mr. Chairman and gentlemen, a number of different bodies, mainly publishing and reproducing bodies, which participated in this conference, thought it proper, in view of the dignity of this occasion, the unprecedented meeting of the committees of the two Houses, that they should collectively say in very few words what they all thought of this bill, that so they could best serve the committee, so they could best provide that nothing should belittle the force of the language of the President or the clearness of the presentation as to the bill made by the Librarian.

These bodies who have authorized me to speak in their behalf in this matter are the Academy of Design, the Fine Arts Federation, the American Publishers' Association, the American Publishers' Copyright League, which two bodies include practically all the publishers of the United States; the United Typothetæ, which include all the great employing printers of the United States; the Music Publishers' Association, some forty-two music publishers who, by habit, not only represent themselves but those musicians who rely upon them for protection; the Photographers' League of America, the Print Publishers' Association, which two bodies represent largely the illustrating interests of the country; the International Typographical Union, which, as the committee knows, represents the typesetters and printers; and finally the American Library Association, wish me on their behalf to say that this bill in its present form has their substantial approval. It is understood that suggestions of modifications as to detail may be made by these organizations individually through the Librarian of Congress; and I submit their signed paper to that effect to the committee.

Mr. Chairman, it seems to me that this simple statement on behalf of these bodies carries a very strong prima facie argument in favor of this bill. The greater part of the effort of the authors of this bill has been to provide in that field of copyright which Congress has already bounded and established, and which the existing law creates, a reasonable and orderly regulation; to provide against these conflicts and uncertainties and difficulties which the repeated amendment of the law has brought about.

I think everybody would, further, be glad if there could be such a bill as most men could read with some intelligence; that would not need not merely a lawyer, but a copyright lawyer, to interpret. I think most men would be glad, furthermore, in view of the importance of international copyright, if it were such a bill as an intelligent foreigner could understand and an intelligent foreign lawyer could advise about, and such a bill as that the people who are used to it here would thereby be taught something of the general copyright law and could better understand foreign rules. But at any rate, these organizations whose names I have read to you represent, with some few exceptions, roughly, the whole body of men interested in the actual working of the law. Most of them, I think, except those who are purely authors and creators, like the arts associations, have at some time or other been on each side of a copyright controversy. In their business some of them are owners of copyrights and desire to enforce their copyright as far as possible, and most of them are also desirous at times of using literary or artistic matter which is protected by copyright, and they desire that the law shall be precise, so that they can understand their rights and not unwittingly be guilty of offense.

So, for all these reasons, it seems to me that when they come to you and say, substantially, "This law is satisfactory to us," you may be sure that prima facie there is a law here that is an improvement on what at present exists, and which, on the whole, will give a reasonable and sane regulation of this most important matter. And of course if any of them come to you with special ideas as to improvement, you will hear and pass upon them for what they are worth.

I am going to leave that without any argument, because it seems to me the fact itself is persuasive and that it must impress this committee with the substantial value of this bill that has been presented.

There is one thing which the committee will naturally scrutinize with great attention, and that is every provision of this bill which in any respect seems to extend the field of copyright as Congress has previously bounded it; that is to say, which gives copyright upon some new article, or extends the term of copyright, or gives copyright to people who did not formerly possess it, or which in any degree limits the right of the public as against the copyright owner. The bill, I think, makes no very large incursion into that region, but it is that region which, I am sure, this committee will principally wish to examine. With your permission, I shall briefly speak of those things which occur to me as to such extensions.

First of all, the bill does extend the privilege of copyright to preventing the reproduction of musical sound or spoken words by machinery. That was spoken of before the committee yesterday. All that I can say about it is that this body whom I represent, although some of them have special interests in it (and they wish to be heard on it hereafter), in general look upon the matter as the circuit court of the United States in the second circuit looked upon it in their last decision on the subject, as being a matter germane to the copyright law, relating to the same kind of rights that Congress has hitherto protected, and that they see no reason why such rights should not hereafter be properly protected; and they respectfully refer the committee, so far as their suggestion goes, to the special information and advice of those on both sides of the question who have the greatest interest in it and the greatest capacity to inform the committee in regard to it.

The Chairman. Can you give the citation of the decision that you have mentioned?

Mr. Olin. I can hand it to you. A printed copy of the decision was handed to me yesterday. It has not yet been reported.

Mr. Chaney. That was the decision that was distributed yesterday?

Mr. Olin. Yes; that is the one.

The Chairman. Unless there is objection on the part of the committee, we will have this decision put in the record.

(The decision referred to is as follows:)

Mr. Olin. The second extension or modification of the present rights of the copyright proprietor as against the public are those instances mentioned yesterday by the chairman of the House committee in regard to the exceptions to the prohibition of importation. As the law stands to-day the importation into this country of a book which is copyrighted here is prohibited, and there are certain exceptions, in the first case, of certain libraries and colleges who may import not exceeding two copies in one invoice, and individuals who may import not exceeding two copies in one invoice. This bill makes a modification of the present rule.

I would like to call the attention of the committee to the reason why the present law is as it is, and the reason why this suggestion of amendment is made. Of course, prior to 1891 there was nothing like this in the law. The law was perfectly simple, and had been perfectly simple for a hundred years. There could be no importation of the copyrighted article from abroad without the consent of the copyright proprietor. With his consent it could be freely imported. So far as I know there had never been the slightest dissatisfaction on the part of copyright proprietors or of the public with the working of that rule. As a matter of fact, it was to the interest of the copyright proprietor to bring in, I will say, the English edition of the book which he was publishing here, and to sell it—and so far as the public wanted it they always got it—at his shop or at other shops, through the regular channels of trade, so that the public and he alike were perfectly satisfied.

Mr. Currier. Were there any importations before 1881?

Mr. Olin. Before 1891? I think there were.

Mr. Currier. With the consent of the copyright proprietor?

Mr. Olin. I think, as a matter of fact, if you went into a bookstore you always found and could buy, at a somewhat higher price——

Mr. Currier. That is not the question. Were there any importations of such books?

Mr. Olin. There were, by the copyright proprietors, who put them on sale and sold them through the trade.

Mr. Currier. Importations solely by the proprietor of the copyright—not by individuals?

Mr. Olin. Yes, sir; not by individuals. Congress undertook in 1891 to do two things: First, to admit to the privileges of copyright the foreigners resident in certain countries; and, second, to require that the manufacture of copyrighted books should be by American typesetters and plate makers here in this country. And they undertook to do these things with the minimum changes in the language of the statute. They inserted a few words in one section, and then a few words in another, and both of the desired results were brought about, just as they exist to-day. Then, in the last part of the discussion in Congress, as I remember it—and I am open to correction as to the historical account—it became apparent that the typesetter was not duly protected if only those changes were made, for the reason that the copyright proprietor, having the free right to import books from abroad, might perhaps comply with the typesetting clause colorably only, in an imperfect way, and might satisfy the public demand for his books by importation of those set up and printed abroad. Therefore, at the typesetters' request, there was imposed a prohibition of importation which affected the whole world, including the copyright proprietor. Nobody could import books.

Mr. Currier. That was a perfectly satisfactory provision.

Mr. Olin. That was a perfectly satisfactory provision, both to the copyright owner and to the typesetter; but then the general public were heard, and they said "no;" an English edition may be better than an American edition, for one reason or another, and you must not deprive us of the privilege of getting the best books. Libraries were heard, and individuals were heard. And Congress then hit upon this expedient, which was very simple and on the whole has been very effectual. Congress said:

The sections of the tariff act referred to enumerated a certain number of classes which Congress had thought were worthy of benefit from the Government to the extent of allowing them to import books in limited numbers free from duty. So there was ready-made for the hands of Congress a certain list of people who import books who might be allowed to benefit at the expense of the copyright proprietor, just as they had been theretofore benefited at the expense of the customs. That is the law as it stands to-day.

Then Congress added this further provision, that any individual also shall be allowed to import not exceeding two copies in one invoice on payment of the duty thereon, for use, and not for sale.

Like every other provision of a law after it has been duly tested by use, it is fair to bring it before the legislature again and to call attention to its results, and that is especially true where the provision of law was necessarily adopted with haste and was obviously a mere expedient for arriving at a wished-for result. And when this conference convened the publishers said: "To some extent this section has worked badly in certain ways," which I shall now point out. The librarians in libraries and the colleges have generally availed themselves of this privilege, being coupled with the privilege to import without the payment of duty, and have imported copyrighted books in those ways in large numbers. How far individuals have availed themselves of their privilege it is impossible, or at all events would be difficult, to tell; probably not to any great extent. The number of men who care so much for an English edition of a book that they are willing to write for it to a London bookseller and import it themselves is not very large.

So far as it goes, the privilege of importation is an inroad on the rights given to the copyright proprietor. It is an inconsiderable inroad so far as most popular books—novels and the like—which have circulation are concerned. The few hundred books that come to individuals here amount to not a very substantial burden upon the proprietor of such copyrights. But there are certain classes of books, expensive to produce, and with a very limited circulation—books of a scientific character, books illustrated with plates—and they circulate among the precise classes; that is, the libraries and the colleges and these individuals who are particular about their libraries, the precise individuals who import books under these exceptions; and there were instances brought before the conference where publishers here had declined to undertake a book which would have been valuable to the public, which would have been valuable to the typesetter to set up, and the American publisher to bring out, and to the American bookseller to sell, for the reason that the very limited public which these books addressed would all, in the natural course of events, have their demands filled through these exceptions to the prohibition of importations.

That did not hurt the libraries or the individuals who habitually get English editions. It did hurt, we maintain, the American public, the reading public, and a great many individuals among the American producing classes. So that there was a modification requested of the present rules, and the modification in regard to the libraries is this: There is to be not exceeding one copy to be introduced on an invoice, the privilege is not to relate to books which have their origin here in America. With your permission, I will briefly explain those two points. In the first place, ordinarily a library or a college needs only one book at a time. If it needs another copy of the same book it is not too much to ask that it make another importation to bring it in. Under the present rule, while delicate and careful men would not take advantage of it, it is constantly a temptation to a librarian who can import free of duty and free of the copyright proprietor's claims, two copies of a book from England, to import one for the legitimate use of the library and one for some other use. The effect of that influence can not be particularly measured.

The other point is one which can be clearly understood. It is now the right of colleges and libraries, an important right, that in case of an English book they should be able to get the English edition, which in some instances is more complete or for other reasons better than the American edition. But it can almost never be an important right to obtain the English edition of an American book since the American edition is almost always more complete, or equally complete. So that the right to import the foreign edition of an American book, a book of American origin, would ordinarily be confined to the Tauchnitz and the like editions with which the gentlemen of the committee are all familiar, where a continental publisher publishes English and American books for the benefit of travelers, and they are not allowed to be reimported into England or America. It seems to the publishers fair that the same rule which applies to every Englishman and every American as to such Tauchnitz editions should be applied to libraries; that is, that they should get the American edition, and not the other, of which the only advantage is cheapness, arising from its special purpose.

Whether or not these are reasonable changes has been very largely passed upon, it seems to me, in the controversy that has gone on with the American Library Association, which is a very powerful and very diligent and active association, and which has been very much interested in these matters; and in laying before you their approval of the bill in its present shape, it seems to me that as to this clause it must establish in the minds of the committee a clear prima facie case, at least, that this compromise that is agreed upon is a reasonable compromise. There are gentlemen here who represent certain libraries who, I understand, think that it is not a reasonable compromise.

Mr. Currier. That minority is a very strong one, is it not?

Mr. Olin. I think it is a strong one; and they undoubtedly will be heard. They object that this compromise goes too far; and all that we can reasonably ask the committee at this moment is that if it occurs—if it seems to the committee that what this minority of librarians have to say overcomes the presumption of fairness that arises from a compromise satisfactory to the majority—that then the publishers may have their opportunity of showing to the committee that it is a fair compromise and a reasonable disposition of the matter.

Now, we come to the next clause of these exceptions.

Mr. Currier. Just an instant. Would the people you represent object seriously to an amendment to subdivision 3, on page 16, which would strike out all after the words "United States" where they occur?

Mr. Olin. On page 16?

Mr. Currier. In the tenth line of subdivision 3.

Mr. Olin. Are you reading from the printed form of the bill?

Mr. Currier. The library print.

Mr. Chaney. Section 21?

Mr. Currier. I have not compared them. I have been using the library print all the time.

Mr. Chaney. Just take the other bill.

Mr. Putnam. Section 30 of the bill.

Mr. Chaney. Page 24 of the Senate bill.

Mr. Currier. Now, strike out all after the words "United States," in the twenty-fifth line, down to the fourth section.

Mr. Olin. I am now speaking merely for the publishers, whom I do represent generally, and not for these other associations.

Mr. Currier. I was simply asking if the people whom you represent would make serious objection to that amendment.

Mr. Olin. Speaking only for the publishers, I think they would. I think they would wish to be heard fully on that before any such change was made.

Mr. Currier. Right in that connection, let me call your attention to the first subdivision, beginning on line 13, which deals with the importation for an individual.

Mr. Olin. On what page?

Mr. Currier. Page 24, line 13.

Mr. Olin. Yes.

Mr. Currier. We would understand, would we not, that that was a practical prohibition of importations by individuals?

Mr. Olin. No, sir.

Mr. Currier. Do you imagine that a book would ever be imported by an individual under that provision?

Mr. Olin. I should think they would be habitually, and to a much larger extent than at present; and I will give you my reasons for it.

Mr. Currier. Would it not be a considerable inconvenience to secure the permission of the proprietor of the copyright?

Mr. Olin. I should think none at all.

Mr. Currier. We would be glad to hear you on that, because it occurred to me that that was an absolute prohibition, in effect.

Mr. Olin. I am glad to have my attention called to this, because this is a matter where we have not been able to make any compromise. There are no representatives of the public who could discuss such a compromise, and we come before the committee to submit it to their judgment as to its fairness in the first instance.

What I want to call the attention of the committee to is that the effect of this is simply to put the business back, as to importing one copy, to the condition that existed before 1891 as to importing all copies. We would be very glad, the copyright proprietors would be very glad, and the public would be very glad if it could altogether go back to that condition; that is, if you say books shall not be imported without the consent of the copyright proprietor. The copyright proprietor would then, as he did before, import books and put them into the trade and sell them freely.

Mr. Currier. Yes; the proprietor would import, but I think, in answer to an inquiry a few moments ago, you said that under the former law individuals did not import.

Mr. Olin. No; but they did not need to.

Mr. Currier. Under that provision beginning on line 18, while the proprietor might import, do you think an individual would ever import—go to the trouble of getting the consent of the proprietor?

Mr. Olin. I think the practical working of that would be just this——

Mr. Currier. I am only asking for information.

Mr. Olin. The practical working would be this: Scribner & Co. would publish here a book which was also published in England. An individual would wish to get a copy of it in the English edition, and he would either go to the Scribners' store, or write to him, or he would go to his bookseller, who would send word to the Scribners, asking that a copy should be imported for that individual through Mr. Scribner, and Scribner would import it for him. That is to say, the individual would have far less difficulty, wherever he was situated throughout the country, in getting the English edition of the book than he has at present, when he himself writes to an English bookseller in London and imports it himself.

Mr. Currier. I am not expressing any opinion at all as to the correctness of that proposition, whether the individual should not be prohibited from importing.

Mr. Olin. My point is that the facility with which the individual would obtain an English edition of an American copyrighted book would be greatly increased by the passage of this bill, because it would put it in the regular course of business, just as it used to be before 1891, for the owner of the American copyright to see to those importations. The law would not allow the proprietor himself to make the importations, but he would be exceedingly glad to import that book for A, B, C, D, and E, all over the country, and to make it just as easy as it was possible to do for them to get that English edition.

Mr. Currier. I am not at all sure that that is not so, but I think you agree with me that the individual himself, under that provision, would never directly import a book.

Mr. Olin. I think he would not.

Mr. Currier. The proprietor would always do it for him.

Mr. Olin. It would be so much easier for him to make the proprietor his agent, and the proprietor would be so glad to act as his agent, and it would be so much to the interest of both parties that that should be so that that would be naturally the course that it would take.

Mr. Hinshaw. Under existing law is the proprietor of the American copyright seriously injured by these importations?

Mr. Olin. In ordinary cases, as I said, he is not seriously injured—that is, in the case of popular books he is not substantially injured at all. He does not know how much he is injured, because there is no means of estimating the precise amount. It is an injury, but how great he does not know.

Mr. Hinshaw. It is a sufficient injury, so that you think it ought to be restricted?

Mr. Olin. It is a sufficient injury, especially in the cases that I have spoken of, where valuable books that cost very much to produce and that have a limited field of sale are in question, and there it does repeatedly prevent such books from being published in America.

Those are the only two limitations which affect the general public until we come to this provision of the bill which increases the term of the copyrights in different cases. As to them, of course the main argument is made by the producer, the author, or artist. He is the one who wants that addition to the term, and it is a matter of no great importance to these general organizations of reproducers whom I represent, one or two of them permanently and some only for the moment. But we may fairly make these observations: First, I repeat what was very clearly put by the Librarian yesterday, that the copyright is simply in the form of an idea, as the patent right is in the idea itself, and that consequently there is never like oppression to the public from the monopoly.

If I have a patent on a needle with the eye in the point, nobody in the country can use that until my patent is out, and that is a great oppression. If I write a book about a needle with the eye in the point, or about anything else under the sun, my idea, for what it is worth, is at everybody's disposal when my book is published. He can not copy my form, but whatever good the idea does him in his own thinking or his own work he has. That is the first consideration which has always actuated Congress and all governments, so far as I know, in making the copyright term much more extensive than that of the patent.

Then the next is a practical consideration which I think must be within the knowledge of every member of the committee, and that is that for practical purposes in most cases the public gives up nothing by extending the term, for the reason that at the end of forty-two years a very great majority of copyrights—I hesitate to say how large the majority would be—has become worthless. As a matter of fact, it is familiar to every member of the committee that people do not reproduce books that have fallen into the public domain by the expiry of the time of the copyright, except in very special cases of particularly popular works. So that in most instances the public would not be giving up anything really in adding to the end of this term a certain number of years.

Then, next, there is the consideration that in practice it is true that the public does now get the fullest opportunity to buy cheaply (which, I think, must be the only interest of the public as distinguished from the interest of the different producing classes) because books start at a certain price and at the end of a year they go down below that price. At the end of two years there are new editions at perhaps half the price, and in a very few years the publisher is making every effort to attract the public by every reduction that is possible.

There is one other consideration that I think may possibly be alluded to, and that is that since this term was fixed, partly by the improvements of science and partly by changes in legislation, the actual value of a given term of copyright has diminished. Part of the value of a term of copyright was always that at the expiration of the term the owner of the copyright had the plates and had the books and could compete to great advantage with other people. His right, his privilege in that respect, has been largely taken away by these photographic processes which have come into use. It is not necessary for the man who wishes to publish a book to go to work and have type set for it. He simply takes the existing edition and he photographs it, and he does that with great cheapness. Perhaps there would be an answer to this suggestion that the public should have the advantage that would come from all such cheapening processes; but it seems to me that it could reply that Congress has prohibited the copyright owner from taking advantage of these processes, by saying that he at first must make his book, as long as the copyright exists, in the most expensive way, from plates made by American mechanics and who receive American wages; and consequently that he is handicapped from the beginning.

I do not wish to press this argument unduly. It is something, it seems to me, that may be suggested to the committee, whether or not this committee is now to act with the same liberality which Congress showed when the existing term was fixed, if it would not necessarily in some degree extend the term by reason of the facts to which I have referred.

There is only one other, so far as I know, important extension of the right of copyright contained in this bill, and on its face it appears to be a matter of inadvertence. It is contained in section 8, where there are provisions A and B, on page 5. The present law of copyright allows a foreigner to take out a copyright if he is a resident in the United States, or if he is a citizen of one of those countries which allow similar privileges to citizens of the United States. Those are the two categories.

At first glance at A and B, in section 8, it would appear that those were intended to represent the same classes and to give precisely the same rights; but, apparently by inadvertence, in the second line of subdivision A the word which should, I think, be "and" has become "or," so that as it at present reads a foreigner, no matter where he lives, no matter whether the country of which he is a citizen gives similar rights to citizens of the United States or not, may, if he shall first or cotemporaneously publish his work within the limits of the United States, have a copyright. I am not here to say that that would not be a wise extension of the law. I am not here to say on behalf of any of the parties whom I represent that they would or would not oppose it. I do not know anything about their views. This extension of copyright is not an extension which has been discussed in the conference. I have no right to give any approval of it, even to the limited extent that I have a right to give an approval of this bill on behalf of any of these bodies whom I represent.

Mr. Bethune. Would not the interest of the publishers be safeguarded if the law provided that an individual may import one copy of the foreign edition, but only after he has asked the proprietor of the American copyright to buy one for him and his request has been refused?

Mr. Olin. If the committee chooses to put that in, I can see no harm in it at all. It seems to me that it will result in that, necessarily, if the American publisher is not actuated by his own interest, as he used to be prior to 1891, and as I think he would be again, and if he is not glad to import that copy from abroad. If he refused I think if anybody who is aggrieved should come to Congress, Congress would change the law instantly and compel the copyright proprietor to give consent; and if Congress thinks it right to put in that provision in the beginning nobody could complain. So that my answer is that I do not think anybody would object.

Mr. Johnson. I would like to ask if an American citizen traveling in Europe should at the time he was there purchase one of these editions, would it not be a hardship on him to compel him to forego the bringing of that copy into the United States without the consent of the American proprietor?

Mr. Olin. Is that question addressed to me?

Mr. Johnson. Yes.

Mr. Olin. If a hardship, it is inflicted by the English custom-house at present in regard to these very Tauchnitz editions. It is one of the few things they are rigorous about, and I think members of this committee may have had experience with the English customs and their rule about that. But in this bill it is provided that where there are parts of libraries or books in baggage brought back by traveling people they shall be admitted. I think it is a question of de minimis. I think in the case of a man bringing back such a book it would be no hardship worthy of the consideration of Congress.

Mr. Johnson. All personal baggage is included also?

Mr. Olin. Yes.

Mr. Putnam. For the information of Mr. Johnson, Mr. Chairman, I think that Mr. Olin was referring, in answer to that question, substantially to subsection 4, on page 25, which was supposed to take care of the person bringing in copies in his personal baggage.

Mr. Ogilvie is here from Chicago, but before his statement is made I wish to say that, as I understood, Colonel Olin spoke in two capacities; in the first place, giving some general expression in behalf of a certain group of organizations, and their substantial acquiescence in the bill; in the second place, as counsel specially for the book publishers, with reference to certain particular provisions, particularly this importation clause.

Mr. Olin. Yes; and, finally, I wished merely to modify the general approval of the bill which I had given on behalf of all these organizations, by expressing my understanding that they considered the bill, as I supposed was intended, with "and" instead of "or" in the second line of subdivision A, in section 8, on page 5.

Mr. Putnam. In that latter capacity, the provisions of the bill as to which Colonel Olin spoke were those as to importations particularly affecting the interests of the libraries; and, considering what will be most helpful to the committee, it would seem to me appropriate, and I submit it as a suggestion, that as soon as possible after the statement that you have had from Colonel Olin in explanation of those provisions you have the statement from representatives here of the group of libraries—librarians—that would dissent from the provision. Mr. Cutter is here, and, if I understand him rightly, his statement will be brief. Mr. Ogilvie, however, had been promised an opportunity to be heard early this morning. As I understood him, the oral statement that he proposes to make is an objection to certain provisions of the bill, and that he would be content with an opportunity for a ten-minute statement, to be supplemented, if he chose, in writing, to go into the record.

STATEMENT OF GEORGE W. OGILVIE, ESQ., OF CHICAGO.

Mr. Ogilvie. Mr. Chairman and gentlemen of the committee, as I understand that this bill is to take the place very largely of the copyright act of 1891, it may be proper to refer to some of the arguments that were advanced at that time as to why that particular bill should pass. In furtherance of that idea, I read from The Question of Copyright, by George Haven Putnam, on page 103, in which it is said:

I submit that if an additional cost of 3 cents is to go into paper, print, and binding, and will produce a book that is 100 per cent better than the 20-cent book, and 2 cents of the increased price is to go to the author, that the publisher would receive no benefit whatever; and it is well to bear in mind that the disinterested patriots who requested the passage of the international copyright law did so for the purpose of benefiting not themselves, but the author of a book 2 cents per copy, and the producer of paper, printing, and binding 3 cents per copy, out of which they got nothing. It is the same gentlemen, as I understood it, who were sponsors for that bill who are the sponsors for this. Twenty cents per copy for a book costing 3 cents to produce shows a profit somewhere of 666 per cent; and it is probable that they were satisfied with that percentage. As a basis for further remark along that line, I desire to draw your attention to section 13 on page 6 of the bill, as I have it here.

Mr. Putnam. That is the library copy.

Mr. Ogilvie. It is section 13 of the third paragraph [reading]:

The Chairman. For whom do you appear, Mr. Ogilvie?

Mr. Ogilvie. For myself as a publisher and for several other Chicago publishers, none of whom were represented at or invited to the conferences of which this hill is the result.

Mr. Chaney. Had you no notice that there was going to be a conference?

Mr. Ogilvie. The first information that I had that there was a conference was from a gentleman representing Lyon & Healy, of Chicago, in the Manhattan Hotel in New York, last November. That was the first intimation I had that there had been a conference. I knew that there were likely to be some, but I had no notice of their dates.

Mr. Chaney. We wanted you as well as everybody else.

Mr. Ogilvie. I knew nothing about it. I may say, also, that the first draft of this bill that I have seen was received in my office in Chicago Saturday morning last.

Again, on page 18 of the bill, section 25:

It seems to me a little out of order for the gentlemen who are sponsors for this bill to make it possible for them to get a copyright on a book, and if they are not caught in making a false affidavit in securing it, that a man shall go to the penitentiary for a year for pirating that particular book. It will be rather difficult for one to prove, after a number of years, that a publisher who has made an affidavit to secure a copyright to which he really was not entitled had committed perjury in connection with the securing of that copyright; but the question as to one's piracy of the book is open and "he that runs may read." It seems to me that there is a punishment there that they have applied to the wrong crime. If the man who makes a false affidavit were to go to the penitentiary for the year, I think it would protect the interests that desire protection in this country, in the form of labor, in the matter of setting up and manufacturing books wholly within the limits of the United States.

The Chairman. Do I understand you to contend that the Librarian should be charged with any special duty in that regard, for the registry of the copyright?

Mr. Ogilvie. No, sir; the Librarian can not determine whether a man is making a false or correct affidavit, but if one makes a false affidavit he is the man who should go to the penitentiary and not the individual who pirates his book.

Mr. Bonynge. Does not section 13 provide that the man who makes the affidavit shall be guilty of a misdemeanor?

Mr. Ogilvie. Yes; and the penalty therein provided is, "he shall be fined not exceeding one thousand dollars." That is all.

Mr. Currier. What is your suggestion?

Mr. Ogilvie. That you change the punishment.

Mr. Currier. And make it a penitentiary offense?

Mr. Ogilvie. Let them both go to the penitentiary, if either one goes.

Mr. Currier. In both cases?

Mr. Ogilvie. In both cases, if necessary. Do not eliminate the publisher. I am a publisher, but if I have made a false affidavit, there is no reason why the man who pirates my book should go to the penitentiary and I should only have to pay a fine, if I am caught. I see no reason why a man should go to the penitentiary in either case, really. He may unwittingly infringe the copyright of a book.

Mr. Currier. This says "willfully."

Mr. Ogilvie. That is subject to the construction of the courts. We all know what that means.

Mr. Currier. No; it puts the burden of proof on the Government to show it beyond a reasonable doubt.

Mr. Ogilvie. The proof of the perjury should also be beyond a reasonable doubt and the one guilty of it should be equally punished.

Mr. Chaney. If he did it unwittingly it would not be willful, you know.

Mr. Ogilvie. It is impossible for a publisher to make an "unwitting" affidavit of that sort. The publisher knows where the article that he is publishing is manufactured. I have been a publisher for a great many years, and I know where the articles that I am turning out are manufactured. It is possible for him to make an affidavit that is literally and absolutely true in regard to the place of manufacture of every article that he produces.

Senator Mallory. Where he willfully makes a false affidavit it is equivalent to perjury, and the penalty for that is generally imprisonment in the penitentiary.

Mr. Ogilvie. Then why change the penalty in this law? It certainly limits his liability under this act.

Mr. Currier. There is not any liability at all. No affidavit is required. There is no penalty for a false statement at all under the law now.

Mr. Ogilvie. Not as it is at present, but as this new law proposes it there is a liability.

Mr. Currier. This was a bill that passed the House last winter and was not reached in the Senate.

Mr. Ogilvie. Well, the facts are here.

The Chairman. It was reported favorably by the Senate committee.

Mr. Currier. Yes; and not reached.

Mr. Ogilvie. Section 19, the last portion of that section, reads:

Mr. Putnam. That provides for the extension of the existing copyright for an additional term.

Mr. Chaney. What is your suggestion on that?

Mr. Ogilvie. That the gentlemen who framed this bill, and who wished to let themselves out of the penitentiary for committing perjury, would be likely to make a very liberal arrangement with the author, or his widow or children, if it was within his power to refuse to consent to a renewal of a copyright. He may have been paying a royalty of 20 per cent, and when the time came for securing a renewal of the copyright he would be likely to say, "I will give you 1 per cent, and if you do not agree to that I will not join the request for an extension of the copyright." I think that is wholly beyond the province of this act.

Mr. Chaney. Whose consent should be required?

Mr. Ogilvie. Eliminate the publisher. He has no concern with it. The Constitution does not grant him any rights under the copyright law. He is not the "inventor" or the "author." Eliminate the publisher wholly, unless you desire, in case there may be an investment there that the publisher desires to protect, to let the author take care of that by contract, so that at the expiration of the copyright the publisher may have the right to continue the publication on the payment of the same royalty.

Mr. Currier. Can you suggest an amendment to carry out your idea in the matter?

Mr. Ogilvie. Yes, sir.

Mr. Chaney. You are really talking against your own interests as a publisher just now?

Mr. Ogilvie. I am, absolutely, talking against my interests as a publisher.

Mr. Sulzer. Do you contend that this provision would apply where the publisher had no interest in the publication beyond the ordinary time of copyright?

Mr. Ogilvie. That is all; it shall apply only to that case.

Mr. Sulzer. I construe this provision in here to be just what you say.

Mr. Ogilvie. No; I read it differently from the way you do, and place a different construction upon it. We will again refer to it and see if I am wrong. If I am wrong, I shall be glad to be put right, and if you are wrong, I know that you will be glad to be put right.

Mr. Sulzer. It says here unless the assignee or licensee shall join in the application. If a man is an assignee or licensee he has an interest in the copyright.

Mr. Ogilvie. He takes it for the time limit only.

Mr. Sulzer. If he is not he has no interest, and would not have to join with the widow or children in this application for an extension of the copyright.

Mr. Ogilvie. But if he is the assignee or licensee then he is interested in it only during the life of the copyright.

Mr. Sulzer. I do not understand it that way.

Mr. Hinshaw. How could the licensee have any interest in the copyright beyond the life of it?

Mr. Sulzer. He would have an interest in it so far as it could be extended.

Mr. Ogilvie. Why should he?

Mr. Bonynge. He has not. There is no provision now for the extension, and he would not have, except as he might get it under this bill.

Mr. Campbell. He would provide for that in his contract.

Mr. Ogilvie. Yes. Leave it out of the law.

Mr. Campbell. When the assignment was made, he would provide for all extensions.

Mr. Ogilvie. That is right.

Mr. Hinshaw. Are these contracts for royalty made to include a possible extension of the copyright?

Mr. Ogilvie. Not generally; because the author may be dead when the time for the renewal comes.

Mr. Currier. But it can be renewed then by his widow.

Mr. Ogilvie. But they do not do it generally.

Mr. Currier. I should suppose that in almost all cases under the existing law they would get a renewal.

Mr. Ogilvie. They do at times, but not often.

Mr. Sulzer. I think I understand what you mean, and that is this: That where there is no subsisting contract, then that the publisher shall not join——

Mr. Ogilvie. The publishers shall not be required to join.

Mr. Sulzer (continuing). In the application for the renewal of the copyright?

Mr. Ogilvie. Yes. As this is, it makes it impossible for the author or his widow or children to secure the extension of the copyright without the licensee joining. Then he has it in his power to diminish the royalty paid to suit his own purpose.

Mr. Campbell. If the contract for the copyright does not provide as between the author and the publisher for any renewal, what position would you be in then?

Mr. Ogilvie. According to this law it is impossible to get a renewal unless the licensee joins in the request.

Mr. Campbell. The license expires——

Mr. Ogilvie. But the license does not expire until after the copyright expires.

Mr. Campbell. What is the length of your contract that you usually make?

Mr. Ogilvie. This is a new provision entirely.

Mr. Campbell. Under the old law, I mean?

Mr. Ogilvie. Under the old law it usually lasts as long as the copyright lasts.

Mr. Chaney. You suggest that we leave out this last proviso absolutely?

Mr. Ogilvie. Yes, sir.

Mr. Bonynge. Not to leave it out absolutely——

Mr. Ogilvie. I think it should be left out altogether. It is wholly unfair to an author. I can see no reason why the publisher should have any right of that kind. The Constitution grants the right to an author, and if the publisher desires to secure those rights that is a matter of contract. Let him make a contract covering that point.

Mr. Hinshaw. If the copyright had been assigned, the original proprietor would have lost all interest in the copyright; would he not?

Mr. Ogilvie. The party who now takes a copyright takes it with the understanding that it shall expire at a certain time; and then he is in no better position and no worse than any other publisher who has not had a contract with the author.

Mr. Chaney. Suppose your contracts under this bill, should it become a law, should provide for the life of the copyright, together with any extensions thereof—then what would you say as to the proviso?

Mr. Ogilvie. Suppose the bill should provide for the life of the contract, together with any extension thereof?

Mr. Chaney. Suppose under this bill, should it become a law, your contracts with the author should provide for the license and assignment to extend the copyright during its life and all extensions thereof?

Mr. Ogilvie. If the author wishes to make a contract of that sort, that is the author's business; but let the author thoroughly understand what he is doing. As it is here, the author may think he is entitled to the license for a renewal term, whereas he finds the publisher has it wholly within his hands. The publisher is not entitled to it; it is not his.

Mr. Sulzer. After all, it resolves itself down to a mere question of contract?

Mr. Ogilvie. Yes; but this eliminates the necessity for making a contract, because this gives certain people rights.

Mr. Sulzer. Only where there is a subsisting contract, however.

Mr. Ogilvie. But the contract as at present expressed is for the life of that copyright.

Mr. McGavin. The life is fourteen years?

Mr. Ogilvie. Twenty-eight and fourteen. Now, then, let us assume, under this section, that a copyright expires next year. Let us assume that this bill passes, that a copyright expires next year, and that I am the author of a certain book. I go to my publisher and say: "Here under the law I am entitled to a renewal of the copyright for my book for a term of fifty years in all, or during my life, or whatever the term may be." The publisher replies: "Very well; you want me to join in the securing of that extension, do you?" "Yes." "Well, I have been paying you 20 per cent royalty; I will pay you 2 per cent hereafter, and if you do not take that I will pay you nothing." Is it impossible to suppose that some publishers would do that when they carefully provide against going to the penitentiary for committing perjury? I think not.

Another point: in section 15, in the last paragraph, this language appears:

Now, let us see where that lands us. How have the public any means of determining whether "the bulk" of the books has contained a notice of copyright? Assume that I get hold of a book that contains no notice of copyright, and as a publisher I reprint it. It may have been an expensive book to reprint. It may have cost me several thousand dollars. What provision is there in this law to reimburse me for having innocently done that which, under the law, apparently I had a perfect right to do? Not any. I think there should be some provision to reimburse a man who does a thing of that kind under an apparent right.

Mr. Chaney. This is not a case of ignorance of the law; you think it is a case of ignorance of fact?

Mr. Ogilvie. Ignorance of fact. You are not obligated at present to go to the Copyright Office to ask any questions. The book itself is supposed to present all evidence of existing copyright.

Mr. Chaney. Could you not obtain that information at the office of the Librarian?

Mr. Ogilvie. In regard to that as arranged at present, just to illustrate the point, I will state that I printed a book in Chicago, an English book, apparently published in England, containing no notice of American copyright. I spent several thousand dollars in getting the book out, and have spent several thousand dollars since then in lawyers' fees. The point was this: The book was published under one title in the United States and under another title in Great Britain. It contained no notice of American copyright.

In an excess of caution I communicated with the Librarian of Congress asking whether a copyright existed on that particular book, by title, in either the name of the English publisher or the name of an American publisher, whose name also happened to be on the title-page of the book; and I was informed that no copyright existed. I reproduced the book. Judge Kohlsaat, in the Federal circuit court of Chicago, decided that I was strictly within my rights. The circuit court of appeals reversed his decision and has refused a rehearing, and we must, consequently, take the matter to the Supreme Court. Now, I claim that under the law a man who does that is entitled to compensation.

Mr. Putnam. Excuse me just a minute, Mr. Ogilvie; will you permit, Mr. Chairman, the register to say a word?

The Chairman. Certainly.

Mr. Putnam. It is simply in answer to Mr. Ogilvie's intimation that he answered his inquiry, and that his inquiry was whether a copyright existed upon that book. What was the answer that he got from the office of copyright?

Mr. Solberg. The only purpose in making any remark on that point is that there shall not be a misunderstanding as to the nature of the replies to such inquiries. Any matter of fact on record in the copyright office is always at the disposal of any inquirer, but the copyright office is very careful not to undertake to state the termination of any copyright. It simply gives facts as to the registration of title or whether it has discovered any. In fact, it is very careful not to say even that there is no registration, but that the indices of the office and the records of the office after careful search do not disclose any.

Mr. Chaney. Mr. Ogilvie is substantially right in his statement, then.

Mr. Ogilvie. And at this time I wish to publicly thank Mr. Solberg and Mr. Putnam for the uniform courtesy with which they reply to all inquiries that are addressed to their office. The gentleman is quite right. That was exactly the phraseology used in his reply. But that, I beg to submit, is the only source of information that publishers have; and when they get that sort of information they are justified in proceeding along lines indicated thereby.

I say that every edition of a book that is copyrighted under the United States law should contain notice of copyright, irrespective of where it may be printed, and thus give the public due notice.

Senator Mallory. Let me ask you in regard to that instance that you speak of in your experience. That book had two different titles, you say?

Mr. Ogilvie. Yes, sir.

Senator Mallory. That is, there was an English publication under one title and an American publication under a different title?

Mr. Ogilvie. Yes.

Senator Mallory. Were they identically the same book?

Mr. Ogilvie. No; not identically the same book, even.

Senator Mallory. Which title did you publish under?

Mr. Ogilvie. Under the English title.

Mr. Sulzer. Was the subject-matter different?

Mr. Ogilvie. The subject-matter was different. A portion of it, consisting of some 500 pages, was alike, but a considerable portion of it was different.

Mr. Hinshaw. The English book was copyrighted in the United States?

Mr. Ogilvie. The American book was copyrighted in the United States. The English book contained no notice of copyright, and I may go further and say——

Mr. Sulzer. Did you publish the English book?

Mr. Ogilvie. We published the English book. I may go further and say that the American publisher, by contract, agreed to the elimination of the American copyright mark; and he did that for this reason: The people who live in Great Britain refuse to buy, if they can avoid it, American books. I have had opportunities to sell several thousand copies of my copyright books, provided I would leave out of them the American copyright notice. I have in my office in Chicago at the present time a great number of American copyright books that have been printed in the United States and sold to publishers in Great Britain, who required the elimination of the American copyright notice; and the American publishers were foolish enough to comply with that request, thereby, in my humble judgment, vitiating their copyright. I say that in the case of an American copyright book the public are entitled to be informed, not merely by the insertion of the word "copyright," but by the insertion of the word "copyright," together with the date on which the copyright was taken out and the name of the person who took it out, exactly as the law is at present. It is not enough to simply substitute the word "copyright;" it means nothing.

Mr. Currier. Suppose in the case you have referred to you began to publish this book without any knowledge that it was protected by copyright? Could you not go right on and publish and sell that book?

Mr. Ogilvie. The courts have enjoined me.

Mr. Currier. If this law is passed, could you not do that? Let me read it. (Reading:)

"It's omission"—that is, notice of copyright—"by inadvertence from a particular copy or copies, though preventing recourse against an innocent infringer without notice."

You are an innocent infringer; you can go right along and dispose of the books. That is your case; that is your defense in any proceeding against you for selling these books.

Mr. Ogilvie. Yes.

Mr. Currier. But it does not invalidate the copyright as against all others, nor prevent recovery for an infringement against any person who, after actual notification of the copyright, begins an undertaking to infringe it.

Mr. Ogilvie. Well, will you tell me what this means—"shall not invalidate the copyright?"

Mr. Currier. Why, the copyright exists as against everybody but you in that edition of the book.

Mr. Ogilvie. Very well, if that is the case.

Mr. Currier. But if this bill passes, you would have a right to go on and complete the edition of the book and sell it.

Mr. Ogilvie. If that is the construction that the courts give it, very well.

Mr. Currier. There can not be any doubt about the construction. It is only the man who, after actual notice that the copyright exists, begins an undertaking to infringe it who is affected.

Mr. Ogilvie. I read that section very carefully, and I see the point that you raise; but I could not——

Mr. Currier. I think this gives you full protection.

Mr. Ogilvie. I could not get over the statement, however, that it did not invalidate the copyright.

Mr. Currier. But it does not invalidate the copyright.

Mr. Ogilvie. As applied to everybody else?

Mr. Currier. To anybody who has notice before he begins.

Mr. Ogilvie. Very well. Now, then, with regard to the insertion of notice, to get back to the subject, I consider that the insertion of the notice is essential. If we are ashamed of the United States, if we must cater to England, and France, and Germany, and other nations by the elimination of a notice that indicates the origin of our books, why do we desire to protect their authors?

Mr. Currier. Oh, this omission that is referred to is a mere inadvertence in a particular copy.

Mr. Putnam. I understand now, Mr. Chairman, if you will permit me, Mr. Ogilvie, it is in aid of your statement——

Mr. Ogilvie. Yes.

Mr. Putnam. I understand now that Mr. Ogilvie is referring to the requirement as to the notice being in terms limited to the edition sold in the United States.

Mr. Ogilvie. Yes.

Mr. Putnam. And it does not extend to any edition that may be produced and sold abroad?

Mr. Ogilvie. Yes.

Mr. Putnam. I understand that you think that it ought to be on all authorized editions of books?

Mr. Ogilvie. All authorized editions. The copyright law says that the notice shall go on the title-page or the page immediately following. You turn to any book, and what do you find on the page immediately following? Practically nothing, unless the copyright notice is there. There is plenty of room for it. If they can engrave the Lord's prayer on a three-cent silver piece, there is certainly room enough to put those half dozen words on the back of their title-page.

In regard to the publication of books under two titles, it seems to me that some provision should be made in the law to protect a man who publishes a book that is printed abroad under one title and is printed in this country under another, provided the foreign edition does not contain notice of copyright. As it is to-day, and as it will be under this law, one can import a book printed in England; it may have been written on the same subject as that which you intended to produce a book on; you have carefully warned your editors to abstain from making extracts from a book that is printed in this country or that contains a notice of copyright. You proceed. Your editor finds a book in a library that does not contain notice of United States copyright. It is published abroad by a publisher different from the one who issues it here. There is nothing to warn him. He makes copious extracts, and the owner of the copyright may be perfectly well aware of the fact that he has made those extracts. Under this law as it is proposed, he may permit that infringement to continue for three years and then claim damages, not less than one dollar a copy, although the book may have been sold for 10 cents per copy, and practically put the apparently infringing publisher, who acted in perfect good faith, out of business. It is unjust; and I submit, gentlemen, that those matters are proper subjects for consideration, and that they should not be enacted into a law in their present form.

Now, to refer to some of the remarks made by my predecessor, Mr. Olin. He said that the American Publishers' Copyright League and the American Publishers' Association represented practically all of the publishers of the United States. I differ distinctly and materially with him. They do not. They represent a few and only a few of the publishers of the United States. I doubt very much if a single publisher west of the Alleghenies (with very few exceptions) is a member of either of those associations. There may be a few exceptions—I know now that there are—but very few, and he is not qualified to speak for the others who are not members of those associations, and they do not represent a majority.

In regard to importation, he said that Scribner would be very glad to import a book if he were requested to do so. Now, I am a publisher, and if it were my book I do not think I should be very glad. I think I should tell the intending purchaser that I had a copy of the book that was at his disposal for the fixed price that I had placed upon it, and I think Scribner would do likewise.

In regard to cheap editions, which he spoke of and said that at the end of the copyright a publisher was desirous of securing as large a circulation as possible for his books—that is true within a year or two of the end of the term of copyright. But I can not recall at this moment a single book the price of which has been reduced materially until so close to the end of the term of copyright as to make it practically valueless to the original publisher unless he did reduce the price; and he does it, not for love of the public, not because he is considering the public, but simply to get ahead of his fellow-publisher. He is the man who then has a couple of years in which to exploit a cheap edition; and it seems to me that under the law as it is suggested, a term of fifty years from the date of the death of the youngest of the authors is going beyond what the framers of the Constitution decided was a limited time. Let us assume that Mark Twain, if he were 80 years of age, were to write a book. He has his daughter, who may be 20, write a few lines in that same book. Mark Twain dies in a few years; she lives to be 90. There is seventy years of copyright, and fifty years after her death, making one hundred and twenty years. I do not believe that that is a "limited time" within the meaning of the phraseology of the Constitution. [Laughter.]

Mr. Chaney. That is the joint-author clause.

Mr. Ogilvie. There is just one point that I had overlooked. I was not at any of the conferences, but I have been informed that an attorney representing certain of the special interests at those conferences suggested that the public should be considered; and to quote literally what I was told as to what happened, "he was hooted at and laughed down." And I think that very fully expresses the sentiment contained in this proposed copyright act, so far as the public are concerned.

I thank you, gentlemen.

STATEMENT OF FRANK H. SCOTT, ESQ., PRESIDENT OF THE CENTURY COMPANY, NEW YORK, AND PRESIDENT OF THE AMERICAN PUBLISHERS' ASSOCIATION.

Mr. Scott. Mr. Chairman, I only wish to clear up two points that have been raised by my predecessor. I am not responsible for the exact wording of the clauses covering these two points, but I do wish to emphasize their importance.

The first is as to the question of the original publisher's rights at the termination of the present contract or the present copyright. Under the law as it now stands, at the termination of the copyright the publisher would have a set of plates and possibly a large number of books on hand. He can enter the market, no matter who comes into the field, and compete on at least equal conditions.

Under the bill as it is proposed now, if the author secures a continuation or a renewal of his copyright, and the publisher is not consulted the publisher would be left with his set of plates and his investment in the sheets and stock; and it would be absolutely impossible for him to sell them to anybody, because his contract having expired, and the author may have gone and made a new contract with a new publisher, leaving him entirely out of it. If there is no copyright whatever he can compete on equal terms.

I am only explaining why I think the publisher ought to have some consideration under those circumstances.

Mr. Currier. What do you say to the amendment suggested by the gentleman who last spoke?

Mr. Scott. Just what was that amendment?

Mr. Currier. That the publisher might have the right to control the extended term, provided he would pay the same royalty that he had paid.

Mr. Scott. I think the publisher ought to be obliged to pay the same royalty that anyone else should pay at that time. It might be a very old work. It might be that the time during which he could continue to pay that royalty had expired.

Mr. Currier. You could hardly set the right up at auction, could you?

Mr. Scott. I am sorry to say it is very often done.

Mr. Chaney. Would you not think that would give the publisher an undue advantage over the author?

Mr. Scott. I think the law as it is at present framed is very broad. I only wish to say now that I think the publisher ought to be consulted. I suppose this will come up later, and I have not prepared any argument on the subject. I am only pleading that the publisher ought to have some consideration under those circumstances.

Mr. Chaney. Can not the publisher provide against all that by the contract he makes?

Mr. Scott. There will be no trouble about the copyrights taken out after the passage of this bill. It is only with reference to copyrights that are now in existence.

Mr. Chaney. Yes.

Mr. Bonynge. You think the language of the bill as it is is too broad?

Mr. Scott. I think so. I think I should not have made it, myself, quite so broad.

The other point I wish to make is with reference to the publication of the American copyright notice in editions of an American copyright work which are published abroad. What the gentleman has said might be very true if the matter were always within the control of the publisher of the American edition, but, as you will readily see, it is not always within his control. These books are very often written by a foreign author. The contracts of the foreign author, for instance, in the case of English novels, are made with his own publisher in London. They have their own arrangement between themselves as to what notice shall be put in the book. The American publisher is forced to place in his own books published in this country the American copyright notice, but he has no control as to what notice shall be placed upon books published in Germany, or in France, or in Spain, or in Russia, or in England. It is entirely beyond his control.

Mr. Chaney. Would you think the terms of this bill, then, are right?

Mr. Scott. I should say the terms of this bill are right. It seems to me it is perfectly possible for anyone desiring to reprint a book in the United States to ascertain whether or not it is copyrighted. Indeed, the general facts about any book which is so important that anyone wishes to reprint it are notorious. It is known or it can be easily ascertained whether the book is published in the United States and whether it is copyrighted in the United States or not. And I do not think that anyone should be able to get hold of a single copy, whether printed abroad or printed in the United States, that does not happen to have the copyright notice, and be permitted to go ahead and reprint the book ad libitum. I think the rights of the owner would not be sufficiently protected if that were permitted.

Mr. McGavin. What do you say about the case of the gentleman who just preceded you—the lawsuit into which he got himself?

Mr. Scott. That has been determined in the courts; it is not for me to say. One judge decided that he was right, and the judge to whom the case was appealed decided that he was wrong.

Mr. McGavin. He seems to have made all the necessary effort to find out whether there was a copyright or not.

Mr. Scott. That book, as I happen to know, was an edition of one of the dictionaries, otherwise known as Webster's Dictionary. I think it was perfectly easy for him to find out whether that book was copyrighted in the United States or not. It is not for me to say whether there was any technical omission which endangered the copyright under the language of the present statute; but it does seem to me that in books generally published outside of the realm of the United States, and beyond the jurisdiction of the United States, it should not be necessary for the American publisher, who owns the copyright or who represents the owner of the copyright, to go abroad and undertake to make arrangements of this kind. It might be very difficult for him to make arrangements for the publication of the American copyright notice on foreign editions which he does not print himself and which he does not arrange to control.

Mr. Chaney. Mr. Chairman, I want to make a suggestion about the form of expression of that clause on page 12. You will notice that in the last line of that second paragraph of section 15 the word "undertaking" is used. I do not know whether people generally understand the use of that word "undertaking" as lawyers in my part of the country do, but I would prefer the word "action" rather than "undertaking," because "undertaking" usually refers to a bond of some kind. "Action," it seems to me, is the proper word.

Mr. Putnam. That is page 12, line 18, is it not, Mr. Chaney?

Mr. Chaney. Yes. The word "undertaking," you know, is used by lawyers generally in the sense of a bond or some agreement to stand good for the default of another, whereas "action" is the name of the suit.

Mr. Putnam. This was not intended to apply to a legal action.

Mr. Chaney. But is it not in the same nature?

Mr. Putnam. No; it was simply meant to apply to the beginning of some enterprise, the beginning to prepare to manufacture. It is a business undertaking, not a legal one.

Mr. Chaney. I misunderstood it, then.

Mr. Bonynge. That is what I understood it to be—an enterprise.

Mr. Currier. You might let the two words go out, so it would read, "who, after notification of the copyright, begins to infringe it." Then it would be a question of fact.

Mr. Putnam. Mr. Chairman, you have asked me to announce that it will be the desire of the committee to have the names and addresses of all those present at these hearings, and the relations in which, if they desire to express it, they are here, whether in favor of or in opposition to the bill. We have provided a register at the door in which those names can be noted. I understand that it is desired that that shall extend to all those present.

The Chairman. All present, and in such form that it may be placed in the record that we are making.

Mr. Chaney. You mean also to include, I suppose, a brief expression from these people as to their objections, and to what their objections related?

Mr. Putnam. Yes. The register will be supplemented by their communications, I suppose—the register itself, including their names.

Mr. Horace Pettit, Mr. Chairman, who spoke yesterday, desires to supplement his remarks with an additional suggestion or two, which he has put in writing, and asks simply to have entered in the record, with your permission.

Doctor Lewandowski, present here, asks me to submit a request in writing from a firm of music publishers in New York, that he submit to you a communication in aid of the provisions for the protection of music publishers against reproduction by mechanical devices. He submits that in writing, with the request that it may be entered on the record.

(The various papers above mentioned will be found at the end of this statement of Mr. Putnam.)

Mr. Putnam. The copyright office, Mr. Chairman, is now in receipt, naturally, since the bill has been introduced, of some suggestions from those who have participated in the conferences, and since the bill has been introduced and is in the custody of your committee it would seem that those belong to the files of your committee. If you will permit me, I will submit these, without reading them, to be entered in the record.

The Chairman. Do you think they ought to be printed in the record of the meeting?

Mr. Putnam. I do, Mr. Chairman. I do not refer to mere formal communications, or those that may be disposed of absolutely by the copyright office. I do not mean all communications that come to us with reference to the bill. These are simply four communications, from four participants in the conference. One of them, Mr. A. W. Elson, makes certain definite proposals for amendments, including one to section 13 which would extend the manufacturing clause. He has sent a copy of this to you, Mr. Chairman, and I assume that it will go in the record, with the request for a hearing.

The second is from Mr. Edmund C. Stedman, who was a participant, but is in ill-health, and can not be here; but it contains an expression upon the bill that I think should go in the record.

Another is from Mr. Leo Feist, also a participant, and contains an expression about the bill that he would have made here orally if present. I think that should go in.

Another is from Mr. Ansley Wilcox, who represented certain lithographic interests very much concerned with the protection of such prints as posters, and very much concerned, therefore, in the specifications of subject-matter. He writes a communication which I think should go into the record, expressing his content with the specifications of sections 4 and 5.

The Chairman. Those will be printed in the record.

(The above-mentioned papers will also be found at the end of this statement of Mr. Putnam.)

Mr. Putnam. I have information, Mr. Chairman, that when the matter of the reproduction of music by mechanical devices comes up for discussion, Mr. John J. O'Connell, an attorney of New York, would like to be heard, representing ten manufacturers of automatic piano players in New York City, and desiring to be heard only in opposition to those portions of the bill respecting musical copyrights, and that in connection with the same general subject-matter Mr. Howlett Davis, an inventor of material that enters into these devices, desires an opportunity to make some opening remarks, pointing out how the proposed bill will, if enacted, act in restraint of invention, and show how it encroaches upon the existing patent laws.

If it is your pleasure, now, Mr. Chairman, I would suggest that it would be helpful to have an expression from the librarians dissenting from the assent of the American Library Association with regard to the importation clause, while Colonel Olin's remarks are fresh in mind, and if that is your pleasure, I think it is only fair that I should make clear the status of that provision.

The list of participants in the conference included two associations that might be interested or were certain to be interested in these importation provisions. One was the National Educational Association and the other the American Library Association. These importation clauses concededly contain a restriction, a limitation, a diminution of existing privileges of importations enjoyed by individuals and enjoyed by certain institutions.

The National Educational Association might well have spoken for both individuals and institutions and generally. As a matter of fact, it should be clear that the participation of the National Educational Association in the conferences was of the slightest. They were invited, we urged them to be represented, and they were present by delegate at the first and the second conferences; but their participation was of the slightest. There was no expression from them upon the diminution in the case of individuals, and they contented themselves at the outset with an expression of dissent from any provisions which tended to diminish in any way the present privileges of libraries.

The American Library Association was present by two accredited delegates, who considered, by later action of the representative board of the association, that they had authority to represent the association in assenting to final provisions. Those two delegates were the present president of the American Library Association, Mr. Frank P. Hill, of the Brooklyn Public Library, and Mr. Frank C. Bostwick, of the New York Public Library. Mr. Bostwick was here yesterday, but has had to leave to-day. Colonel Olin's remarks included the American Library Association as one of those associations for whom he could give a general assent to the bill substantially as it stood. Coupled with that, however, should, I think, be before you this entry in the record of our conference in March last. At that conference these provisions were, I believe, substantially (as far as they regarded libraries) as they stand in the bill, except that one proviso has been added, which is rather in favor of libraries, as we understand it, than otherwise. They expressed themselves then thus:

If Mr. Bostwick had been here, he would to-day have called attention to that. I do it simply because those delegates are not here to say that; and I do it in order to give Mr. Cutter's remarks a proper standing before you. Mr. Cutter, as I understand it, represents librarians and libraries who object to any diminution of the present privileges.

(The papers referred to during the foregoing statement by Mr. Putnam are as follows:)

STATEMENT OF WILLIAM P. CUTTER, ESQ., OF THE FORBES LIBRARY, NORTHAMPTON, MASS.

Mr. Cutter. Mr. Chairman and gentlemen, I claim to represent no association, nor to represent myself personally. I claim to represent only the public libraries of the following cities: Chicago, St. Louis, Baltimore, Louisville, Pittsburg, Newark, Minneapolis, Los Angeles, and Springfield, Mass. Also the libraries of the following universities and colleges: Yale, Cornell, Colgate, Wisconsin, Michigan, Amherst, and Brown; the New York State Library and the Connecticut State Library; the Western Massachusetts Library Club, comprising a membership of forty libraries, and the Connecticut Library Association, representing the organization of libraries in Connecticut. I wish to speak a few moments on that provision contained at the bottom of page 24 of the Senate print of the bill.

Mr. Webb. What section?

Mr. Cutter. Section 30; the third subsection of section 30, at the bottom of page 24, line 25, including all after the words "United States"—in other words, that portion of the bill which prohibits importation by public institutions of a certain class of books.

You are well aware of the fact that existing law allows public libraries to import two copies of any book without any restriction as to what the book shall be. There are certain points that will make the suggested legislation a great hardship to the libraries.

Mr. Currier. Pardon me just a minute. Can you import two copies of an unauthorized edition?

Mr. Cutter. Yes, sir.

Mr. Currier. Can you do that to-day?

Mr. Cutter. Yes, sir; we can now.

Mr. Currier. A fraudulent reprint, for instance?

Mr. Cutter. Yes, sir.

Mr. Currier. There is absolutely no restriction, as you understand it to-day?

Mr. Cutter. There is no restriction at all, as I understand, on library importations; but there is in this bill in regard to it.

Mr. Currier. I was asking about existing law.

Mr. Cutter. Yes; I understand that libraries can import any books that they wish.

Mr. Currier. I had the contrary opinion, but I may be mistaken.

Mr. Chaney. You object to that entire part of the bill, do you?

Mr. Cutter. Yes; I object to it principally for this reason: In importations for large libraries, such as those that I represent—it does not apply to small libraries which import only a small number of books—a case of books will come in from abroad, books that are not copyrighted in this country, English books. One book in that case might, by a mistake, be one which was copyrighted here, printed in England, and containing no notice of its copyright in the United States of America. If that fact was discovered it would send all of that box of books to public store; it would place all the box of books, as I understand, in danger of being destroyed; and it would place the librarian who did the importing in danger of having to show the Secretary of the Treasury, under this law, that he was not guilty of trying to import that book illicitly.

Mr. Currier. Under what section of this law? Let that go in the record right here.

Mr. Putnam. Sections 28 and 29, I think.

Mr. Cutter. Section 28 is in regard to the condemnation, on page 21 of the Senate print. Sections 26 to 29 include the penalties that I have referred to.

Our objection to that is the fact that libraries in these days must have at their disposal as quickly as possible the printed thought of foreign countries. If there is any delay in our obtaining the box of books (and those who have had experience, as I have, for thirteen years in importing books for libraries in this country, know that there is often six months delay in getting a box of books through the custom-house where there is the least question as to any of them) it would mean, practically, that our reason for buying the books at that time had disappeared. We want the printed English thought as quickly as possible.

Mr. Chaney. Do you think that is necessary to the efficiency of a public library?

Mr. Cutter. I do.

Mr. Chaney. That you should get those books immediately?

Mr. Cutter. I do; yes, sir.

Now, my other reason is a commercial reason; and in order to state it I shall have to go somewhat into ancient history.

About the year 1901 certain publishers of this country formed an association called the American Publishers' Association, and, in conjunction with the American Booksellers' Association, entered into an agreement to control absolutely the selling price of books in this country. It was an agreement among the publishers that they would not furnish books to booksellers who would not agree to sell the books at a standard price—in other words, a trust proposition.

Mr. Chaney. We have heard of trusts before. [Laughter.]

Mr. Cutter. The libraries were granted a 10 per cent discount from the price of the class of books affected by this agreement, so-called net-price books. We discovered, however, on examination, that these new prices which were fixed were so much higher that the net result to us was an advance of 25 per cent in the price of the book, and we found that the majority of those books were not books written by American authors, but they were books written by English authors and copyrighted in this country, and that there was a difference in price amounting to the 25 per cent tariff on printed books. So that this question, gentlemen, is a question of trusts and a question of tariff.

Now, the librarians have been getting around that by importing English books, because the same book printed on the other side is sold in the case of these expensive books at a very much reduced price compared with the price on this side. If—I am going back now to my first position—if I am prevented, by the difficulties in getting through, by accident, a copyrighted book, from getting at the noncopyrighted book so long, then I will be forced to go to Mr. Scribner, who will buy the books for me abroad at his price, against my interest.

Senator Mallory. Do I understand you to say that that book trust is still in operation?

Mr. Cutter. Certainly.

Now, I am connected with a library that spends $12,000 a year for books in a country town. Of this sum $5,000 is spent for English books. I am a representative of a city government which taxes itself to a certain extent to educate the people in its community, and I object seriously to paying $1,000 of that $12,000 to American publishers as a tax. That is my point.

Mr. Currier. What changes in this bill do you suggest?

Mr. Cutter. I should suggest the entire elimination of that provision.

Mr. Currier. Of the entire paragraph?

Mr. Cutter. No; after the words "United States."

Mr. Currier. That was the suggestion I made some time ago—after the words "United States," in line 25.

Mr. Chaney. Yes; precisely.

Mr. Currier. Would that be satisfactory to the people whom you represent?

Mr. Cutter. That would be satisfactory. I think it would be satisfactory to all librarians.

Mr. Hinshaw. This would allow you to import, however, but one book, whereas you have had the privilege of importing two?

Mr. Cutter. One book, but we are perfectly satisfied with that. I think any library would be. A ruling of the Treasury Department has held that a branch library is a library itself, so that in the case of a large library wanting a book for each of several branches it would be possible to import more than one.

Mr. Currier. With that stricken out, the people you represent would not object to sections 26, 27, 28, and 29?

Mr. Cutter. No; it does not affect them.

The other point I wish to make is on behalf of another interest. I wish to speak a word in behalf of an interest which is not represented here at all—two interests, in fact. The first is the firms that are in the business of importing books into this country and are not represented and have not been asked to be represented; have not been asked to come to these meetings. There are certain firms that are not in the publishing business that are in the business of importing books.

Mr. Currier. I think we ought to say right there, as you say they have not been asked, that the committee invites everybody.

Mr. Cutter. Yes; I mean up to this time they have not been asked.

Mr. Currier. Those who were not represented at the conference, as well as those who were.

Mr. Cutter. Whether they were asked here or not I do not know. Of course, this being a public hearing, they had a right to appear. But the point I want to make is this: That a great many of our libraries have to import books through these men, because they get a cheaper rate of importation through them than through some of the firms that are also publishers of books. This would prevent the importation of some of these books through those firms. It would practically ruin their English business, largely ruin it; and on behalf of a library that uses that method of importation largely, it seems to me that some provision might be made for other importers than those who are publishers of books.

Those are the only arguments that I wish to present.

Mr. Chaney. To what section of this bill do you now refer?

Mr. Cutter. I am referring to the subsection of this same section on page 24—section 30.

Mr. Chaney. Do you mean subsection E?

Mr. Cutter. Yes.

Mr. Currier. No; the subdivision called "First."

Mr. Chaney. Oh, I see.

Mr. Cutter. I suggest this amendment to the clause reading, "When imported, not more than one copy at one time, for use and not for sale, under permission given by the proprietor of the American copyright."

I suggest leaving out the consent of the American copyright proprietor. That changes existing law only in these particulars: It allows the importation of only one copy instead of two copies, as the existing law does; it gives the importer who has established a business here based on legislation, and who is closely in touch—the firms that I speak of serve libraries and learned men mostly with expensive books and have practically no sale to the ordinary public—it would give them an opportunity, and it would give a scholar in this country who wants a book for a particular purpose for his own use and not for sale an opportunity to import it.

Mr. Chaney. So that if you strike out "under permission given by the proprietor of the American copyright" it satisfies them?

Mr. Cutter. It would satisfy the request of the importers, who are not publishers.

Mr. Currier. Do you appear for the importers?

Mr. Cutter. I appear for one of them only.

The Chairman. Do you feel that you are authorized to speak for the others?

Mr. Cutter. I am authorized to speak for one firm only.

The Chairman. Do you feel that you represent the other importing firms?

Mr. Cutter. I do not; no. I am quite convinced that I would be allowed to represent them, but I have had no communication with them.

Mr. Bonynge. But you think you state their views on the subject?

Mr. Cutter. I have not any doubt of it.

Mr. Chaney. You spoke of "ancient history" back as far as 1901. Do you regard anything back behind that as ancient history?

Mr. Cutter. No; but it is ancient history in the book business. That is when the publishers of this country discovered that the Carnegie gifts had made the library trade so large that they must do something to make some more money out of it.

Mr. Putnam. With your permission, Mr. Chairman, I would suggest that Mr. Bethune, representing certain of the reproducing interests particularly—I ought not to limit that by the word "reproducing," but who represented at the conference the Reproductive Arts Copyright League—should be heard.

STATEMENT OF FANEUIL D. S. BETHUNE, ESQ.

Mr. Bethune. There are but two or three sections which the Reproductive Arts Copyright League wish at this time to comment upon.

Mr. Millet, on behalf of the artists, has stated that they are satisfied with the sections relating to paintings as they stand, but as I understand it the word "accessible," in section 14——

Mr. Chaney. Whereabouts?

Mr. Putnam. It is the last line on page 10 of the bill.

Mr. Chaney. I see.

Mr. Putnam. It is in the second paragraph in the Library print.

Mr. Bethune. That is such an indefinite, uncertain term that we think——

Senator Latimer. What are you referring to; what term?

Mr. Bethune. The word "accessible"—"or if a work specified in subsections F to L, inclusive, of section 5 of this act, upon some accessible portion of the work itself or of the margin," etc.

Mr. Chaney. Where would you put it?

Mr. Bethune. Let it be on some accessible portion, but let the bill provide that it shall be always uncovered. As it stands now, it might be on the back of the painting, and the painting might be in a box, and it would be accessible in a sense.

Mr. Chaney. You would put in the word "uncovered?"

Mr. Bethune. It should be uncovered.

Mr. Putnam. Accessible and uncovered?

Mr. Bethune. Accessible and uncovered. We want to be able to ascertain at once by examining the painting in the frame, if it is in a frame, whether the picture is copyrighted or not.

Section 9 provides, about the fifth or sixth line, that "in the case of a work of art" the notice "shall be affixed to the original before publication thereof." The word "publication" is not defined, and it has been the source of considerable litigation as to what is and is not publication.

The Chairman. Has that been settled by the courts?

Mr. Bethune. It has not been settled by the courts. There are differing decisions now.

Mr. Currier. Is it not ordinarily understood to be the putting on sale of the object?

Mr. Bethune. No; I think not—not if it is a private sale. I think a sale should be specifically stated by the statute to be a publication, whether a private or a public sale, and the public exhibition of a painting should be a publication of it.

Mr. Currier. Will you suggest an amendment that will meet your idea?

Mr. Bethune. I am not prepared to suggest an amendment, but I shall do so in writing to this committee, if I may.

Mr. Chaney. In a general way, what is your idea?

Mr. Bethune. That the statute should state that certain things shall constitute publication of a work of art, and state that publication shall include a sale, whether a public or private sale, and a public exhibition of the work of art.

I must refer again to section 14. That provides that not only in respect of paintings, but also maps and photographs, the notice can be on the back or the margin. Now, so far as a painting is concerned, that is quite satisfactory to us if the notice is to be "uncovered," but in respect of a photograph, which may be very loosely attached to a little piece of pasteboard, and the notice may be put on the pasteboard, which could be very easily removed from the photograph. The reproducer to whom the photograph is then brought, there being no evidence of its having been detached from any mount, may be easily misled, and before he discovers that he is infringing he may have invested thousands of dollars in the undertaking to reproduce it.

Mr. Currier. Then your suggested amendment, "uncovered," does not meet this objection, which you now state, at all?

Mr. Bethune. It does in respect of the painting, but I do not think that so far as the photograph is concerned the law should permit the notice of copyright to be simply on the thing to which it is attached or mounted. It should be on the photograph itself. I think that that will prevent litigation and expense to both photographers and reproducers.

Mr. Putnam. Mr. Chairman, may I ask Mr. Bethune to state whether, under the present law, the notice can be put on the mount of a photograph? Is that your understanding—that it can not be, and that this is an extension of the privilege?

Mr. Bethune. I understand that it can under the present law.

Mr. Putnam. That it can now; so that this simply repeats the privilege.

Mr. McGavin. An objection was made here yesterday, I think, on the ground that it would deface the photograph.

Mr. Bethune. Yes; that objection has been made by the photographers; but I leave it to the intelligence of this committee——

The Chairman. And in case of a fine picture, for instance, the artist might object to having the words prescribed by this act appearing permanently upon the face of the picture.

Mr. Bethune. Yes, he might; but as a matter of fact, I am informed that there are very, very few artists who do not insist upon putting some mark, if not their name, upon the face of their painting.

The Chairman. Can you call attention to that section?

Mr. Bethune. There is no section in this bill providing for the placing of the notice upon the face of the painting; but, I say, there are very few artists, I am informed——

The Chairman. Where is the section that prescribes the form?

Mr. Bethune. Section 14.

Mr. McGavin. On page 10.

Mr. Bethune. It may be simply a "C," with a little circle around it.

Senator Mallory. Do you object to the word "accessible" here, on line 10?

Mr. Bethune. Yes; the word "accessible."

Mr. Putnam. Except as coupled with the word "uncovered."

Mr. Bethune. Yes.

Mr. McGavin. If this language were made to read "accessible and uncovered," it would necessarily, then, require that it be placed upon the face of the photograph or picture, would it not?

Mr. Bethune. No; I think not.

Mr. McGavin. You could not put it on the back, where it would be uncovered?

Mr. Bethune. No; I do not think that that would be covered——

Mr. Campbell. How about the word "visible?"

Mr. Bethune. "Visible" was the word which I suggested at the conference. I do not know why it was not put in.

Mr. Putnam. I may say, Mr. Bethune, if you will permit me, Mr. Chairman, that this question of notice was a long-discussed question between the artist group and the committee of the reproduction group; and they started, of course, at very opposite extremes. We understood finally that they reached this point: That in the first place there should be a notice. That was a concession on the part of the artist group, who thought there ought not to be any notice except their own name. That there should be a notice—that is, something to indicate copyright, even if it should be only "C" within a circle—was insisted upon by the reproducing group. So that it was agreed that there should be something to indicate copyright. Where should it be?

Now, the present statute uses the term "visible;" but the reproducing group said (if I am wrong, Mr. Bethune will correct me): "We do not care that it shall be visible in the sense that he who runs may read it. We do not care, even, that it shall necessarily be on the front of the painting. It may be on the back of the painting. It must not be on the frame, because the frame is a detachable thing. People's tastes as to frames differ, and one collector likes one, while his successor may prefer another, and he will change the frame, and with it goes the notice. It must be on the thing itself"—that was their contention—"but it may be on the back."

Now, if it is on the back, is the word "visible" descriptive? We wanted to get some word that would indicate that it might be put in some place where it could be found by somebody looking for it, and that was the requirement of the reproducer that somebody with a sincere desire, not with a malicious intention to appropriate it, but with a sincere desire to find out whether it was copyrighted or not, might find out with a reasonable search intending to look for it. That was satisfactory to them and that was the endeavor in using the word "accessible."

Now, it is that little doubt which Mr. Bethune has suggested to you. Would it cover the back? And would it cover and prevent a case of covering it up? The notice might be covered up. So he has suggested the addition of the words "and uncovered," but the use of the word "accessible" rather than the word "visible" was to endeavor to express what we understood to be agreed to, as the agreed intention.

Mr. Bethune. I think it will express it if "uncovered" is added.

Mr. Putnam. I should add that the reproducers definitely objected to the privilege on the part of the photographers, and so on, the print publishers, etc., of putting the notice on the mount; but of course it was understood that they had that privilege at present. They have that privilege at present, but the reproducers never thought that that was reasonable, and did not concede it to be reasonable.

Mr. Bethune. Now, reproducers are open to fraudulent attempts to sell to them copyrighted works by simply removing the notice of copyright, and section 25, in the draft of the bill, imposes simply a penalty of $100 as a minimum and $1,000 as a maximum fine for the removal of this notice. We think that the punishment should be imprisonment as well as fine. We want to protect ourselves from that fraud, which is very frequently encountered.

Mr. Chaney. So that that paragraph of that section as it stands is satisfactory to you?

Mr. Bethune. Section 25, sir?

Mr. Chaney. Yes.

Mr. Bethune. No. We want, as well as a punishment by fine of not less than $100, the words inserted "or imprisonment" or "and imprisonment," both for a specified term; it is not material how long it shall be.

Mr. Webb. Have you suggested your amendment to this section 14 that some word instead of "accessible" should be used? Did you suggest "visible"? Was that your idea?

Mr. Bethune. That was the word which we did suggest, but "accessible" is satisfactory to us if "uncovered" is coupled with it.

Mr. Webb. You want it to read "accessible and uncovered"?

Mr. Bethune. Yes.

Mr. Webb. Would that apply to a magazine picture—a picture in a magazine that had the notice on the back of the original? You could look for it, and it would be uncovered.

Mr. Bethune. In the case of a magazine, as I understand, it would be covered by the copyright of the magazine.

Mr. Webb. Well, that is all right; I did not understand how that would be.

Mr. Bethune. Those are the principal features——

Senator Mallory. I would like to ask you with reference to that suggestion which you were referring to in regard to publication in the matter of a work of art, or a plastic work or drawing. Is there any definite suggestion that you could make, any definite change, so as to convey your idea? I think I know what you want; but it seems to me it is going to be pretty difficult to use an expression there that will convey the exact idea that you desire. Now, in the matter of a work of art, as long as it remains in the hands of the creator of it, one would think it would not be necessary, but it was suggested to me by the chairman here that even the maker of the work of art might want to copyright it, although he did not intend to sell it; he would want to prevent people from infringing on it.

Mr. Bethune. Precisely.

Senator Mallory. And yet there would be no publication; he could keep it in his own library.

Mr. Bethune. He has the right to copyright it at any time he pleases, before publication.

Senator Mallory. I know that; but the point is, What does the word "publication" here mean? And I would like to know, if you have given the thing any thought, if there is any suggestion you could make?

Mr. Bethune. Yes, sir; I think the term "publication" should be explained. I do not think we can define altogether what "publication" is; but we can state that certain things shall be included within "publication."

Senator Mallory. What is your suggestion?

Mr. Bethune. I think that sale, whether a public or private sale of the painting, and the public exhibition of the painting, should be construed as a publication.

Mr. Webb. You suggest inserting after "original" "before publication, exhibition, or offering for sale?"

Mr. Bethune. No, sir; I should let "publication" stand there, but I should qualify or partially define in another section what "publication" is——

The Chairman. Is there not danger in making such definition?

Mr. Bethune. No; I think not, if you state what it shall include, or rather what shall be included in it.

The Chairman. Suppose we define publication in the manner you suggest, would there not be difficulty in cases not covered by that definition?

Mr. Bethune. I think not, sir.

The Chairman. Might not the courts construe that definition as covering all classes of publications?

Mr. Bethune. Not if the statute specifically states that those expressions are not meant to be an exact definition of all that publication includes, and I think that can be very easily done.

The Chairman. We would be very glad to have your suggestion on that point.

Mr. Bethune. I should be very glad to submit it if you will be kind enough to permit me to do so.

There are some other matters which I do not care to take up your time with now, and will do so in writing.

Mr. Chaney. Is your idea of expressing and defining "publication" for the purpose of limiting the word "publication?"

Mr. Bethune. Not altogether; no, sir. I think that both the reproducer and the artist should know the exact situation at the very outset. If the artist exhibits a painting in a gallery and people pay fifty cents or nothing to go in and look at the painting, although there is a restriction, perhaps, made by the artist upon copying that painting, when the painting goes to that exhibition he should know at once, and the reproducer should know, that that being a public exhibition is a publication of the painting, and if the copyright notice is not on it then the artist has lost entirely the right to copyright it entirely.

Mr. Chaney. You are aware of the fact that if you undertake to define "publication" you do limit it to whatever you say it is?

Mr. Bethune. I do if I attempt to fully define it, but I should not attempt to so define it. I should attempt to say that certain things should be embraced in the term "publication."

Mr. Chaney. Do you not thereby exclude everything else?

Mr. Bethune. No, sir.

Mr. Putnam. If Mr. Bethune will permit me, Mr. Chairman, the attention of the committee may not have been called to the fact that there is a definition of the date of publication where copies are reproduced for sale or distribution. That is in section 63. It is limited to that because, after discussion, the conference did not seem to be able, or none of our advisers seemed to be able, to suggest a definition for "publication" in the case of works of art, for instance, of which copies are not reproduced. It seemed to those who were advising us a dangerous thing to attempt.

Mr. Bethune. I think it would be, and I would not undertake it, but I think you will save trouble and expense to both the artists and the reproducers if you will say that the sale, whether private or public, and the public exhibition, shall be a publication of the painting.

Mr. Webb. That is what I asked you a while ago—if you did not think, speaking of "publication" here, that it would be sufficient if you were to let it read "public exhibition or offering the same for sale," either public or private sale?

Mr. Bethune. To be included in the term "publication."

Mr. Webb. But can you think of any other instance where publication would mean something else than those things?

Mr. Bethune. No; I can not for the moment, but I think there is danger, as the chairman has just stated—there may be many things which do not occur to me now, or would not occur to this committee, which should be contained in a definition.

Mr. Webb. I think you would complicate it very much if you used the word "publication" generally, and then undertook to define "publication" also, and intended that "publication" should cover more points than you specified.

Mr. Bethune. Why, sir, this bill starts in and says that all the works of an author may be copyrighted. It then specifies some of the things, and it then says that the things specified are not all that may be included.

Mr. Webb. I understand that; but you, a man who is expert in these matters, can not state to us what other points would be covered than public exhibition or offering the same for sale.

Mr. Bethune. I am not a reproducer; I am a lawyer, and the reproducers may be able to advise me.

Mr. Chaney. A lawyer is an originator always. [Laughter.]

The Chairman. You spoke earlier in your remarks about the decisions of courts on this subject.

Mr. Bethune. Yes.

The Chairman. And the lack of uniformity of the decisions relative to publication. Is not that fact due to the conditions which you now describe, and which have been suggested by different members of the committee—because what may be publication in one copyrightable article may not be publication in another?

Mr. Bethune. Yes, sir. For that reason——

The Chairman. Now, then, if the courts, with this attempt to define publication, have found difficulty and have differed, is it not because of the different character of the articles that have been involved in the litigation before the courts?

Mr. Bethune. No; it is the same article that I have in mind. There is one Massachusetts case, a Federal case, where, in the case of a public exhibition of a painting, the circuit court of appeals in the first district held that that was a publication of the painting.

Mr. Campbell. Was the exhibition given for hire, for profit?

Mr. Bethune. Yes; my recollection is that it was a public exhibition for hire. Subsequently another case——

Senator Mallory. It held that that constituted publication?

Mr. Bethune. That that constituted publication.

Senator Mallory. It did not define what publication was any more than that?

Mr. Bethune. No; it simply decided that that particular public exhibition was a publication of the work.

The Chairman. In other words, it decided that in that case special acts constituted a publication?

Mr. Bethune. Yes, sir. Now, the Federal courts in New York State have held the contrary view in respect of a public exhibition of a painting for hire (in the Workmeister cases). Those cases will probably go up to the Supreme Court, but they may not.

The Chairman. What was the argument or the reasoning of the court in the latter decision?

Mr. Bethune. The Massachusetts case was distinguished, if my memory is correct, on the fine point that in one case there was a reservation—in the one case the artist made some reservation in respect of the use of the painting when he loaned it to the exhibition, and in the other case he did not; but it is just those fine points which we want to eliminate.

Senator Mallory. From what you say, I think it would be well for us to avoid the word "publication" and state just what we want without using the word "publication" at all, if we are going to give rise to diverse decisions and litigation. I think we had better express it, perhaps, in the language which you have—"after sale or exhibition for hire" and "public exhibition."

Mr. Bethune. Well, there you do limit it.

Senator Mallory. Just express it in those words.

Mr. Bethune. There you do limit distinctly what would be, in effect, publication, though you do not call it so, and that we do not want.

The Chairman. We would be very glad if you would submit your proposed amendment to the committee later.

Mr. Putnam. Mr. Chairman, I understand that Mr. W. A. Livingstone, representing certain reproducing interests, and Mr. McDonald, representing the National Photographers' Copyright League, wish to have a note recorded—not to argue a point, but simply to have a note recorded in the minutes.

STATEMENT OF WILLIAM A. LIVINGSTONE, ESQ., OF DETROIT, MICH.

Mr. Livingstone. Mr. Chairman, I simply wish to state two things in contradiction of the last speaker. I stand here for a large reproductive interest, and consequently we are speaking also from the standpoint of the reproducer. We dissent very strongly from his opinion and we support the bill in respect to notice as it now is.

That is all we wish to say now.

Mr. Webb. You want the word "accessible" kept in just as it is now?

Mr. Livingstone. Yes, sir.

Mr. Webb. What do you understand that to mean?

Mr. Livingstone. I understand that to imply that that notice must be easily get-at-able in the painting or other object.

Mr. Webb. Well, "accessible" means "get-at-able."

Mr. Livingstone. Yes, sir.

Mr. Webb. But you have not got "easily accessible" in here. You have got "accessible," simply, whether with difficulty or whether with ease.

Mr. Livingstone. In the case of a painting or work of art it is very easy—you can hardly conceive of a case where, if the notice is accessible at all, it can not be obtained.

Mr. Webb. Well, why should you object to the word "uncovered"—"accessible and uncovered?"

Mr. Livingstone. Because if you include the word "uncovered" you then impose some other conditions which are the result of that term, as, for example, you may compel the notice to be on the face. I will give a concrete illustration that is easily understood. Suppose you have a very small miniature which is very delicately painted. You can not put that notice across the face of the miniature, and yet you can take the miniature in your hands and turn it over and find the notice in an accessible place with ease.

Mr. Webb. Do you think, though, that "accessible and uncovered" means putting it on the front of the painting or photograph? Could it not be on the back and be still uncovered on the back?

Mr. Livingstone. The painting may be hanging on the wall.

Mr. Webb. It would still be uncovered.

Mr. Livingstone. Oh, not necessarily; no, sir.

Mr. Webb. As far as the painting itself is concerned, I do not know why you all quibble between "accessible" and "uncovered," and I did not know what was the real difficulty between you on this word "accessible." The word "visible" has been suggested.

Mr. Livingstone. Another case would be this: In certain kinds of sculptures you could not possibly put that notice upon the face of the sculpture without a serious marring of it, without a serious impairment of its commercial value. The law even now takes cognizance of this, and permits you, in those cases, to put it on the bottom or on the back. It may not necessarily be uncovered, but it is accessible.

STATEMENT OF PIRIE MACDONALD, ESQ., OF THE PHOTOGRAPHERS' COPYRIGHT LEAGUE.

Mr. Pirie MacDonald. We wish to stand for the word "accessible" as it has been evolved by the Librarian, and we would wish that in case the word "uncovered" is used it be very strictly defined; that it be defined as to when this picture should be uncovered. If, for example—and remember, please, that I am speaking merely for photographers, and not as a reproductionist—suppose I were to make a photograph of someone, and were to properly and duly mark it with the notice as prescribed by law (for example, a photograph of yourself), and you were to decide that you objected to the notice as being a defacement, and you were to take it on yourself not to take the notice from the picture (because that would be prevented by the proposed law) but to cover it up. It is your property, unquestionably; and it gets to the hand of a reproducer and he says, "This is not uncovered." Therefore I suggest that in case by any chance the word "uncovered" is used, it be very strictly defined.

Mr. Putnam. Mr. Chairman, there are a great many people here who are interested in behalf of the provisions in the bill proposing protection against the mechanical devices for the reproduction of music to the ear. There are many here who are opposed to the provisions of the bill, and those who are its proponents are in favor of them. They are, of course, very desirous to near the arguments advanced by those who are against them, and, if it be your pleasure, I would suggest that it would be only fair to hear from the opponents of those provisions as soon as possible. I have called as many as I knew of the participants in the conference who cared to say anything at this stage in favor of the bill. One additional participant to those who have spoken, representing the directory publishers—I think that association is not here—states, in a letter:

That is the paragraph requiring that in the affidavit as to manufacture the place in which the work was done and the establishment shall be specified. I simply ask that that go into the record as coming from the American Directory Publishers.

The Chairman. What reason is given for that request?

Mr. Putnam. I understand the reason to be that it would be an undue burden upon the publishers.

The Chairman. In what respect?

Mr. Putnam. I think perhaps the publishers ought to answer that. It is a specification on which they alleged to the conferences might be inconvenient and difficult in some cases. In the case of directories, the directory publishers said that they were in the habit of having their work done at a great many establishments. Of our general legal advisers, as you have asked me, I feel that I ought to state this: The chairman of the advisory committee of the American Bar Association is not here to state it himself, as he stated it to us: but he was of the opinion that it was not relevant to the affidavit. But I do not see that at this point, sir, this question can be discussed, because the persons who are opposed to this provision are not fully represented here.

Of those on the list of participants that cared to be heard at this point I know of no others, except that Mr. Sullivan, who represents the International Typographical Union, not caring to make any argument or statement, but possibly caring to do so later, if he may, would like to say just a word in behalf of the general principles of the bill, or on behalf of the bill as a whole—the feeling of the Typographical Union as to the bill.

STATEMENT OF J. J. SULLIVAN, ESQ., REPRESENTING THE INTERNATIONAL TYPOGRAPHICAL UNION.

Mr. Sullivan. Senators and Representatives, I do not desire to take up any of your time just at this hour, as there are many gentlemen here from out of town who wish to be heard before the committee. I therefore desire to be heard at some future time, as I understand you will have a session of this committee to-morrow; and on behalf of the organization, the International Typographical Union, which I have the honor to represent, I particularly protest against any modification of section 13, known as the manufacturing clause of the copyright law.

Mr. Chaney. Is that in this bill or the present law?

Mr. Currier. This bill.

Mr. Sullivan. I refer to section 13, known as the manufacturing clause of the old act and copied in the new one. Speaking also on behalf of my associates from New York, representing 7,500 typographers, we protest against any modification of this law.

Mr. Putnam. You must make it clear whether you refer to this bill or to the existing law. Are you satisfied with the bill?

Mr. Sullivan. I refer to the revised bill.

Mr. Putnam. You are satisfied with the bill as it stands?

Mr. Sullivan. The Senate bill.

Mr. Currier. You are referring simply to section 13?

Mr. Sullivan. Section 13; yes. That is, the old section.

The Chairman. Do you approve in all respects the bill as introduced in the Senate and House?

Mr. Sullivan. No, Senator; I respectfully beg to differ in this respect—that either through inadvertence or slight mistake in the draft of the bill that has been submitted to the Representatives taking part in these conferences there are six lines bracketed.

Mr. Putnam. They are not bracketed in the official bill. They were left out of the bill as introduced.

Mr. Sullivan. I respectfully request that section 13 of the bill as presented to the Representatives taking part in the conferences here be revised in the Senate bill so as to include the paragraph that is bracketed in the draft of the bill sent out to the delegates.

Mr. Putnam. Well, Mr. Sullivan, I want you to be clear about this. The bill as introduced into Congress did not contain those brackets. That was a draft sent out some time ago, and the bill as introduced in Congress has not those brackets.

Mr. Sullivan. (after examining the official copy of the bill). That is on page 9; that is all right.

Mr. Currier. It is right as it is, as we understand?

Mr. Sullivan. It is right as it is. That is all right, then; we have no objection, Senator, to the bill as it stands. I only wish to say at this time that that bill has already passed the lower branch of Congress.

Mr. Currier. You refer to section 13?

Mr. Sullivan. Yes, sir; and Representative Currier knows it has also passed his committee. We respectfully submit the resolution to your hands, and I desire to be heard on it to-morrow.

Mr. Putnam. Mr. Chairman, with your permission Mr. G. Howlett Davis, of New York, desires to be heard as representing inventors who have allied themselves particularly to these devices for the reproduction of music to the ear. Mr. Davis's suggestion was that as the composers had been heard as the creators of the music in the first instance, one who is engaged as an inventor in the production of these devices should first be heard on the other side.

Mr. S. T. Cameron. May it please the committee, Mr. Chairman, I am one of those who are representing the interests of the talking machines of the country.

The Chairman. Whom do you represent?

Mr. Cameron. I represent the American Graphophone Company of New York.

The Chairman. Do you desire to be heard by the committee?

Mr. Cameron. Yes, sir. I wish to say at this point, however, sir, that with all due respect to the Librarian, it would seem to me that there is no good reason existing why he should depart from the mode of procedure in connection with these talking machines that has been taken in all the rest of the bill—that is, that those who are the proponents for the changes in this bill that are of a very radical nature and very radically different from existing law should present to the committee their reasons for such changes, before hearing from the opponents of the bill.

Mr. Putnam. I had no intention, Mr. Chairman, of departing from that mode of procedure. I understood that two gentlemen in behalf of these provisions had been heard, Mr. Sousa and Mr. Herbert; and I had also been informed that the other interests, including those of the publishers, did not care to be heard at this point; they were content to have the provision before you as the affirmative. I desire now that the opponents of the bill should have the fullest opportunity, at the earliest possible moment, to present their views to the committee. The opponents have not advised me as to whether they had agreed upon any method of presenting their case. I simply had this suggestion from Mr. Davis which I laid before you, and the fact that Mr. O'Connell, representing ten manufacturers of automatic piano players, also wishes to be heard.

Mr. Paul H. Cromelin. Mr. Chairman, as the representative of the Columbia Phonograph Company, I should like to know whether it is the purpose of this committee to sit to-morrow. I had promised certain gentlemen in New York City to telephone them between half after 12 to-day and 1 o'clock, so that they can leave on the Congressional Limited and be here to-morrow, if it is your intention to-morrow to hear the opponents of this bill.

The Chairman (after consultation with other members of the committee). We will meet to-morrow morning at 10 o'clock.

Mr. Cromelin. And may I ask also, Mr. Chairman, if it is your intention to continue these proceedings this afternoon?

The Chairman. We will continue this session until about half past 1.

Mr. Cromelin. Thank you very much.

Mr. Albert H. Walker. Mr. Chairman, I wish to inquire whether the committee is willing to sit also on Saturday to continue the hearings?

The Chairman (after further consultation). It is the purpose of the committee, if possible, to finish its hearings to-morrow.

Mr. Walker. I wish to suggest to the committee that this bill is incomparably the most important measure that has been before any Committee on Patents of either House of the American Congress at any time since the civil war, and I think it is the most important measure that ever was before any Committee on Patents of the American Congress since the enactment of the patent law in 1836.

The Chairman. It is not the purpose of the committee to deprive anyone who desires a hearing of that privilege. On the contrary, the committee will sit so long as anyone desires to be heard, within any sort of reason.

Mr. Walker. If the Senator will permit me one moment, I am prepared and have been preparing myself through a rather long lifetime to elucidate the subject of copyright law; and I appear before the committee in the interests of the American people and also in the interests of the authors.

The Chairman. How much time do you wish, Mr. Walker?

Mr. Walker. I wish at least two hours, and I can take it at any time at the convenience of the committee, at any day.

The Chairman (after further consultation with the other members of the committee). We will hear you, Mr. Walker, one hour to-morrow morning, if we are unable to reach you to-day, with the privilege of submitting in writing your views if you so desire.

Mr. Walker. If the chairman will allow me to make the suggestion, if I were to be heard to-morrow for an hour, that would probably cut off other gentlemen who would wish to speak much shorter than that, and it would be very convenient for me, if the committee is to sit at all on Saturday, to hear other gentlemen on Friday and let me speak on Saturday.

The Chairman. If we are compelled to hold a session on Saturday, we will hear you on that day; but we hope that the gentlemen who are present to present their views to the committee will finish in such time as will permit you to have your hour to-morrow morning.

Mr. Walker. Then, is it understood that I am to speak first to-morrow morning?

The Chairman. I think not.

Mr. Currier. There are some other gentlemen here who will want five or ten minutes.

The Chairman. Inasmuch as you prefer to go over until Saturday, if convenient to the committee, I should think that the members from out of town and the other gentlemen here should be first to address the committee.

Mr. Walker. That is very agreeable to me.

Mr. Sousa. I sincerely trust, Mr. Chairman, that in Mr. Walker's discussion it will not be permitted to discuss the copyright of the past. We are not after that. We want a copyright of the future. If he will talk about things that will be for the benefit of the future, I think you should give him the time; but if he is going into a discussion of what was done a hundred or two hundred or three hundred years ago, we do not want it. [Laughter.] That is the past; we want the future.

Mr. Cromelin. Mr. Chairman, I would like to give notice, as the representative of the Columbia Phonograph Company, representing large interests which are vitally affected by this bill; as the representative of a company which knew nothing of this proposed legislation before the publication took place on the 31st of May; as the representative of a company that was not invited to take part in the so-called conferences, notwithstanding the fact that its industry is so broad that it embraces the world, that I would like to be heard, and that it will probably take at least one hour or two hours to present this subject in all of its ramifications to your committee. It was my understanding that the committee would adjourn to-day at 12 or 1 o'clock, and in view of the fact that the opponents of this measure have had to come together quickly, and that they have had no time to organize, while on the other hand those who are proposing it have had conferences for more than one year, I propose, sir, that it would be meet and proper at this time to adjourn this conference until to-morrow morning, giving the opponents of the measure a chance to decide upon a plan of action for presenting this matter to your committee, and that we will come here to-morrow morning and present the various views of those who are interested.

I therefore suggest the advisability of a postponement until to-morrow morning or an adjournment.

The Chairman. Do I understand that all the opponents of the provisions of this law relative to talking-machine devices can be heard within one hour?

Mr. Cromelin. No, sir. I speak on behalf of myself, for my own industry only. There are others——

The Chairman. How many desire a hearing?

Mr. Cromelin. I believe that there are at least a half a dozen gentlemen who desire a hearing.

The Chairman. Does each want one hour?

Mr. Cromelin. I do not know how long it will take them to present their views.

The Chairman. We established a rule at the beginning of the hearings yesterday limiting the statements to ten minutes each.

Mr. Cromelin. I understood, Mr. Chairman, that that was in regard to the proponents of the measure. I did not understand that you intended to limit those persons whose interests are vitally affected by this measure to ten minutes to reply. I do not believe that is the intention of this committee; and I submit the question to the honorable chairman.

Mr. Chaney. Mr. Chairman, it is entirely out of all reason to expect us to remember what these gentlemen will say. We will want a good deal of it in typewriting anyhow; and they can simply give a synopsis of an argument here as to what they want to do, and we must expect them to submit to the committee in writing for our use such matters as they seem to think important for our consideration when we are giving the bill consideration. They do not need so long a time to make a speech here. Let them prepare their matter and hand it in.

Mr. Cromelin. Mr. Chairman, we hope to file briefs in addition to the oral statements.

Mr. Currier. As far as the House committee is concerned there is no expectation that there will be a report of this bill at this session of the Congress.

Mr. Cromelin. Will the gentleman be good enough to state that positively on behalf of the committee, so that the interests that ought to be represented here to-day, and whose representatives must remain away, can be satisfied on that point?

Mr. Currier. I can state it most positively, as far as the House is concerned.

Mr. Cromelin. I thank you very much.

The Chairman. And the same is true so far as the Senate is concerned.

Mr. Cromelin. I thank you very much. We have endeavored to get that information from the Librarian, and he stated yesterday that it was highly improbable, but he could not state——

Mr. Putnam. Mr. Cromelin, if you will excuse me, I said that I had no right to give any such prophecy on the part of the committee; it was not within my control. You will do me the justice to say, Mr. Cromelin, that I added that when the copyright office asked for this bill to be introduced it had no expectation itself of any possibility of its being reported at this session.

Mr. Cromelin. Thank you very much for the information I have gotten from the Librarian and from the chairmen of the respective committees. That assures us on the point, for the first time, that this bill will not be reported at this session of Congress.

(After a consultation between the members of the committees:)

The Chairman. The committee has decided that it will hear some representative of all these interests, if they shall so desire, not exceeding an hour, with the same permission to supply in writing such matter as they may desire, as was given to Mr. Walker. I might add that it seems to us that the representatives of these interests can state concisely in that time their objections to the bill as introduced in the Senate and House, leaving the details to be supplied in writing, as I have suggested. It does not seem necessary to us, unless it is desired by these representatives, to have each gentleman representing each manufactory make a speech to this committee. We think that it will be giving you all a fair opportunity to be heard to comply with the suggestion that has been made.

Mr. Webb. The interests are about the same.

The Chairman. The interests are precisely the same, as I understand it, so that the objections must be along the same line.

Mr. Cromelin. Mr. Chairman, may I merely state that as regards sound records as understood by a phonograph record, a graphophone record, or a telegraphonic record, the interests may not be the same. We are standing together against the whole measure; but it must be fully understood that in so far as relates to the reproduction of sounds previously produced, there may be a distinction between a sound-producing machine and a sound-reproducing machine.

The Chairman. We think that those distinctions can be very well brought out in your written communications to the committee.

Mr. John J. O'Connell. Mr. Chairman, perhaps if the suggestion of Mr. Cromelin were complied with—that is, that a recess be taken until to-morrow morning at 10 o'clock—the various interests covering the music rolls and the phonographic records could get together and decide how to present their views to this committee, and in that way save time; and afterwards each could enlarge in his written brief on the points which he wishes to make.

Mr. Chaney. That is so as to that particular thing, but if there is someone who wishes to be heard on some other point, why not hear him now?

The Chairman. We will postpone this question until to-morrow morning, and we will hope to finish that branch of the case, as well as the argument of Mr. Walker, to-morrow morning from 10 until 12.

Mr. O'Connell. As I stated to the chairman, the only thing in which my clients are interested is the music rolls, and that is the only question I personally wish to present to this committee. Perhaps the same question may be embraced in the points to be raised by the phonographic record people as well.

The Chairman. And I will say to you and the other gentlemen who are interested that you can divide that hour between yourselves as you may please, or you can select some representative to take the entire hour.

Mr. Currier. Mr. Remich, of New Hampshire, is here, and wishes to be heard briefly on another section of the bill.

STATEMENT OF DANIEL O. REMICH, ESQ., OF LITTLETON, N.H.

Mr. Remich. Mr. Chairman, I appear here to-day in behalf of the stereoscopic view manufacturers of the country. There are at least twelve large manufacturers of this description of views. There may be some that are not familiar with that class of view; it is the double view that you look at through the stereoscope. The firm to which I belong is the founder of this business, D. W. Kilburn & Co., of Littleton, N.H., in the White Mountains. There are, as I say, now twelve large concerns, which are competitors. I appear here in behalf of the stereoscopic view manufacturers, who approve of this bill, except one provision, and that is the provision as to the copyright fee.

Mr. Currier. What section is that, Mr. Remich?

Mr. Remich. That is section 60. You will notice that under the old law the fee for copyrighting was 50 cents. The fee is now made a dollar, which advances that expense upon our industry 100 per cent.

Inasmuch as the report of the office shows that there is a good handsome surplus of cash received, more than enough to pay for all the expense of maintaining the Copyright Office, and in addition to that some 213,000 objects, which the Librarian says are of great value to the Nation—books, paintings, etc.—and in view of the small profit in the manufacture of our goods, and the fact that in the conduct of our business we have to make long-term contracts with general agents who handle our goods, selling them over the entire world, and that our contracts have been made for a long term of years, this 100 per cent advance upon our class of goods would practically put us out of business.

Mr. Chaney. Suppose we except those views?

Mr. Remich. I have no objection to that. You will see that they have tried to modify this provision somewhat by a section at the bottom of the twenty-fifth page of the conference report, in which they say——

Mr. Currier. The thirty-eighth page of the bill, gentlemen.

Mr. Remich. The thirty-eighth page of the bill, in which they say:

Which includes our class of products—

As a lawyer, I suggest that would inject a dangerous element into our business, if we tried to copyright a series of pictures which we claimed only differed from each other in pose, and we should have more litigation on our hands in a month than you could shake a stick at. It would ruin any stereoscopic view concern in a little while.

As I suggested in our conference, that clause would apply satisfactorily to gallery work where a man, for instance, took my distinguished friend, the Representative from my district, Mr. Currier, in a gallery, and took a side view, a front view, a view standing up, a view sitting down, a view with his chin turned up, and a view with his nose turned out. In such a case there would be no change save in pose. But we send artists all over the world. We had an artist in the Japanese army during this war, and with the Russian army, and in the South African war, and in Cuba, and in the Boxer war. Our negatives are largely snapshots of moving objects and things. We may get one distinguished general in one snapshot, the next negative we make will show another distinguished general.

If we go to a great parade to make negatives, as we did at the Czar's coronation in Russia, we are liable to get more than 500 different negatives, and they all differ in something besides pose and composition. You will see that a clause of that kind will make it absolutely impossible for us to take advantage of it, although any gallery artist could take advantage of it with success and safety.

The Chairman. Have you the form of an amendment which you propose?

Mr. Remich. No. I have not framed any amendment. An exemption of the stereoscopic manufacturers from the $1 fee would be perfectly satisfactory to us.

Mr. Currier. Not the exclusion of the entire fee? You do not mean that?

Mr. Remich. Not at all; we are perfectly willing to pay our 50-cent fee, although it amounts to a tremendous sum in our business, because we take so many negatives. To show the extent of our business, permit me to say that we have over 17,000 different subjects in stock ready for delivery. We have over 160,000 different negatives at the present time, and are importing them constantly and making them in this country.

The Chairman. The reason I asked the question was because the language here indicates that the exception you propose should be inserted with much care.

Mr. Remich. Yes.

The Chairman. And I will be glad if you will draw your proposed amendment and insert it in the record.

Mr. Remich. It seems to me it is going to be a difficult thing to make an exception. What is the necessity of an advance in the fee? Why is there any necessity for a change of the fee when in England, as I understand it, they charge only a shilling for doing this work, which is one-half of what we pay, and when, in point of fact, we are getting a handsome surplus—as the report of the copyright office shows, over $130,000 profit in the last six years? The office is not intended as a revenue producer. It is simply designed to protect the manufacturing interests of the country by copyright.

Of course to the man who is producing a painting or a valuable book which he may sell and obtain in royalties $50,000 on, it does not make any difference. Some men have told me they do not care; they wish the copyright fee could be $75, because larger fees for copyrighting would tend to keep out a lot of fellows. But we have a great big industry which is employing a large number of people which would be ruined by these additional charges.

The Chairman. Your suggestion, then, is to reduce the fee prescribed in section 60 from $1 to 50 cents?

Mr. Remich. Yes; leave it exactly as it is now; yes, sir.

The Chairman. Were you present at the hearing yesterday?

Mr. Remich. I was not present; no.

The Chairman. Mr. Putnam commented upon the situation, stating that the fee under existing law was 50 cents, and the fee for certification was 50 cents, and the only difference between the existing law and this bill upon that subject is that in all cases a certificate is to be issued, making the entire fee $1.

Mr. Remich. You can see the effect of that. In my experience in connection with the view business, for twenty years, we have had occasion to get but five certificates. Think of that. We have paid $2.50 in the whole time, whereas under this bill we shall be compelled to take a certificate at an expense of half a dollar with every negative that we copyright, whether we want it or not.

Mr. Chaney. How many times have you gotten certificates now?

Mr. Remich. I say, that in all my experience with the view business—and I have been connected with it ever since I married Mr. Kilbourn's daughter and went into the firm in 1890, sixteen years ago—we have had only five certificates.

Mr. Chaney. What is the object of your having those certificates?

Mr. Remich. We took them simply because we had a few views pirated, and in the litigation we wanted to show the fact that they were legally copyrighted by a certificate from the office. But this law is going to compel us to take out thousands of certificates that will be of no earthly use to us. This extra expense will practically drive us out of business. This is no "pipe dream," but an absolute fact.

Senator Mallory. You do not object to the 50 cents for the fee and 50 cents more for the certificate?

Mr. Remich. Not at all; only we do not want to be compelled to pay half a dollar each for thousands and thousands of certificates that are of no earthly use to us.

Mr. Chaney. I take it that the purpose of this law is to provide a notice in some form or other for everything, and this is in that nature.

Mr. Currier. No; this is not in the nature of a notice. This certificate gives no notice to the public.

Mr. Remich. They would have to come here and dig out the records if they wanted to find out about that. The only argument that I have heard in favor of this suggestion is that it will diminish the amount of work that will have to be done in the copyright office. If they can make one certificate cover twenty views or twenty-five views or a hundred views, they will not have to make so many certificates. Is there any good reason why my business should be ruined to accomplish such a result when there are plenty of people that want to work in the office and when the present revenues are amply sufficient to pay for all the work done? In my town we are exempting property from taxation and offering big financial inducements to bring manufacturing interests into our town, because they are going to employ more labor. I do not suppose Washington has reached the point where it has so much population that it does not want more men and women employed in Washington, performing honest day labor and earning good money to be expended in the city.

Senator Mallory. What is the reason assigned for uniting these two fees in one; do you know?

Mr. Remich. I was not here, and I did not hear the reasons.

Senator Mallory. I was not here, either, so I do not know.

Mr. Putnam. For the benefit of the Senator I might explain that the idea was this, Senator: That the office will hereafter furnish the certificate in all cases as a matter of course, which heretofore has been furnished only when requested; and that in furnishing it it should charge for it as heretofore, making the charge therefor $1.

Senator Mallory. Still, the certificate is not necessary except where it is desired to prove the fact that the copyright has been secured.

Mr. Putnam. It was with the idea that it was a precaution that the copyright proprietor ought in reason to take.

Senator Mallory. I have no doubt that there are many persons situated as this gentleman is who do not want any certificate except in very rare cases.

Mr. Remich. That is right.

The Chairman. To what extent do you now issue certificates?

Mr. Putnam. Mr. Register, to what extent is that done?

Mr. Solberg. For last year the total of registrations numbered 116,000, and of those 28,087 were certificates.

Mr. Remich. That is about one-fifth.

Mr. Solberg. It should be remembered that requests for certificates additional to the certificate paid for at the time of registration are constant, and in addition to fees submitted to secure certificates, constant inquiry is made of the Copyright Office and answered at some service cost as to what entries have been made by particular firms. They ask us "just what entries did we make in May last?"

The Chairman. What were the gross receipts of the Copyright Office for the last fiscal year?

Mr. Solberg. The receipts—this is for the calendar year, Senator, those being the latest figures which I have.

The Chairman. Very well.

Mr. Solberg. The fees for the total calendar year were $78,518, of which the certificate fees were $14,043.

The Chairman. What are the expenses of the office?

Mr. Solberg. The total expenses of the office can not be given. The comparison given here is between the appropriations for service only, and I could give you that for the year.

Mr. Putnam. That is for the fiscal year. In this case we have had to take the last fiscal year, with your permission.

The Chairman. Yes, sir.

Mr. Solberg. The fees for the fiscal year ending June 30, 1905, were $78,058. The appropriations for service during the same period were $74,662.46—the appropriation expended for service, but the only element covered is service cost. It does not cover printing, stationery, or any supplies, nor the printing of the catalogue of entries, which include all registrations made at any fee, even if no certificate is paid for. That is estimated at $25,000 per year—the printer's estimate for printing. If that is included with all other expenses, the fees do not cover the total expenses of running the office.

Mr. Chaney. By how much?

Mr. Solberg. I have not been able to ascertain the exact figures for printing, but I should suppose that the balance might be some thousands of dollars against the office.

The Chairman. You have some figures, Mr. Remich; you made some statement earlier in your remarks upon that subject.

Mr. Remich. Yes, sir. I took this leaf from the report, and I will read it. This is the last year's report of the office:

Then they say:

Mr. Chaney. But they do not produce any money.

Mr. Remich. They do not produce any money—that is so; but they save you making an appropriation. This saves the Appropriations Committees of both House and Senate from appropriating money each year to buy these things that you would otherwise have to buy to place upon the shelves of the Library. Now, I want to do my share, and I want my business to do its share, toward supporting this Government. But I do not think, in view of this report, that there is any good reason why this great, rich Government should place this increased burden upon our industry.

Mr. Chaney. Do you not argue unfairly when you undertake to bring in the Library as against the proposition?

Mr. Remich. I am not trying to bring in the Library as against the proposition. Every author has to file two copies of his book, and they are placed in the Library. I say that if they did not do that, Mr. Putnam, the Librarian, would have to take money out of his appropriation and buy these books. I should suppose that that would be so. Otherwise he would not say that they were of great value. I am willing, if they want to make a certificate of every view we have and send to us, for any convenience of the office, to take them; but to force us to pay for thousands and thousands of certificates, which will make it impossible for us to make a profit in the manufacture of our goods at the close margin under which the business is conducted under our contracts, would be a hardship, and I do not believe you want to drive us out of business in that way.

Mr. Chaney. We certainly do not want to drive you out of business.

Mr. Remich. It seems to me that it would have that effect.

Mr. Chaney. But I take it that the Librarian's purpose was to try to make this thing pay its way.

Mr. Remich. I have no doubt about that. Mr. Putnam and Mr. Solberg have told me that by this consolidation of subjects many certificates could be saved. I should be glad to comply with their suggestion if our business was of such a character that we could do this series work; but you can see the difficulties.

Mr. Putnam. We want to be as clear as possible, and to meet this difficulty. Let me ask you this: Do you not do any series work, or is it only that you do not do work in a series under this limitation as to pose or composition?

Mr. Remich. We do not do that class of work.

Mr. Putnam. If the words "only in pose or composition" were stricken out, would there be a material reduction in your fees? In the first place, it seems to me that it would be convenient for us to know—how many copyright entries do you make in the course of a year?

Mr. Remich. I can not tell.

Mr. Putnam. Have you any idea?

Mr. Remich. It varies with different years.

Mr. Putnam. Would it run up into thousands?

Mr. Remich. Some years I think it does.

Mr. Putnam. If you were privileged to register under one fee works in a series——

Mr. Remich. But what would be a "series?" That is the question.

Mr. Currier. Representing the same subject.

Mr. Putnam. Representing the same subject under the same title with only slight variances, but not the variances described here as "only in pose or composition." What we would like to know is, would it enable you to enter a great many of these articles under one fee that you now enter separately?

Mr. Remich. That depends upon what you call the same subject.

Mr. Currier. Is seems to me that you would have to introduce the word "general;" that is, make it read "the same general subject."

Mr. Remich. If you introduce that who will decide what is the same general subject, except the courts? It would encourage law suits.

The Chairman. It would be the Librarian, would it not?

Mr. Remich. His decision would not be final. The law says we can go to the courts and test his construction.

The Chairman. It would be the Librarian, so far as your fees were concerned?

Mr. Remich. Yes; but we do not want to pay a fee unless it is to be registered in such a way that the court will hold that we have a legal registration. We have an artist in San Francisco; and if we could register under one entry all the views that he will take in San Francisco while he is there, which will probably be 500 different subjects, for half a dollar, we would like to do it. But what subjects that he takes in San Francisco can we include as a series and have protected? He will take the Pacific Hotel, showing its ruin and present condition, and he may take a Chinese camp, and he may take the Flood Building, and so on. How many can we get into a series and have the court protect us when we come to try a case? That is the difficulty.

Suppose this said you shall enter under a series all churches in Paris—under one entry fee, for 50 cents—that we may enter all negatives that we take of churches there. How will you describe it in your entry upon the book? Suppose we go to Rome, where they have 365 Catholic churches; they are not grouped in any way; we can not pose them. How will you describe the 365 views? Will you describe them as 365 views of the churches of Rome, or will you specify them under one head? You can see the difficulties, gentlemen.

Mr. Putnam. Do you not publish those in series for selling purposes sometimes?

Mr. Remich. No. In selling we do this: We have a pictorial illustration of the Holy Land. It includes perhaps fifty pictures, but it covers the whole of the Holy Land. One is taken in Jerusalem, one in Jaffa, and one at Damascus, for instance. We should be glad to comply with any law that will protect us and not inject doubts into our business and encourage piracy.

Mr. Currier. Mr. Webb desires to know if this amendment would take care of your matter: "Insert after 'seal,' in line 6, page 37, the words 'provided only 50 cents shall be charged for each stereoscopic view filed and registered.'"

Mr. Remich. That is all right. And if we want a certificate in our business, we will come and, as the old lady said, "heave down our 50 cents and get it."

Mr. Putnam. "Provided, That in the case of stereoscopic views the certificate should not be furnished unless required, and in that case the fee shall be," etc.

Mr. Currier. And in such case no certificate shall be issued unless the regular fee is paid.

Mr. Remich. That is perfectly satisfactory; but any attempt to define by series is sure to be unsatisfactory.

Mr. Currier. I think you may be right about this matter of series.

STATEMENT OF A. BELL MALCOMSON, ESQ.

Mr. Malcomson. I intend, Mr. Chairman, to be brief. The remarks that I shall make are pertinent more to correct the law so as to make it more definite than for any other purpose. I have prepared a short statement of just what the changes I propose are. The matter is one relating to lithographs. I represent Mr. McLaughlin, or McLaughlin Brothers, who are probably the largest lithographers in the country. Mr. McLaughlin has spent millions in perfecting that art in this country. He, unfortunately, is abroad at the present time, and has asked me to be here to represent him.

Lithographs have always been mentioned in the former copyright bills. A lithograph is something different from any other production of a picture or of any pictorial illustration. But in this case it has been thought by the framers of the bill that the words "print or pictorial illustration" would cover lithographs.

The Chairman. Please refer to the section of the bill that you wish to call attention to.

Mr. Malcomson. I am referring to page 4, line 4.

Mr. Chaney. "Prints and pictorial illustrations?"

Mr. Malcomson. Yes. The word "lithograph" is not mentioned in the subjects of copyright. It has always heretofore been mentioned. The suggestion that I find in the little memorandum that was attached in relation to the bill is: "It is assumed, however, that these will be included under the more general terms as prints and pictorial illustrations;" that is, that lithographs, it is presumed by the framers of this bill, will be included under that term.

Lithographs, as I say, are something entirely different from any other production, and I do not think—and I hope the committee will agree with me—that they are entirely and specifically included. Lithographs are not included under that term.

Senator Mallory. How about engravings?

Mr. Malcomson. Engravings are prints. The lithographic process is something different from the mere printing from an engraving. The lithographic process is a very peculiar and a very interesting one. It would take too long for me to go into it and describe it, but it is entirely different from printing. The use of the colors, the manner in which the ink or the color is transferred from the stone to the paper, is not the mere act of printing. The color, I will say in brief, is held there by, as it were, grease. Grease forms a material component in the practicing of the lithographic process.

The matter of lithographs has always been mentioned. The subject of lithographing has always been mentioned in previous bills, and not only that, but in this bill the lithographic process is specifically mentioned, and I shall come to that next. But the suggestion now is that there is a sufficient difference between lithographs and all other prints and pictorial illustrations to warrant the word "lithographs" being inserted there.

Mr. Currier. Then you would insert, after the word "prints," in line 4, on page 4, the word "lithographs?"

Mr. Malcomson. Yes, sir. That is my proposition. I do that because particularly in a late decision of great importance, made by the circuit court of appeals in our second circuit, they have used this language——

The Chairman. That is the decision that has already been put in the record?

Mr. Malcomson. I think it has. It has been handed in to the committee. A printed copy of it has been loaned to me, and I will read an extract from it to show the pertinency of my remarks about interpolating this word "lithograph:"

I think that I am warranted, in view of that late decision, in asking the committee to interpolate that word "lithograph."

The Chairman. What do you say to that suggestion, Mr. Putnam and Mr. Solberg?

Mr. Putnam. I prefer that a suggestion as to phraseology in a section that has been so very carefully considered by our general legal advisers, these two committees of the bar association, should be submitted to them for their opinion as to its necessity and effect; and I think it would not be helpful to the committee to have me give an offhand opinion upon it.

Mr. Chaney. I do not think there is much doubt that that lithographic process would not be included in merely a pictorial illustration.

Mr. Malcomson. Or in a print.

Mr. Chaney. Or in a print, either.

Mr. Malcomson. It might possibly be in a print; but a print might be construed by the courts to be something in which type and ink, or a plate and ink, is used.

The Chairman. Was this matter taken up at the conferences?

Mr. Malcomson. I do not know. I was not present when it was specifically discussed. I was present at one of the conferences, but not when this was specifically discussed. I have always urged upon the Copyright Office, with whom I have colabored in this matter, that it should be included. And I am now here to stand up for it. I shall ask leave to be heard again on this, in view of the fact that Mr. Putnam states that he wishes to discuss it with the parties who drew the bill. I ask to be heard again at some subsequent hearing.

I pass on now to page 8, and the next suggestion that I have to make is in line 21 on that page. We know from what I have said, or we have an idea of what a lithographic process is. In this section, which is on page 8, is the restriction in relation to the printing of books or of lithographs, which are copyrighted in this country, in a foreign country and importing them here. That applies to this case. In Germany they can do this kind of work and beat us out of our boots. We can not compete with them at all in that line of work. To such an extent is that so that to-day the pictures of our Capitol, the pictures of all prominent buildings in our cities, are printed on postcards, and you will find on these cards a little statement, if you look at it, "Made in Germany." That is so throughout our cities. They are not copyrighted, of course. If they were copyrighted they would have a protection which they do not now have; but that is the fact.

In this section 13, on page 8, to which I am referring, there is a provision that where the book is copyrighted the type shall be set up in the United States and the book shall be printed in the United States. I will read section 13, so that we can comprehend it [reading]:

Now follows the matter that I am objecting to: "Except where in either case"—that is, in the case of the book being produced by lithographic process, or in the case of a separate illustration being in the book—"except where in either case the subjects represented are located in a foreign country." Now, the lithographic process is not one in which a man goes and sets himself down in front of a mountain and works his process and takes his color scheme from the mountain, or one in which he goes in front of a building in a foreign city and sets up his lithographic process and conducts it there, at all. Why that exception? What is the meaning of it? I have had no explanation of it. I can not get any. It is said, "Well, the picture may represent a building in a foreign country or foreign scenery." Not at all.

There is no necessity for that exception in those cases. If a foreign scene is to be reproduced by a lithographic process, a photograph is taken of it in the foreign country, or a sketch is taken of it in the foreign country. The color scheme is then developed by the artist, possibly there, but no part of the lithographic process is necessary to be conducted in the foreign country at all. It is brought over here, and in the factory, in the print works in Brooklyn or Detroit or some other part of the United States, the lithographic process is then practiced.

Mr. Chaney. What effect does this section have?

Mr. Malcomson. It would have the effect of throwing into the hands of the German lithographer all lithographic work in relation to pictures or paintings which related to any foreign city or foreign landscape. That is what the result of that exception would be. Every foreign landscape, every foreign building that is depicted by a lithograph under that section is outside of the restrictions of this section 13. That is what that means. You can not reason it out any other way; and that is the reason we except to it. We say we are properly protected by section 13, and that that exception should come out.

Mr. Chaney. As you explain it, I think it ought to.

Mr. Campbell. Just what do you want to strike out?

Mr. Malcomson. I want to strike out those words that I have read. If the committee will be kind enough to mark the words, I will read them, on line 21, page 8: "Except where, in either case, the subjects represented are located in a foreign country." That ought to come out, for two reasons. It is ambiguous——

Mr. Currier. It would not occur to me that it is ambiguous.

Mr. Malcomson. Well, it is pretty straight, I think, in one way.

The Chairman. Where is your next point?

Mr. Malcomson. The next one, if the committee please, is on page 14, line 15. That is exactly to the same import as the one on page 4, because it inserts the word "lithograph" after the work "print," you will see.

Mr. Currier. You think it should be inserted there after the word "print," again?

Mr. Malcomson. Yes. The same argument that I made before will apply to that.

Mr. Currier. If it needs to be in the other place, it should be put in here, also.

Mr. Malcomson. That is all that I have to offer. I am exceedingly obliged to you for your attention.

Mr. Campbell. Just a moment. I understood your objection on that page 4 and this last one is that the word "print" does not cover a lithograph?

Mr. Malcomson. My objection is that it is a question—that it would leave a question for the courts; and in so far as it is really meant to be there, and we have had a decision of one of our highest courts of appeal, unless they get a writ of error and go to the Supreme Court of the United States, using the language that I have just read to you in relation to this copyright law, that it is a statutory law, and that it must be construed strictly—with those facts before me, I urge upon the committee that we do not leave that question open.

Mr. Campbell. What I wanted to inquire was just this: Do you not understand that the word "print" in its ordinary significance and meaning in the dictionary covers the lithograph?

Mr. Malcomson. I understand that a "lithographic print" is a proper term; but I understand that that word "print" might be construed as not broad enough to cover a lithographic print. There are prints from engravings. They are prints; and in the old law, we have the word "cut." "Cut" and "print" are substantially the same, and there is a decision, which I have not gone into, because I do not want to take up any more time than I can help——

Mr. Currier. I see no objection to inserting the word "lithographs," if there is any doubt about it at all.

Mr. Campbell. What I want is information as to whether or not, in his experience, it is not already covered by the word "print." Under the ordinary definition in the dictionary, it seems to be perfectly covered.

Mr. Chaney. That decision that he referred to a while ago leaves it somewhat in doubt.

Mr. Malcomson. I wrote a 15-page brief once on that part of the statute which related to "cuts" and "print" and discussed the subject most thoroughly; and it made me feel that we ought to have the word "lithograph" in there.

Mr. Putnam. Can you tell us whether in case the word "lithograph" is put in there, it might be necessary to put in the words "etching" and "engraving?"

Mr. Malcomson. No.

Mr. Putnam. You make an entire distinction, as I understand it?

Mr. Malcomson. Yes; an etching and an engraving would come under a pictorial illustration, without any question. An etching is a pictorial illustration of a subject, certainly, and an engraving is a pictorial illustration of a subject; but a lithograph, when the word is used subsequently in the law, it seems to me should have a place in the section which provides protection for certain subjects.

Mr. Campbell. I find here that in the dictionary, under the noun "print," is this definition:

Mr. Malcomson. I agree with you that the courts might hold that that was sufficient to cover it—that the word "print" would cover a lithograph, and I should contend so before the court; but it is this late decision which leads me to feel that, in so much as it is not going to do any harm, why should we leave it out? Why should we leave it out?

The Chairman. Are there any other gentlemen to be heard now?

Mr. Putnam. Mr. A. Beverly Smith, speaking for the Reproductive Arts Copyright League, and particularly for certain groups of lithographers, simply desired me to say that he thinks also that the word "lithographs" should go in, but that it should go in in a separate subsection, and should be coupled with the word "posters." On the other hand, I ought, to complete the record of this day, to call your committee's attention to a communication from Mr. Ansley Wilcox, which has been presented to the committee. He was here in behalf of an establishment that gets out lithographs, and particularly posters, and he was at the conference particularly concerned about the protection of that material. He writes, and his letter has already gone down to be put in the record, or I should read it; but substantially this, that he considers the specifications of those subsections as very liberal and fully covering all that he is interested in. This is simply for your information.

Mr. A. Beverly Smith. May I correct the statement of the Librarian, Mr. Chairman? I do not think it is necessary that the word "lithographs" should go in there.

Mr. Putnam. I beg pardon, then. I thought you did.

Mr. A. Beverly Smith. I agree with the statement made to you by the Librarian regarding consultation with your legal advisers as to whether or not it should be put in. If you decide to put it in, I think it would be much wiser not to couple it with prints and pictorial illustrations at all, but to make a separate classification. And if you do decide, after consultation, to put lithographs in, I think that that will also require the word "posters" to be put in. I personally do not believe that either one is necessary to be defined separately.

(Thereupon the committee adjourned until to-morrow, Friday, June 8, 1906, at 10 o'clock, a.m.)

Committee on Patents,

House of Representatives,

Friday, June, 8, 1906.

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

Present: Senators Kittredge (chairman), Smoot, and Latimer; Representatives Currier, Campbell, Chaney, McGavin, Webb, and Southall.

Mr. Currier. Mr. Solberg, yesterday, when Mr. Cutter was testifying, I asked him this question: "Can you import two copies of an unauthorized edition?" He said, "Yes, sir." I asked, "Can you do that to-day?" He answered, "Yes, sir; we can now." I asked, then, "A fraudulent reprint, for instance?" "Yes, sir." "There is absolutely no restriction, as you understand it, to-day?" "There is no restriction at all, as I understand it, to-day."

I would like to ask you if you understand the practice to be as Mr. Cutter states?

Mr. Solberg. The prohibition of importation was introduced into the copyright law by the act of March 3, 1891, and it was a prohibition of importation additional or extra to that which is supposed to have existed in copyright law against any unauthorized copies. The law as it stood prior to that provided that these unauthorized copies could only be permitted importation upon the consent of the copyright proprietor. That is, the author himself or the copyright proprietor could import even a fraudulent copy.

Mr. Currier. That was prior to 1891?

Mr. Solberg. Yes. But in the act of March 3, 1891, it is stated, in connection with the typesetting clause, that copies of books not printed from type set within the limits of the United States or from plates made therefrom shall not be imported: and then certain exceptions are introduced, and one is an exception directly on behalf of the individual buyer. The other exceptions are on behalf of libraries, which consist in paragraphs of the free list of the tariff act taken over into the copyright law. It is therefore a matter of interpretation of the law what the interpolation of these exceptions means. Now, I can not authoritatively give that interpretation.

Mr. Currier. I would like your understanding of the practice since the law of 1891.

Mr. Solberg. Perhaps the best light I can throw on that is the statement that there is an opinion from the Department of Justice, the Attorney-General, that the exceptions would not bar an unauthorized copy.

Mr. Currier. Then you understand that Mr. Cutter is right in what he says?

Mr. Solberg. I would understand it so far as that decision or opinion would be supported and would be taken as final.

Mr. Currier. Is there any opinion in conflict with that?

Mr. Solberg. There are a number of opinions, none directly in conflict; none directly upsetting that.

Mr. Currier. Do you know what the practice of the Treasury Department is now?

Mr. Solberg. No; I am not competent, I think, to say; but Mr. Montgomery could answer that question if he is here, because it comes under the collector of customs.

Mr. Currier. If there is any gentleman present who has information on that subject and can answer that question we would be glad to hear from him.

Mr. Putnam. Mr. Montgomery was here yesterday; I think he will be here a little later. I think it might be helpful, if you will permit me to suggest, Mr. Chairman, as pertinent (it goes beyond your question, but is relevant in connection with it), as to whether such importation is, according to the register's information of foreign legislation, customary abroad—such privilege of importation of an unauthorized foreign edition of a book printed in the foreign country under domestic law there?

Mr. Currier. My purpose in seeking this information is to establish the fact, if it be a fact, where you provide that the importation must be an authorized edition, whether that is a change in law or not, a change in practice, whether it is an additional restriction. That is what I was trying to get at. I have asked a number of times whether subdivision E, at the top of page 16, "To any book published abroad with the authorization of the author or copyright proprietor," etc., changes existing law and is an additional restriction upon importation; that is all.

Mr. Solberg. You see, the question is difficult of answering categorically, Mr. Chairman, because it is a question of the interpretation of a complex statute.

Senator Smoot. From the present interpretation of the law there is not any doubt in the world, then, but what this is a restriction?

Mr. Solberg. I should say that this act attempts to make clear that all fraudulent copies are barred.

Senator Smoot. That is a restriction, then?

Mr. Solberg. As a protection of the copyright.

(The following communication from the register of copyrights is printed in connection with his above remarks by direction of the chairman:)

The Chairman. It seems that a Mr. Davis, who represents some manufacturers of musical devices, does not understand that he is to have any part of the hour assigned to the gentlemen mentioned yesterday. Is Mr. Davis here?

Mr. Putnam. I think Mr. Davis has not yet come in.

With your permission, Mr. Chairman, I will state as to the letter of Mr. Wilcox, to which I referred yesterday in connection with the suggestion from Mr. Malcomson as to the need of including lithographs in the specification of subject-matter, that the passage which I should have read if I had had the letter here (it was with the stenographer) was this:

The copyright office has received a communication from Mr. Fritz von Briesen, requesting that in section 5, after line 7, a further subdivision, "Miscellaneous," be inserted, and that the following be added:

I suggest this, Mr. Chairman, as appropriate to be inserted in connection with the discussion of the fees yesterday by Mr. Remicher. It bears on that point.

The Chairman. That will go in the record.

Mr. Putnam. I handed in, I believe, yesterday, a statement in writing from Mr. A. W. Elson, of Boston, making certain specific recommendations for changes. He telegraphs me, "Written presentation sent you fully covers my view."

That is in answer to an inquiry as to whether he wished to have a hearing before the committee.

I have received a communication from the International Brotherhood of Bookbinders, as follows:

The office has received, since the bill was introduced, from the Music Publishers' Association, certain proposed amendments, additional provisions in connection with the protection of the copyright on musical compositions. These, I should advise the chairman, have not been communicated to the gentlemen who are to speak in opposition to any of those provisions. They have not had them, therefore, before them in preparing their case this morning at all; and while I have manifolded copies here which are at their disposal, it is to be understood that these were not communicated to them. On the other hand, Mr. Serven, who in behalf of the music publishers handed these to me, states (if I am not correct, Mr. Serven, you will correct me) that these contain additional specifications but in the same general direction. That is all.

Mr. A. R. Serven. That is correct, Mr. Librarian, and simply to conform subsection G of section 1 to comply with the recent decision of the United States circuit court of appeals in the White-Smith v. Apollo Company case. The same idea is represented simply. The case was decided, of course, since the bill was printed.

The Chairman. Mr. Putnam, just call our attention to the proposed change.

Mr. Putnam. This is contained in a written communication, and it will really take less time to read it from the communication.

The Chairman. Yes.

Mr. Putnam. (Reading:)

Omitting the explanations, the next amendment will be as follows:

The Chairman. I suppose the other amendments are simply to follow if the first amendment is approved?

Mr. Putnam. If the first amendment is approved; that is my understanding.

Mr. Serven. Mr. Chairman, that is true with the exception of one amendment. The Musical Publishers' Association suggests that the same right of appeal and review in interlocutory judgments and orders should be provided for in the new bill as is provided for in the existing law. That is the only thing that is different.

Mr. Horace Pettit. Mr. Chairman, may I ask Mr. Serven whether he will add to his amended section 3 the clause which I suggested in my amendment to the original section 3? It would accomplish the same purpose as I had intended. My suggestion of amendment would also apply to your amended section 3, which adds:

Mr. Serven, Yes, Mr. Chairman; I think that is only fair to the interests represented.

Mr. Pettit. You accept that as an addition to your amendment?

Mr. Serven. We are very glad to, indeed. We think that is perfectly fair.

Mr. Currier. A suggestion was made here the other day, the first day of the hearings, to strike out section 3, I think.

M. Pettit. Well, either that or that my amendment be added to it.

Mr. Currier. Yes. Who was the gentleman who replied to you.

Mr. Pettit. Mr. Fuller, of New York.

Mr. Currier. I understood Mr. Fuller to say that the question of whether subsisting copyrights covered these mechanical devices was now in the court, and they thought the court might hold that such devices were now covered. If such should be the decision of the court, would it not prohibit the use of graphophone cylinders and records already made and in use, if they were records of music covered by a subsisting copyright, under that section 3?

Mr. Pettit. If the decision of the court were such as to include talking-machine records or other sound records within the subsisting law, of course it would prohibit that.

Mr. Currier. Does any gentleman here think we ought to legislate along that line?

Mr. Pettit. Not that I know of. I do not understand that they think so, unless Mr. Fuller was misunderstood.

Mr. Currier. That would prevent any boy or girl in the country who has bought records and who is using them to-day from using them. Immediately, I suppose, a warning circular would go out that they must not use those records and cylinders that they had bought in good faith. It does not seem to me that we could pass any such legislation as that.

A Gentleman. Mr. Chairman, that is exactly the position of a great many of the interests involved and exactly the position on which we wish to be heard here to-day.

Mr. Currier. I do not think you need spend much time in talking about subsisting copyrights.

Mr. Burkan. The intent of this act is to make it apply to compositions copyrighted after this act goes into effect.

Mr. Currier. I understand that another section provides that; but it must be in conflict with this section if the courts should hold as Mr. Fuller thinks they may.

Mr. Burkan. But the amendment to section 3 should be that the devices and contrivances mentioned in subdivision (g) shall apply only to compositions copyrighted after this act shall have gone into effect, and say nothing about subsisting copyright.

Mr. Chaney. It can be readily modified to suit that. There is not any question that we do not want to make it retroactive.

The Chairman. Mr. Putnam, is Mr. Davis here now?

Mr. Putnam. Mr. Davis is here. Mr. Davis, it is necessary to know how the hour assigned to particular opponents of the music provision, or a group of them, is to be apportioned, and whether the statement that you are to submit is part of that or not. They understand that it is distinct from the group of statements by them, and they also state that they understood that you understood that, and that your statement would be brief, something like fifteen minutes. I ask in behalf of the Chairman as to this understanding. Whom do you represent?

Mr. Davis. Inventors as a class of their own, and distinct from manufacturers.

Mr. Putnam. No particular establishment?

Mr. Davis. No, sir.

Mr. Putnam. And no particular association?

Mr. Davis. No, sir.

The Chairman. How much time do you wish, Mr. Davis?

Mr. Davis. About 20 minutes.

The Chairman. You may proceed, Mr. Davis.

STATEMENT OF G. HOWLETT DAVIS, ESQ.

The Chairman. Will you not state your name and who you represent?

Mr. Davis. My name is G. Howlett Davis. I have been an inventor during all of my majority and represent inventors as a class. I hope to show how the passage of this act will, first, discourage invention; second, restrict patent grants already held by inventors; third, provide authority to confiscate an inventor's physical property; fourth, to abrogate the inventor's constitutional rights, and, fifth, to create a monopoly which would be practically controlled by a few to the detriment of inventors and the public.

Of course, there are a good many subjects to take up here in the limited time allowed me, and I am willing to take them up in any order you may designate.

The Chairman. I think it only fair that in your case as well as that of the other gentlemen the time devoted to questions should not be considered as part of your time, and taken out of your time; but I would like to ask one or two questions before you begin. Do you understand that this bill proposes to interfere with existing patent rights?

Mr. Davis. Yes, sir.

The Chairman. Vested rights?

Mr. Davis. Yes, sir. I shall take that up first, if you please.

Senator Smoot. You mean, then, that section 3 is the section that interferes with them?

(Mr. Davis looks for the bill.)

Senator Smoot. If you have not it there, do not bother about looking for it now. Go right on.

Mr. Davis. I had a marked copy here.

Senator Smoot. We will listen to you when you come to that section, anyhow.

The Chairman. You may proceed, Mr. Davis, and we will not interrupt you during your twenty minutes.

Mr. Davis. Thank you, sir.

I would like to first explain that I am here without counsel and without any previous notice from the Copyright Office, and without invitation from any source whatever. I discovered the existence of the proposed bill by mere accident on Saturday last. I was then notified that a firm which operates under my patents would have to go out of business if this law passed, and would necessarily have to cancel its licenses with me. That concern is the Perforated Music Roll Company, with offices at 25 West Twenty-third street, New York City. I have also just to-day received similar intimation from another concern manufacturing under my patents in Philadelphia, the Electrelle Company, just organized for a million dollars for the manufacture under my patents for reproducing music mechanically.

I have been inventing in numerous classes during the last twenty years, including printing presses, typesetting machines, typewriting machines, clocks, stencil duplicating apparatus, etc., but about ten years ago I took up the class of self-playing musical instruments. I recognized that there was a peculiar relation of this art to copyrighted musical compositions, and I saw that in some way whatever devices I might invent for the reproduction of music mechanically might interfere with the composer's rights, because music is a necessary component part of the class of self-playing musical instruments, and you all know that this industry has become one of the greatest of the young industries of the country. You can take up any magazine and you will see many pages filled with descriptions of self-playing musical devices, including phonographs, graphophones, apollos, angeluses, cecilians, pianophones, and a hundred other devices for reproducing music automatically. As far as I am able to ascertain none of these concerns have had notice of this bill, and the two concerns who are operating under my patents not only have had no notice, but have notified me, as before stated, that in case of the passage of the bill they will have to annul their contracts with me.

From dire necessity I was compelled to work for two years with the Æolian Company, a concern which attempted to take from me without due consideration inventions which I believe have since been recognized as superior to their instrument, the pianola. During the St. Louis exposition the Government officials sought for a self-playing device which would represent the highest advancement of the art. Among others they considered the pianola, manufactured by the Æolian Company, and they also went further and considered the inventions of poor inventors who had no backing; and finally they selected my device as the sole exhibit. It was the only self-playing musical instrument which was exhibited in the Government building during the St. Louis exposition.

After I left the Æolian Company, declining to accept the compensation which they offered me, they have persecuted me in the courts for years. Moreover, as I can prove to you if you will only give me time to produce the documents from my attorneys (I waited for them until the last minute this morning), this concern, failing to secure a monopoly or strangle my invention through the courts, and recognizing, as a result of the Government and other indorsements of it, that it would in time be universally recognized as a superior instrument, has connived with music publishers and secured from nearly every member of the Music Publishers' Association a contract which sets forth that in case the music rolls or records are decided by the courts to come within the copyright laws, they will take over from them the exclusive right of reproducing their music for a compensation. These contracts I have seen with my own eyes. I can swear that they exist, but unfortunately I can not produce them this morning. But I will agree to produce at least two of them if you will give me a week's time to do it.

Mr. Currier. You will have the necessary time to put anything of that kind in the record.

Mr. Davis. I thank you. Now, the Æolian Company, being back of the independent members of the Music Publishers' Association, have influenced in turn the music publishers as an association to insert in this bill clauses which will cover mechanical methods of reproducing music; and in proof of this I will say that as a result of Mr. Solberg's kindness yesterday afternoon in allowing me to search the records of the star-chamber proceedings presided over by the Librarian of Congress, that the first introduction of those clauses was made by Mr. Bacon for the Music Publishers' Association in the form of an amendment which now appears in all of its substantial terms as subdivision (g) page 2, of the bill. Now, the independent music publishers in turn control the great majority of composers, so that there is thus formed a complete monopolistic octopus, in which the Æolian Company forms the head and brains, the Music Publishers' Association the body, the independent publishers the writhing arms, and the composers the suckers and baiters. [Applause.]

The Æolian Company is a ten-million-dollar concern whose monopolistic game has already been uncovered in several courts, as I will show by proofs, and the music publishers are here to pull its chestnuts out of the fire. [Applause.]

Now, if the inventors of this country knew what was in this bill there would be enough here to fill up every room in this great building, but they do not know it. It will strike them like a thunderbolt out of a clear sky when they learn that there are clauses in this bill which not only seem to lessen or destroy the scope and commercial value of our existing patent and confiscate our physical property, etc., but also imprison us in case we infringe the proposed copyright act.

Now I will read you from——

Mr. Chaney. What is your first subheading there that you are going to talk from?

Mr. Davis. That it will discourage invention, but I would like to take up this bill first; I would like to take it a little out of set up in my preamble.

Mr. Currier. Subdivision (g) on page 2?

Mr. Davis. Subdivision (b) on page 1.

Mr. Chaney. All right; "To sell, distribute, exhibit, or let for hire," etc.?

Mr. Davis. Yes, sir.

Mr. Currier. I do not see how that touches your industry.

Mr. Davis. No, sir; I had my marked copy here——

Mr. Currier. I should say "(g)" was the first one that would affect you.

Mr. Davis. Yes, sir "(g);" you are right, Mr. Currier.

Mr. Chaney. That is, "To make, sell, distribute, or let for hire any device, contrivance," etc.?

Mr. Davis. "To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work."

Now, in this art of self-playing musical instruments alone I have been granted some twenty-seven patents by this country, and have also been granted patents all over the world. My patents read very similar to this—that I shall have the exclusive right to make, use, and sell the mechanical contrivance covered by the claims of those patents, and those claims embody, in connection with the mechanism, a perforated roll, which is a controller for the instrument, and is an essential part of it, and in the case of phonographs or graphophones they include the engraved record.

Notwithstanding that I have gone ahead in good faith under the reading of the Constitution and the laws as construed by the courts right up to date, that composers shall be limited to their "writings," intimating thereby that we inventors should have the right to any methods that we might discover for mechanically reproducing music—notwithstanding that I have expended years of effort and all my money, time, and labor to devise these machines, and have built models and exhibited them, and companies have been formed around them—and notwithstanding that my patents give me the exclusive right to make, use, and sell these machines, this proposed act comes out and says that "any device especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any published and copyrighted work after this act shall have gone into effect," etc., shall be illegal, and subjects me to all those hardships enumerated in my preamble, and transfers to the copyrighter in almost the exact words of my patent those rights given me by the Commissioner of Patents under the authority of the Constitution.

I am not a lawyer, and never made a public speech before in my life, and can only speak to you out of the fullness of my heart. I have not even been able to get my counsel here——

Mr. Chaney. I do not think you need any. [Laughter.]

Mr. Davis. After destroying or limiting the patent rights already vested in me as explained, and transferring them in whole or part to the copyrighter, as contemplated in subsection (g), page 2, in the bill, I am, by another part of the bill, liable to imprisonment if I infringe a copyrighted composition, and this I will do of necessity if I proceed under the authority of my existing patents giving me the exclusive right to make, use, and sell my mechanical device for reproducing music, whether copyrighted or not, thus through two conflicting grants, one to the composer and the other to me, I may innocently——

Mr. Currier. Not if you do it innocently. If you read it carefully you will find that that is the case.

Mr. Davis. There is a paragraph further over, section 25, page 18, which provides that anyone who shall knowingly and willfully infringe the proposed copyright "shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year." Now, if I proceed "willfully" to exercise my full rights as vested in me by my existing patents in defiance of the conflicting and unconstitutional copyright grant proposed, then the copyrighter can put me in jail for a year and during my incarceration and during the entire life of my patents make, use, and sell my machines under the provisions of subsection (g). It is no misdemeanor for one inventor to infringe the patents of another inventor, no matter how frequent and willful such infringements may be; then why imprison an inventor for infringing a usurping copyrighter. Supposing such infringements are innocently made, then wealthy and unscrupulous corporations, such as the Æolian Company, through their unscrupulous lawyers, will succeed in jailing many poor and innocent inventors. It is hard enough now for most inventors to keep out of the poorhouse and the courts; don't add to their present hardships.

Senator Smoot. Mr. Davis, of course you mean that that would happen if you published something after the passage of this act that was copyrighted? This act plainly says, in section G: "Any work published and copyrighted after this act shall have gone into effect." It does not affect anything at all that you have done before?

Mr. Davis. Yes; but it applies to machines that I have already invented and which I may use after this act, according to my patent, to mechanically reproduce any music of the past, present, or future.

Mr. Webb. It does not apply to pieces that you play on those machines now, though, even if they are now copyrighted, does it? It only applies to pieces copyrighted after this act goes into effect.

Mr. Davis. My machines, those that I have been inventing and patenting for years, are specially adapted to reproduce, or may be specially adapted and arranged to reproduce any particular piece, whether copyrighted to-day or hereafter. Under the Constitution, as I understand it, I have the right to use anything that is not a writing, a readable writing; and I have gone ahead under the Constitution with the full reward therein provided as an incentive for my work. The bill covers not only pieces or controller records, but also the machines which they actuate.

Mr. Webb. You do not understand, though, Mr. Davis, that this act will destroy any of your vested rights at present, do you?

Mr. Davis. I do, sir; as I have explained, though perhaps not clearly.

Mr. Webb. When it says that it shall only apply to works published and copyrighted in the future? It only applies to works copyrighted and published after this act goes into effect, and I do not see how it can affect any vested right which you have on account of your past investments.

Mr. Davis. But the idea of inventions is to be able to produce a mechanism which can be specially adapted to any music, whether of to-day or to-morrow. My patent grant does not except new copyrighted pieces.

Mr. Webb. I understand that; but there are two propositions involved here. The first is, you say it will destroy what you have already invented. The next is, you say it will destroy you because of your inability to get hold of these pieces that will be published and copyrighted in the future. Is that your point, now? Is that your argument?

Mr. Davis. I say that this practically depreciates or destroys the marketable value of my inventions or machines, which are capable of being used for mechanically reproducing either old or new music, as well as destroying in part or whole my existing patent rights.

Mr. Webb. Because it will not let you reproduce works published and copyrighted in the future? Is that the reason, now, why you say it will destroy your invention?

Mr. Davis. Yes, sir; coupling this admission with my previous explanations.

Mr. Webb. I wanted to get your meaning.

Senator Smoot. Or, in other words, if Mr. Sousa should have a very popular air or piece produced in the future, you think that you ought, as you have in the past, to simply be permitted to reproduce that by your machine?

Mr. Davis. Yes, sir; either I or any other patentee.

Senator Smoot. Without any consideration whatever?

Mr. Davis. Yes, sir, I do; because outside of a possible minor and remote ethical or equity right, he possesses not a vestige of a statutory or legal right to stop me.

Senator Smoot. And whatever his brain, and his talent, and his gift has brought forward, you are entitled to use?

Mr. Davis. And I want to go ahead and explain, if you will allow me, why I say that.

Before I took up this art of self-playing musical instruments, as I said, I saw that there was a possible limitation, and that in order to make inventions commercially successful I would have to use musical compositions. If I used old music, they would be useless. I would have to use current music; and I read the Constitution, and the very first article of the Constitution that I came to, section 8, reads:

Mr. Webb. Mr. Sousa insists on that, too. [Laughter.]

Senator Smoot. Yes; I was going to say, that is just exactly what Professor Sousa insists upon.

Mr. Chaney. That is where the other fellows claim they come in.

Mr. Davis. There is where Mr. Sousa and the trust, on one side, and I are going to lock horns—right here with the Constitution as our battle ground.

Mr. McGavin. Would you like to amend that?

Mr. Davis. No, sir; I want the Constitution to stand as it is. It is not the construction Mr. Sousa puts on this word "writing" therein; it is not the construction that I put on it; but I followed this matter down, as an inventor. Every decision that has ever been made in this country and England, as I read it, has limited that word "writing" to mean some visible and readable writing; not the mere making of a wave in the air. If I invent improvements in wireless telegraphy, the Government does not grant me anything but the mechanical means of doing that, or the method. It does not give me exclusive right to use God's free air and vibrate it.

For instance, we will imagine Mr. Sousa facing an audience of ten thousand persons and behind him one hundred skilled musicians who, upon the movement of Mr. Sousa's baton perform in melodious concord upon one hundred different musical instruments. We will, for illustration, as audiences do without suggestion, forget the inventors who evolved the orchestral musical instruments and without which Sousa's band would be a nonentity, and take under consideration only one of the inventors who have formed part of the audience which has been enraptured. After the performance the thought occurs to many that it would be a blessing to mankind if such music as they had heard could be reproduced at will for their own pleasure and for that of those who are in remote sections of the world and for those who are too poor to pay for even the lowest-priced seat.

One of the inventors present determines that he can produce the great desideration to practice, and from that moment commences to evolve in his mind thousands of different apparatus which appear to him feasible for the full achievement thereof. After years of experimenting he is ready to test a machine which, in some of its structural features, resemble that of the human organism. The inventor's machine is set up within the range of the air waves, set in vibration by the instruments of Sousa's band, and which air waves are escaping into space to be lost to man forever. The ear-like diaphragm of the instrument is impinged by and set in motion, and through connecting means resembling the human oricular bones and nerves there is engraved upon a sensitive surface not far unlike the material matter of the human brain a record of every minute vibration of all the one hundred instruments.

After the performance no one in the audience, musician though he be, can simultaneously resound any two instruments, and the majority of the audience would be hissed if they attempted to resound any one of the instruments. Not so with the mechanical listener, for it is capable of resounding simultaneous and accurately all of the 100 instruments, and upon the expenditure of 50 cents for a copy of the machine-made record the poor man and his family in every part of the world can, by a slight movement of his hand, start up his $7 graphophone and thus be amused and enraptured, all owing to the inventor having caught, preserved, and provided means for mechanically reproducing the air waves which would have otherwise have escaped beyond Sousa's power to recall. Nevertheless, the bill provides that the lost chords must be all returned to Sousa by the inventor in the form of a royalty.

There is no novelty in music, nor vibrating the air as a means of transmitting musical tones, for—

Now, defining an ethical or equity right which the inventor might claim with equal justice against Sousa and other composers, the common people all over the world, who listen to the mechanically reproduced lost chords of Sousa's band, do frequently order and pay for the sheet music score for the piano, banjo, violin, and other instruments which the purchaser plays or thinks he can play, and upon all these orders induced by the inventor's machine he is entitled to a commission, which in actual fact and adjustment would offset the alleged right of the royalty claimed in this bill. There are many other corelated equity rights which us inventors might set up but which it would be impracticable to secure to us.

The Chairman. Mr. Davis, if I may interrupt you, do you claim that you have the right to take one of Mr. Sousa's compositions and use it in connection with your mechanical device without compensation to him?

Mr. Davis. Under the Constitution and all the laws of the land, I say yes, decidedly; but I want to explain my contention and the position of inventors in a little different line of argument.

The composer of music never conceives nor produces, and never did in respect of the actual composition, conceive or produce, any means for conveying to the ear the musical composition. On the contrary, all such means from the beginning to the present time are the direct result, not of authorship, not of composition, but of invention. The composer never conceives the idea of a mechanical means for playing a piece of music. That achievement is the result of the effort of the inventor. The Constitution makes no distinction in respect of right of protection as between an author and an inventor, but both are coequal under the Constitution, and the line or field within which each may be protected is clearly marked out in the Constitution, the result of authorship being distinctly distinguished from the result of invention. The author is restricted by the Constitution to protection for "writings" and the inventor to "discoveries."

The courts have determined what may properly come within the constitutional provision of discoveries, and it has been determined a number of times that under the constitutional provision a writing does not include a mechanical contrivance. If the law under discussion be enacted it will operate to take away from the inventor the rights which are vouchsafed to him by the Constitution and by the laws of Congress enacted in pursuance thereof, and deliver his rights over to the author or composer of a literary production or a musical composition. Such a procedure would clearly annihilate the inventor, offering him up as a sacrifice to the author or composer. The Constitution intended no such thing, and in matter of every right, irrespective of the limitations provided by the Constitution, Congress ought not to pass a law which turns the inventor over to the mercy of the author or composer.

It is needless to mention to this committee the unprecedented state of prosperity and material progress attained by this country as the direct result of invention. In all arts the work of the inventor will be found at the foundation of the progress and prosperity of the country. The author or composer has to do more with the pleasure or esthetics of life, the inventor with the real necessities, and in the art allied to the fine arts has had to do with placing throughout the United States in the possession of the common people everywhere the means by which the composer as composer can never give them. It is not for a moment intended to detract from the value of the work of the author or composer, for his work is valuable, but its value has certain limitations, and these limitations are defined in the Constitution and acts of Congress heretofore passed in pursuance thereof.

The farmer or the workingman in all the small towns of this country, who are possessed of an electrical piano player or an automatic piano player, or a graphophone or a phonograph, which serves to relax the tension of their daily labor and fill their souls with music, is not because of the composer, for he rarely reached them, but it is the direct result of the inventor of the mechanical contrivances with which music may be conveyed. Yet this law attempts to reach out and take away from the inventor the product of his brain and to deliver it over to the composer. So far as the mass of the people of this country is concerned, the work of the composer is infinitesimal as compared with the work of the inventor, and the inventor is willing that the composer shall have his just rights under the Constitution; that is to say, shall have full protection in his writings, but does protest that a law should not be passed which will enable the composer to overstep the field of protection to which he is entitled under the Constitution and usurp that which the Constitution has particularly provided shall be with the inventor.

Mr. Currier. Would you object to paying a reasonable royalty to a musical author or the proprietor of the copyright if all companies would get the right to use that piece of copyrighted music upon the same terms?

Mr. Davis. Most assuredly not—no, sir; I would not, provided——

Mr. Currier. You would not object to paying a reasonable royalty if that right was given to all upon the same terms?

Mr. Davis. Provisionally I would not object, but your proposition is one which mainly interests the manufacturers of my machine, whom I do not represent. As an inventor I approve of the bill as a whole and only seek to strike out therefrom those comparatively few words covering mechanical devices, the insertion of which vitally affects our present vested rights.

Mr. Currier. If it could be worked out along the lines suggested, you would not object to that?

Mr. Davis. No, sir; no, sir. But, in my opinion, you will never be able to draw a better or more workable line of demarkation between the inventor and composer than that now set up by the Constitution, particularly if you follow the lines of the present bill as regards mechanical devices, in respect to which collusive elements have been at work behind the drafting of the bill. I will give you my word of honor to produce evidence of it.

The Chairman. Of what character?

Mr. Davis. That Mr. Sousa, or rather the majority of composers, have been sold out by their publishers to this monopolistic octopus, the Æolian Co. and lesser satellites, and that contracts exist which anticipate and control benefits designed primarily for the composers, with whom us inventors have no direct fight.

Mr. Chaney. The idea is now, you know, to try to protect these people who produce the music to the public, and all that. They have rights which we are bound to respect, as well as the inventor.

Mr. Davis. Yes, sir; and I would help you in all reasonable and lawful efforts.

Mr. Chaney. And the idea now is to try to evolve something that will treat everybody fairly.

Mr. Davis. Yes, sir. But if the Constitution has led inventors on, given an incentive to them to go ahead and work and devote their funds and lives to developing these industries, which are second to none in the world as young industries, it would be wrong to come in at this stage and either curtail the incentive or subtract from rights already vested in them.

Mr. Currier. Yes; but that very clause gives the same incentive and protection to the musical author, does it not, as to the inventor? He is protected on his writings as you are on your discovery?

Mr. Davis. Yes, sir; there is a line of demarcation set up in the Constitution. I went in to try to get the line of demarcation between an inventor and a composer. I went in, as I thought, intelligently. I have studied the laws right down to the last decision of the 25th ultimo, that of the court of appeal for the second circuit, and all confirm the contention which I have made here that the only incentive held up to the composer is a specific protection for his "writings," not on machines.

The Chairman. Would you object to Mr. Sousa taking your invention and combining it with his composition and putting it upon the market?

Mr. Davis. If there was some fair, equitable way of doing that, no sir, I would not. But unfortunately, we inventors and composers are the ones that are generally imposed on, and naturally I am fearful that any change in the laws as they now exist will prove disadvantageous to both our interests.

Mr. McGavin. If I understand your position correctly, you feel that Mr. Sousa has no more right to require any further compensation from a phonograph company, if it be a phonograph company, for the use of any particular piece of music which has been copyrighted, and of which he has received the benefit, than an inventor of a drum would have a right, after he has been protected by a patent right, to require Mr. Sousa to pay further for the use of that right. That is your position, is it not?

Mr. Davis. Well, you can look at that in two different lights. From the legal standpoint he has no right whatever. From an ethical standpoint there seems to be a sort of remote ethical right. I am not a lawyer, and not used to legal verbiage, and am not sure that I can clearly differentiate between legal and ethical rights.

Mr. Chaney. Well, this is the "Constitution between friends," you know.

Mr. Davis. As inventors we proceeded under the laws of the land as they exist.

Mr. McGavin. That is just what I say.

Mr. Davis. Mr. Sousa, through his publishers, has tried in the various courts to have the word "writing" broadened, but he has failed to do so, and he now comes to you to do it. In no copyright act or law has there ever been introduced before—you will not find it anywhere—one word or clause or phrase, before this one, that covers mechanical devices.

Mr. Chaney. Under that word "writing" you want to exclude such people as Mr. Sousa entirely from its operation in respect to self-playing musical instruments?

Mr. Davis. If you are going to work under the Constitution; yes.

Mr. Chaney. Then, is it not high time that we were giving it a little wider construction than that?

Mr. Davis. I think it is rather late in the day, after we inventors have spent our lives at this art and created a new industry. I think you ought to have done it soon after 1789, if at all, and if the law had been passed then there is no inventor in the land that would have gone ahead developing this particular art.

Mr. Campbell. Why not, Mr. Davis?

Mr. Davis. Because we would have been dominated by composers, as I have explained at great length.

Mr. Campbell. Mr. Sousa can not use your machine nor your process.

Mr. Davis. But we would have gone into other fields or arts not dominated by composers. We would have left this art undeveloped. He may make use of machines if he can construct them with "writings" or musical tones and infringe only a remote correlative ethical right of the inventors.

Mr. Campbell. Well, now if there is a mercantile demand, a commercial demand, for your method of reproducing music, why would you not have gone into it for exactly the same reason? If Mr. Sousa's music, played upon your machine, meets a public demand, he must use your instrument just exactly the same as you use his music.

Mr. Currier. But suppose there are half a dozen of these concerns and one of them, by an arrangement with the musical publishers of the country, gets control of all the copyrights?

Mr. Davis. That is what they have done, sir.

Mr. Currier. Then would the competing concerns be able to use their instruments at all?

Mr. Davis. They might use, but could not sell, and over their pecuniary misery would weep alone. [Applause.]

Mr. Campbell. The proposition here is that this bill, as I understand it, does not affect what has already been done. It applies to the future. You all stand upon the same level, and that relates right back to the contractual rights of the parties. If Mr. Sousa desires to make a contract with some machine producing music independent from yours, why should his right to do so be restricted by us under the law? That is the question I would like to have you answer.

Mr. Davis. Well, sir, I am not a lawyer——

Mr. Campbell. No; but that is a practical question.

Mr. Davis. I have been trying to get counsel here. He would probably have advised me in my opening speech for the opposition to imitate Mr. Sousa in making a bid for your sympathy and avoid a discussion of fine legal points, but I will give you my practical ideas of that. I am an inventor who has studied the law, but without being a lawyer I am ready to say that as the law now stands——

Mr. Campbell. I am speaking of the future. This bill affects the future.

Mr. Davis. Well, "this bill affects the future," but has it the right to affect the future? Has it the right to change a situation which has existed since 1789? The bill proposes a change, not merely amend the Constitution, therefore I challenge the authority of Congress to enact it. At present the composer has no contractual right as regards a machine, and Congress can not give it to him.

Mr. Campbell. That is the very proposition we are trying to get at.

The Chairman. We can not very well change the Constitution.

Mr. Chaney. It is not a question of changing the Constitution; it is a question of giving the Constitution its fullest scope.

Mr. Davis. Well, a gentleman speaking here yesterday, Mr. Stephen H. Olin, counsel for the American Publishers' Copyright League, although favoring this bill as a whole, gave you a warning that if this bill attempted to broaden the word "writing" so as to include a machine, then the bill in this respect might be held by the Supreme Court to be unconstitutional, and I have already traced the introduction of the terms "machine" or "device" in the bill direct to the monopolistic octopus. Mr. Olin made that statement here yesterday voluntarily.

Mr. Chaney. I know that.

Mr. Davis. Proceeding further, Mr. Olin said he was not interested in the introduction of any clause restricting the mechanical reproduction of music; that he was satisfied to leave that to the courts, and let the courts give the construction of that word "writing" in the Constitution. They have been at work at it for many years, with the result that a machine remains a machine and not a "writing."

Mr. Webb. Mr. Davis, your idea is that if the composer or publisher copyrights a piece of music and sells it and in the sale gets whatever price his copyright or royalty gives him, and you buy it, or anybody else buys it, that that purchaser has a right to play it or sing it in public or private, or anywhere else he pleases?

Mr. Davis. No, sir; I do not say that, exactly, sir——

Mr. Webb. What is your position, then, if that is not your position?

Mr. Davis. Your proposition brings up the question of public performance. I say that the composer's rights are limited under existing laws to all benefits which he may receive from his visible, readable "writings" expressing his original musical conceptions, and that he can make copies of it in any manner he sees fit; but he has not the right to usurp the rights of an inventor to reproduce that music through self-acting mechanical means in public or private. The inventor has a peculiar field here. The Constitution, as I would translate it, in layman's language, says: "Now, Mr. Inventor, if you can come in and invent a machine in which the melodies that would otherwise be lost can be forever preserved and reproduced to the public for the public benefit, you shall be protected." This includes public performances. We do this in a way that does not decrease Mr. Sousa's income, but increases it, as I have explained.

Mr. Webb. If a man goes to a store and buys a piece of copyrighted music he expects to have the right to sing it and play it anywhere he pleases; otherwise, what does he want to buy it for?

Mr. Davis. That is the human agency. Mr. Sousa's compensation may or may not cover all human agencies for reproducing that music, including public performances, and concerning which the inventor is not specially interested. The inventor should have the right to all mechanical agencies, where the human agency does not enter into it in any way whatever, including public performance.

Mr. Webb. Well, they say you can use your mechanical devices wherever you please, just so you do not use their music.

Mr. Davis. Well, Mr. Sousa is not construing the laws. I am telling you my idea of the laws, as I understood them when I entered into this art ten years ago, and as the courts have sustained them right up to a few days ago.

Senator Smoot. Mr. Davis, as I understand you, you would not object at all to paying a royalty for any music that you may use upon any instrument that you may have invented or produced, providing that that same royalty is paid by all other concerns or individuals, and that all other concerns and individuals may have the same right to use it as any particular one that the producer of the music may even try to designate himself?

Mr. Davis. Individually—and I believe I represent the class of inventors affected by the proposed act—and without retreating from the stand I have taken regarding our present rights, I would not object, because I recognize that remote ethical right which you are casting about to secure and deliver over to the composer together with the many other new gifts in the bill. If you can protect it in some such way as will meet my many objections, we inventors will be satisfied, but I am constrained to say that I think your efforts will be futile.

The Chairman. I think that is all, Mr. Davis. You can submit in writing any further statement that you desire to make.

Mr. Davis. Thank you; and may I submit later the evidences and proofs to which I have referred?

The Chairman. You may do that.

Mr. Davis. Senators and Representatives in joint committee assembled, I thank you for the close attention which you have given to my remarks and for the liberal extension of time within which to make them; and on behalf of the inventors of this country I assure you of our full confidence and belief that you will finally modify the proposed act in a way that will protect our properties and persons against the monopolistic giants who do now or may hereafter seek to destroy us.

Mr. Sousa. Mr. Chairman, the gentleman referred to "visible music." Now, as I think you can see, that [referring to sheet music] is music, one notation. This [indicating perforated roll] is a perforated roll. That is visible; that is music in another notation. That is what they are taking [indicating perforated roll]; that [indicating sheet music] is what we are paid for.

Mr. Herbert. Mr. Chairman, one word. Mr. Davis has made a statement which is absolutely untrue. He said, speaking about the Æolian Company and this contract which they have signed, or made the publishers sign with them, that "They control the publishers and the publishers control the composers." That is absolutely untrue in my case. Nobody controls my works, the works that I am going to write. I am going to bring out a work in September, of which I have only written a few notes so far. I do not even know what I am going to write, and nobody has a contract with me to-day. I want to state most emphatically that I have not even been approached by any firm for the future.

Mr. Currier. Who is your publisher?

Mr. Herbert. Mr. Whitmark, of New York.

Mr. Currier. Has anybody else published any of your music?

Mr. Herbert. Yes; Schubert & Co., Schirmer & Co., and so on.

Mr. Currier. Do you mean lately?

Mr. Herbert. That was before I went with Whitmark.

Mr. Currier. How long have you been with him?

Mr. Herbert. About six or seven years.

Mr. Currier. And nobody else has published any of your music in six or seven years?

Mr. Herbert. Not since then; no, sir. Naturally, I have a perfect right to go around to my friends and get the best offer I can, have I not?

Mr. Currier. Surely.

Mr. Herbert. There must be competition. But I want to state most emphatically—and I know that these gentlemen are going to try to make the point that arrangements have already been made—that there have no arrangements been made in my case—absolutely none. I have not even been approached by any one of the companies—not even by the company, for instance, that is in favor of paying the royalty, the Victor Talking Machine Company. They have never spoken a word to me about the future, and I have not made a contract for my next work with Whitmark & Sons yet. I may publish it with somebody else; I do not know. So I am perfectly free to say that his statement in that respect was absolutely untrue.

Mr. Sousa. I would like to say, Mr. Chairman, that I have never been approached by any of the mechanical instrument companies; and the house which I have a contract with, the publishing house, is not a member of the Music Publishers' Association. I have never even been approached by any of them, and I have no contract with anyone.

The Chairman. We will hear you now, Mr. O'Connell.

Mr. Putnam. Mr. Chairman, for the group of interests which are now to be heard I wish to make a statement that they might feel called upon or required to make, but which it is not fair should be taken out of their time. They were not participants in the conferences. How completely they were omitted is apparent only from the list. That list is before you. It will take but a moment to read the titles of these associations: American Authors' Copyright League, National Institute——

Senator Smoot. We know them.

The Chairman. They are already in the record. They have been laid before us.

Mr. Putnam. They were not participants in the conferences. They were not invited to the conferences by the copyright office. There were no notices sent to them from the copyright office that the conferences were being held; that these provisions were being considered at them. The copyright office shows, so far as I am aware, no communication with them on the subject of any of these provisions. We have never, ourselves, in any way notified them that these provisions were being proposed for the bill. I say that as much because it is to their advantage that I should say it as for them to say it, and it is not fair that that statement should have to be made at the expense of their time.

STATEMENT OF JOHN J. O'CONNELL.

Mr. O'Connell. We intended to make that statement ourselves.

The Chairman. Whom do you represent?

Mr. O'Connell. I appear on behalf of ten independent manufacturers of automatic piano players in the city of New York, and the names of these concerns are as follows: Winter & Co., Ludwig & Co., Jacob Doll & Sons, Laffargue & Co., John Ludwig, the Regal Piano and Player Company, Ricca & Son, the Auto-Electric Piano Company, Newby & Evans, and the Estey Piano Company.

I also appear on behalf, by arrangement here, of independent manufacturers of music rolls. I can also say that possibly what I shall have to say to your committee will represent the ideas of the various independent manufacturers of automatic piano players in the United States and the various independent manufacturers of perforated music rolls.

To anybody reading the provisions of this bill it would appear very clearly that one of the great special interests were the manufacturers of perforated music rolls. Proceed a little further and it will be very apparent that the manufacturers of automatic piano-playing instruments, which can not be operated without music rolls, had a very special interest in this bill. It would be the easiest thing in creation to notify the manufacturers of music rolls and the manufacturers of automatic piano players of these conferences. Take up any directory of manufacturers in the United States and you would find them by the dozen.

The Chairman. Let me interrupt you for a moment, Mr. O'Connell, to say that so far as I myself am concerned it does not seem necessary to continue longer upon that line, for the reason that the committees of the Senate and House are now giving you a hearing, and you shall have an ample opportunity to present your side of the case.

Mr. O'Connell. I simply wanted to make it clear to the whole committee, as I explained it to the chairman yesterday, that it was only last Saturday that we knew what the situation was and knew what the provisions of this bill were.

I might say at the outset that the companies which I represent are not members of that class which Mr. Putnam so delicately denominated as pirates. We are here to protect industries in which there are invested millions of dollars. It has also been said by some of these special interests which are appearing in favor of the bill, in elegant language, that we were "butters-in" at the eleventh hour, and that we are here for the purpose of a hold-up. If protecting our business makes us butters-in and hold-up artists, then we come under that definition.

I want to say furthermore, at the outset, that we have no particular controversy or quarrel with those very eminent gentlemen, Mr. Herbert and Mr. Sousa. It is perfectly proper for them to seek to get all they possibly can from the products of their genius, but we are all a great deal too sentimentally inclined toward them and their possessions because of the many hours of delight they have given to every one of us.

Here is our position, and I will try to outline it as briefly as I possibly can: A number of years ago in the city of New York, within the last decade, a number of gentlemen interested in a manufacturing concern, one of the pioneers in the piano-playing industry, had the foresight to realize that the industry was destined to become one in which there were millions of dollars of profit, followed the conclusion that they would like to get for themselves all of the millions in that particular industry. The question was how to achieve and attain that result. Naturally they turned to the patent laws, to get monopolies under patents covering not only the machines themselves, but also the music rolls, without which the machines could not be operated, and machinery for cutting such music rolls.

Applications were made on their behalf for hundreds of patents, both on the machine and on the music rolls, and on machines for cutting the music rolls. Before they had gone very far, however, it developed that the patent laws would not afford them a monopoly of the machines or the music rolls, because of the fact that they could not get and control a basic patent, for the reasons that in the first place the operation by means of wind instruments, vacuums, etc., of an automatic playing device was as old as pipe organs, and furthermore that the perforated music roll or perforated music sheet was also as old as the very ancient hand organ. Therefore they saw that it was utterly impossible for them to obtain the monopoly which they wanted under the patent laws, and naturally the next thing for them to consider was: Can we not attain the required result through the copyright laws?

Eminent counsel were retained, and those eminent counsel, after an examination of the existing copyright laws and decisions, made this discovery: That in what is known as the McTammany case, decided by Judge Colt in the United States circuit court for the district of Massachusetts some twenty years ago, that jurist held that the perforated music sheet used in a hand organ was not an infringement of the copyright music sheet covered by the statute. When they had reached this point it became necessary to develop a new line of action, and this was the new line of action:

Now, there existed at that time an association of music publishers, and that association included and includes practically all of the big publishing houses which turn out the classical as well as the modern and popular compositions of the day. They said to themselves: Let us make contracts with all of these houses whereby we will get from these houses the exclusive right to reproduce the compositions which they handle in music rolls and other mechanical devices. Then we will go ahead and we will institute suits and try to obtain a reversal of the decision of Judge Colt in the McTammany case, and if we fail in that, then, holding exclusive contracts as we do with the vast majority of the publishing houses, we will go before the Congress and get from it what the courts refused us.

Mr. Chairman and gentlemen, I am not speaking in the air about this. I have here with me a copy of two contracts made with one house in Chicago by this monopoly, and I now offer in evidence those two contracts.

Mr. Currier. What is this monopoly? You have not mentioned the name of it.

Mr. O'Connell. The Æolian Company, of New York, which is a Connecticut corporation.

Both of those contracts are dated April 30, 1902. After the making of those contracts, the action known as the White-Smith suit against the Apollo Company was commenced in the circuit court of the United States for the southern district of New York. That case went to a hearing before Judge Hazel. Right at this point I may interpolate that I now ask the chairman and the members of this committee to investigate, if they feel they have the power, into those contracts, to summon witnesses, if necessary, to determine what contracts have been made, with what music-publishing houses, by this particular concern, so that the committees may be able to determine for themselves whether this concern and the publishing houses with which they are affiliated can, in the event that this bill becomes a law, have an absolute monopoly of the vast majority of the publications, in so far as they may be reproduced into perforated music rolls or other mechanical devices for reproducing the sounds.

Mr. Currier. I want to ask you the question that I asked Mr. Davis a moment ago: Would the people whom you represent object to paying a reasonable royalty to the author or proprietor of the musical composition if that right was given to all upon the same terms?

Mr. O'Connell. Primarily, I appear, sir, for the independent manufacturers of automatic piano players. Here, to-day, as I understand, I am expected to speak for the interests of the independent cutters of music rolls as well. Speaking for the clients that I originally and personally represent, I answer that provided you have the power to pass such a law we have no objection to paying a reasonable royalty to the composers, provided we are put on an equal basis with everybody else and provided our business interests are protected. That is our attitude. We do not wish to be unfair to anybody.

The Chairman. Protection in what way? How far do you wish that protection to extend?

Mr. O'Connell. In this way: It is difficult to devise a plan—in answer to the question of Mr. Currier—which will protect us, and for this reason——

Mr. Currier. I realize the difficulties.

Senator Smoot. You have no idea of being protected any more than any other concern?

Mr. O'Connell. No, sir; we want to have only the same rights as anybody else.

You must understand, Mr. Chairman, that the Æolian Company is by far the largest manufacturer of automatic piano players. If they control the output of the device, without which those players can not be operated, it is perfectly clear that it is the easiest thing on earth for them to put one after the other of the independent manufacturers down and out. I have not thought up a plan which could be devised to protect them, because that is a very difficult thing to do, and the time given for preparation has been extremely brief.

In line with what Mr. Herbert said a few moments ago, we are perfectly clear that neither Mr. Herbert nor Mr. Sousa can be controlled by this combination. They are too big. But they are the only composers in the United States to-day of whom that can be said.

Mr. Burkan. How about De Koven, and how about Julian Edwards; and how about——

Mr. O'Connell. That being so, it seems strange to me that those eminently respectable gentlemen, Mr. Herbert and Mr. Sousa, have been put forward here as advocates of this bill, when the very men who will be the greatest gainers by it have sedulously kept themselves in the background, and do not appear to be represented here, even nominally.

What will be the result if these features of the bill are put through? Mr. Herbert and Mr. Sousa will get some benefits from it. Ninety-nine per cent of the composers will get absolutely nothing from it. The Æolian Company and the concerns affiliated with it will have millions of dollars turned into their coffers. And the net result is that the public will pay and the independent manufacturers whom we represent will either go out of business, or will have to transact business in such a way that it will be without any profit to themselves, or entirely on sufferance. That is the broad, general question that is before you, gentlemen, of these committees. We only want a square deal. We want no rights that anybody else does not get.

But we do not want to have others put in a position where they can take away our right to do business on a reasonable basis. That being the broad general proposition, I shall expect during the summer vacation to supply your committees with as much information as I possibly can on these various matters, and I ask the committees to do what they can toward investigating how far I am right in this matter. I can say that those charges have been made in the White-Smith suits in the circuit court and circuit court of appeals, and they have not been answered in anyway by the representatives of the monopoly to which I refer, nor have they been denied.

On the bill itself——

Mr. Chaney. What section?

Mr. O'Connell. I will take it from the beginning, if you please.

The Chairman. Before you proceed with the bill: Have the companies that you represent made any effort to secure contracts with Mr. Sousa and Mr. Herbert and the other composers that have been mentioned?

M. O'Connell. The companies that I represent do not make contracts with composers. The companies that I represent primarily, the 10 manufacturers, do not cut perforated music. They buy it. They buy it either from the Æolian Company, or from one of the many independent manufacturers of such rolls. So that we are not brought into direct contact with Mr. Sousa, Mr. Herbert, or any composers. We want to be in a position where the independents will not be forced out of the field, or where we can be forced to buy this perforated music at an exorbitant figure, or where they can be in the position of refusing to give it to us at any price.

The Chairman. These companies, as I understand, under existing law simply go to the store offering the music for sale, which is music, and then put it upon the rolls. Is that right?

Mr. O'Connell. I do not know what the particular arrangements are that the composers have with the publishers, or the publishers with the music companies.

The Chairman. Under existing law, is it necessary for the manufacturer to do more than I have stated?

Mr. O'Connell. Under the existing law, as it has been decided in the White-Smith suit, the cutter of music rolls can go anywhere and take a piece of music, copyrighted or uncopyrighted, and cut the roll from it. That is my understanding of it, without paying any royalty to anybody.

The Chairman. And the gentlemen and concerns you represent desire the law to remain in that condition?

Mr. O'Connell. I have not said that, sir. What we say is this: We want to be able to go out in the open market and buy our music rolls. We will not be in that position if this bill goes through, because with these contracts that I speak of we can not go into the open market, as there will be no open market whatever. The distribution of these music rolls will be in the hands of one house, and that house can put its own price on them, or refuse to sell them to us at all at any price. In other words, in passing this bill in its present shape, you are fostering too great a centralization of power, or putting an absolute monopoly into the hands of one group of men. That is our objection. If some means can be devised whereby we get in on the same basis, whereby we can buy our records or our perforated music sheets as Mr. Currier said, on the same terms as anybody else, we have no fault to find, then.

The Chairman. How can law prevent Mr. Sousa from making a contract with the Æolian people or any other concern that he may desire to deal with?

Mr. O'Connell. The law can not prevent him from making any contracts he chooses with them, provided he does not contravene the law of the land itself. He can make any contract he chooses for any price he chooses. But there is the unfortunate situation: Mr. Sousa and Mr. Herbert, and gentlemen situated as they are, naturally ought to be in a position, I suppose, where they have liberty of contract; but in passing a law the greatest good to the greatest number must always be considered. If you pass this bill you do some good to these gentlemen, you do a great deal of good to the monopoly, you do absolutely no good to the vast majority of the authors, and you do a great deal of damage to a great many millions of dollars interested and invested in manufacturing industries in this country, even if you leave the purchasing public out of consideration altogether. It is a question of which you will take, unless some means can be devised to eliminate those particular features.

Taking the bill itself, it was stated here by Mr. Putnam the other day that the object of this bill was to give a copyright on music rolls as to musical compositions composed after the passage of this act. That was my understanding of what he said.

Mr. Putnam. Copyrighted afterwards, I think I said.

Mr. O'Connell. Then I assumed, from the remarks made by some members of the committee, that they considered the act to apply only to compositions originally composed after the passage of this act, and originally copyrighted after the passage of this act. I do not believe, therefore, that the members of the committee are aware of the very many peculiar features of the bill in that regard.

Mr. Chaney. The bill is only submitted as a tentative proposition, to get at the right thing. It is not the result of our genius at all. It belongs to some of the rest of you fellows.

Mr. O'Connell. It does not belong, Mr. Chaney, to me or the rest of my fellows; and we are here trying to oppose the genius of the other men, the specially interested ones who did submit it to your committee. [Laughter.]

Mr. Chaney. Well, we fellows are not trying to shut out you fellows.

Mr. O'Connell. I know that you are not, and all we want is a fair, full, and complete hearing.

Taking first, Mr. Chairman and gentlemen of the committees, subdivision F of the first paragraph. There is still a subdivision B in that subdivision F:

Mr. Chaney. On page 2?

Mr. O'Connell. I am reading from the House bill.

Mr. Chaney. We have the Senate bill here. What is the section?

Mr. O'Connell. Section 1, subdivision F.

Senator Smoot. It is on page 2.

Mr. O'Connell. It gives the right—

Then it goes on (subdivision G):

Mr. Webb. Before you leave that, do you not think that section G prohibits the sale of the instrument itself, rather than the reproduction of the music or the work? You are a lawyer.

Mr. O'Connell. It would seem that it prohibits both, sir.

Mr. Burkan. We will submit an amendment to cover that.

Mr. Webb. It seems that that is a prohibition of the sale of any instrument.

Mr. Currier. Clearly so.

Mr. O'Connell. I have not seen the proposed amendment, because it was only handed in this morning after we got here.

Turning to section 6, it says—and this is very important:

Now, if you please, turn to section 18, subdivision B. It gives a copyright for fifty years after the first publication, and you will find at line 13 of the House bill, which I hold, that it gives a copyright for fifty years after the date of the first publication, in "any arrangement or reproduction in some new form of a musical composition." Then, you will find further down, in subsection C of that section 18, where it gives a copyright for the lifetime of the author and for fifty years afterwards in the case of an original musical composition, thus making it clear, from a reading of all those sections together, that first, where there is an original composition, say of Mr. Sousa or Mr. Herbert, which has been already copyrighted under the present act, under the provisions of this new act they have the right to prohibit the cutting of music rolls for the period of fifty years from those original compositions which they have already copyrighted; and, secondly, the most dangerous provision of the bill, that any music-cutting establishment—this monopoly, for instance—can take any old work, that has never been cut to this day into a music roll, which is in the public domain—one of Beethoven's sonatas, or the Star Spangled Banner, if that has not already been done—and they can cut a music roll and can copyright that, and they can get the exclusive right because of such cutting, notwithstanding that everybody is free to perform that particular piece in every other way. This bill gives the right to cut it into a music roll and get a copyright for fifty years after the first publication in the form of a perforated music sheet. That, I submit, Mr. Chairman and gentlemen, is a very iniquitous provision—very iniquitous.

Mr. Chaney. That starts in on page 4 and concludes on page 14?

Mr. O'Connell. Yes.

Mr. Chaney. I think you are right about that.

Mr. O'Connell. Thank you for agreeing with me.

Then, there is another provision of section 19, which was covered yesterday by Mr. Ogilvie, in regard to book publishing, to which I have the same objection, and that is that where the author dies his family can not get the continued copyright for fifty years unless the assignee or licensee shall join in the application for such renewal and extension. Some provision ought to be made there so that in case the licensee or assignee refuses, at the instance of the widow or orphans of the author, to apply for an extension of the contract, the widow and orphans shall have the right to proceed independently of the assignee or licensee. As Mr. Ogilvie very well said, where the publisher has the right to reproduce on the payment of a royalty of 20 per cent he may very well say now, after the author dies, "I will not apply with you for this extension unless you permit me to pay you merely a royalty of 2 per cent."

I simply point that out as one of the injustices of the act, as showing that only special interests apparently seem to have been considered in the framing of the bill.

There is another question there, which will probably be covered by Mr. Walker in what he has to say to the committee afterwards, and that is as to the constitutionality of these provisions as a whole. I will merely point out what the Constitution provides in that respect.

Article 1, section 8, subdivision 8, gives the right to Congress—

It has been held, in the case of the Lithograph Company v. Sarony, 111 U.S., 53, at page 58, that the only thing which appears to infringe upon copyrighted matter would be—

Mr. Sousa pointed out the ordinary system of notation with the various notes, and he also held up to you a music roll with the perforations, slits, dots, and dashes, and he claimed, apparently, that those slits, dots, and dashes are visible and can be read. I doubt very much if Mr. Sousa can tell one note from another there.

Mr. Currier. I could tell the notes on that sheet just as well as I could on the other. [Laughter.]

Mr. O'Connell. All I have to say then is that apparently music is not one of your many accomplishments. [Laughter.] Some of us can not read Sanskrit, nor Hebrew, nor Greek, perhaps, but that does not mean that we can not read at all, nor that such languages can not be read. There are many of us that do understand the ordinary diatonic notation of music, and many of us that do not. The fact that the vast majority of people can not read music does not prevent it from being a writing.

The Chairman. Do you contend that it is beyond the power of Congress to make that roll copyrightable?

Mr. O'Connell. My contention is, sir, that it is absolutely beyond the power of Congress to make that roll copyrightable.

Senator Smoot. Are there people that can read that roll—that is, the same as Mr. Sousa can pick up that piece of music there [indicating] and read that music? In other words, every slit or cut or dash in that paper represents a note, does it not, just the same as the notes are differently represented upon the paper that Mr. Sousa exhibited—or a musical tone is represented?

Mr. O'Connell. It may be, but I do not think that there is a person, firm, or corporation in the United States or elsewhere to-day that can take that music roll and tell you what particular note any particular slit or dot or dash represents. If I am wrong, I want to be corrected.

Mr. Chaney. It is a notation of tone, then?

Mr. O'Connell. It is simply by relation to what is called the tracker board. This roll goes over a tracker board in which there are little holes. Each hole in the tracker board is connected with a little tube which carries the air through a bellows and to a device which strikes a hammer. As this roll goes over the tracker board of the instrument, when it strikes a hole corresponding to any particular one of those slits there is an ingress of air, because there is a vacuum underneath. That little tube is connected with a hammer which strikes the note A, B, C, and so forth, whatever it might be. They are differently arranged in different rolls. The roll that will play in one instrument will not play in another; and you can see, gentlemen, that there is a different-sized roll, different-sized slits [exhibiting sample rolls] notwithstanding that they are both the same piece of music, composed by Mr. Sousa. [Laughter.]

Senator Smoot. In looking at those two rolls, there is no question but what anybody can tell that they are the same piece of music.

Mr. O'Connell. But look at the difference across——

Senator Smoot. That is only as to the size. You can take that same sheet of music that Mr. Sousa exhibited and have it four inches wide or you can have it eight inches wide, and it would be just the same music.

Mr. O'Connell. But can anybody tell me, if you please, sir, or will anybody tell us, what those notes are?

Senator Smoot. That is the question that I asked you.

Mr. Bowker. I can, by taking a scale corresponding to that instrument and putting it on the paper. By doing that you can tell what the note is.

Mr. Walker. I was counsel in the Apollo case, and the question whether those rolls could be read by inspection was litigated at great expense in that case, and the circuit court of appeals for the second circuit decided, a week ago last Friday, that the overwhelming preponderance of the evidence was that they could not be read.

Mr. Webb. And further, that that is not a copy of the music from which it is taken.

Mr. Walker. They so decided. Judge Colt decided in 1888 that these perforated rolls are not copies of music filed in the office of the Librarian of Congress. That decision was always acquiesced in until the Æolian Company invented its ingenious scheme to monopolize the business of mechanical musical instruments; and in pursuance of that event they endeavored to secure from the circuit court of appeals in the southern district of New York a reversal of Judge Colt's decision. After years of litigation the circuit court of appeals for the second circuit affirmed Judge Colt's decision, and held that these do not infringe the copyright on the sheet music, and, as the foundation for that holding, they stated the overwhelming preponderance of evidence was that they could not be read by anybody; and they stated for that reason that they were not copies, and were not infringements.

Mr. O'Connell. I have been informed, while Mr. Walker was speaking, in response to what Mr. Bowker said, that in this White-Smith suit the complainants tried in every possible way to prove the truth of the assertion which Mr. Bowker has just made, and that they utterly and totally failed to sustain that assertion that those sheets could be read, even with the use of any kind of a scale. That has just been stated to me by a gentleman who is interested.

If you please, Mr. Chairman, the portion of the decision relating to that particular point has been handed to me, and here it is——

Mr. Chaney. We have that decision.

Mr. O'Connell. I want to call attention briefly to just this point in it:

In deciding those cases, courts and committees of Congress do not act on possibilities.

Here is another method of reproduction [exhibiting disk] of the same march of Mr. Sousa's. It is for use in a music box. I do not know what the name of the music box is. The disk was only handed to me this morning. That shows another method of reproducing, and I do not suppose that even Mr. Bowker, with the aid of a scale, can read the notes on it. [Laughter.]

Again, there is still another one here [exhibiting cylinder], which has been handed to me by Mr. Walker, a phonograph record, which he unfortunately says he broke, and which contains the same march by Mr. Sousa. And I do not believe that even Mr. Bowker, with the aid of any kind of a scale, can read that.

Mr. Bowker. My name has been mentioned, and may I say that the character of the phonograph record which uses the very word "graph," meaning "writing," represents the earliest form of writing, that of incised character writing.

Mr. Chaney. Of the time of Rameses.

Mr. Davis. May I state that it remained for the inventor to first devise that scale to which that perforated music was made, and, second, to devise a machine which would interpret that music to Mr. Currier, or all of the other members of the public, as a medium by which any music could be read. That is the only practicable way of reading it, and that was left to the inventor. A mere reversal of that scale, to read backwards, would not be requisite.

Mr. Sousa. I would like to ask the gentleman a question. What value would these various records have if my march was not on them—if I had never written that march?

Mr. O'Connell. I will say to Mr. Sousa with perfect frankness that the only object of that particular record is to produce his march. [Laughter.]

Mr. Sousa. Without my consent.

Mr. O'Connell. I shall not try to hedge. I merely state facts.

Mr. Chaney. Do you think you should do that without compensating him for the genius he displayed?

Mr. O'Connell. Very early in my remarks I disavowed any such intention. I did say that we were in the position—the independent manufacturers that I represent—where we could be forced to the wall because of these contracts, and that the resulting benefits to Mr. Sousa and Mr. Herbert, if Congress had power to and did pass such an act, would be vastly offset by the great detriment to our manufacturing interests and to the public.

While I am on that point I would ask leave to digress and to submit also a copy of a letter from the Æolian Company to the Chicago Music Company, dated the 5th of May, 1902, and offer it in evidence here.

(The letter referred to is as follows:)

I now ask you, Mr. Chairman and gentlemen, to turn to section 15 of the bill, found at page 11 of the House bill, which would seem to me to be rather ambiguous. It provides that the owner of the copyright may commence proceedings and so forth within thirty days, but that he has a whole year within which to complete his copyright. Now, that means that he does not have to put his mark on it, I suppose, and perhaps an independent manufacturer may go ahead for a year, or, rather, for three hundred and sixty-four days, believing that he has the right to do so, and then, on the three hundred and sixty-fifth day the owner of the copyright completes his record, and he is promptly sued for all that he has done for the past year. True, the act says that in such case no action shall be brought for infringement of the copyright until the requirements have been fully complied with; but that merely says that he can not commence the action until he has complied with the act. It does not say that after he has finally complied he can not recover for the infringement during the full year within which he practically permitted his copyright to lapse.

Mr. Putnam. Do you understand that he is not obliged to give notice during the intervening period?

Mr. O'Connell. I am speaking of the one-year provision.

Mr. Putnam. The works that are issued carry a notice, do they not? You did not understand that it was supposed that the works issued were to be exempt from the notice upon them of copyright, did you?

Mr. O'Connell. I would like to know what is the reason for the provision in question, then. If there is no reason for it, it should not be there.

Mr. Chaney. Then you would strike out all of section 15?

Mr. O'Connell. Why not leave the act as it is, and provide that everything must be done before publication, instead of giving them a year in which they might possibly deceive the public?

Mr. Putnam. Mr. O'Connell has asked what is the reason for this section. I will ask you, Mr. O'Connell, if you have observed that the section reads, this section 15, that "if, by reason of any error or omission the requirements prescribed above in section 11 have not been complied with," etc. Now, notice that section 11 does not refer to the requirement of notice upon the published works, but of the requirement of deposit and registration in the copyright office.

Mr. O'Connell. In answer to that I will say that the Patent Committees of both Houses are probably aware of the fact that there have been means found and adopted for many, many years to keep applications for patents pending in the Patent Office and still not have them outlawed. It would be the easiest thing in the world for an applicant for a copyright to commit irregularities for that very purpose.

Another point: In section 18, subdivision C, there may be a copyright obtained under an assumed name. I confess that I do not see the reason for that.

Mr. Chaney. Mark Twain, for instance, instead of Samuel L. Clemens? Is there objection to that?

Mr. O'Connell. I do not see the reason for it, while it might be all right in the particular instance which you suggest. Of course if it is limited to giving a copyright to a man under his pen name, that might be all right.

Mr. Chaney. Is not that the purpose of it?

Mr. O'Connell. It may be the particular purpose of it, but I think the section is so broad that it might include almost anything from Genesis to Revelations.

Mr. Putnam. Where is that in section 18, that you may copyright under an assumed name? Will you state where you find that in that section?

Mr. O'Connell. On page 15:

It is at the end of section 18. That would seem to me to give the right to copyright under an assumed name.

Mr. Putnam. Oh, yes.

Mr. O'Connell. As to the penalties, Mr. Chairman, I think there never has been an act passed where the penalties have been so severe. I will ask you, Mr. Chairman and gentlemen, to turn to section 23, on page 17, of the bill and I will point out as far as I may where it differs from the old act. In the first place, subdivision A gives the right to an injunction restraining such infringement. As to the damages, in addition to the injunction, it gives the copyright proprietor such damages as he may have suffered. In addition to the injunction and the damages, it gives him the right to all the profits which the infringer may have made from such infringement. And now comes the extraordinary provision. It says: "And in proving profits the plaintiff shall be required to prove sales only"—gross sales, I suppose it meant thereby—"and defendant shall be required to prove every element of cost which he claims."

That provision is revolutionary. In every case, both at law and in equity, where the plaintiff has to prove either damages or loss of profits, it is absolutely essential that he prove the actual damages or the actual profits. By that is not meant gross profits, but the net profits which the infringer has made. Under this act all that the plaintiff is required to do would be to prove that the alleged infringer sold so many goods for such and such a price, and the onus or burden of proof is entirely on the defendant to establish all the items of the expense incurred in producing the infringing article. The old act has no such provision.

Next it says that in lieu of damages and profits the court——

Mr. Chaney. It says "actual damages."

Mr. O'Connell. It says that the court, instead of actual damages and profits, may award an arbitrary sum, not less than $250 nor more than $5,000, and it says that that sum shall be made up in this way: For every copy of a music roll or a phonograph record, $10. The old act provided for practically the same kind of a record, the same genesis of things, $1. Why, Mr. Chairman and gentlemen, should you impose a penalty of $10? The old act has it that paintings, statues, or sculptures should pay a penalty of $10. It also has it that prints, etc., should pay $1. Why should you put a music roll into the category of paintings, statues, or sculptures at $10, rather than into the other category?

Mr. Burkan. We will submit an amendment making that $1. The music publishers will submit an amendment making that $1.

Mr. O'Connell. I thank the music publishers for considering us, even in the very slightest degree.

Five thousand dollars would seem to be the limit in any one suit, but suppose the complainant brings 20 or 50 different suits in different jurisdictions, which he would be permitted to do under other sections of the act, which I will point out presently.

Subdivision third of that section 23, says: "In the case of a dramatic or musical composition not less than $100 for the first and not less than $50 for every subsequent infringing performance."

I submit, Mr. Chairman and gentlemen, that we are also liable to that penalty as well as the $10 a roll, because these very astute gentlemen who are back of this bill, on the very first infringement will claim that any performance on an automatic piano player whereby Mr. Sousa's march or Mr. Herbert's composition is played on a pianola or one of the independent pianos, is a musical performance, and that for the first performance, in addition to the $10 a roll, we are liable to be fined $100, and for each subsequent performance $50. I think that this section, if the other provisions of the bill are to remain in, should be amended so as to say that this shall not include a performance on a perforated music roll or on phonograph or music machine disks.

Some other extraordinary provisions of the penalties are, first, this subdivision C of the fourth paragraph of section 23 provides that the infringer is—

That is an extraordinary provision. They get an injunction pendente lite, and not alone that, but we have to deliver up to them everything pendente lite. The injunction is not good enough, and we have to give the goods to them.

Next, it says (subsection D):

It may be proper, as in the old act, to direct the infringer to deliver up the copies or the plates from which they are made, but it is absolutely revolutionary to direct that the machinery be delivered up, because that machinery may be useful for perfectly legitimate purposes, and yet it must be delivered up for destruction.

It also provides that all those results can be obtained in a single action.

As to the jurisdiction of courts in suits of this kind, here is the provision of the bill:

Let us assume that my client, a manufacturer of an automatic piano player in the city of New York, ships one of these with a box of music rolls to Manila or some inland town in the Philippines. If it is an infringement, the infringement has occurred in the Philippines, because the music roll is not published until it is taken out of the box. According to this act they have a right to commence an action in the Philippine Islands. According to another subsection of section 32 they can send the process to the marshal in the southern district of New York, and that marshal serves the process, and thereupon the court of first instance in the Philippine Islands has jurisdiction, and the defendant has to go to the Philippine Islands to defend the case. And a still greater objection is that the complainant in such an action may commence a hundred concurrent suits and distribute them in every court in the United States, the Territories, Porto Rico, and the Philippines.

Mr. Chaney. The idea, of course, is to put it within the reach of these people who are injured.

Mr. O'Connell. Does that put it within the reach of the New York corporation, or is it part of their proper proceedings to get damages or redress that they should go to the Philippine Islands to sue my clients who are domiciled in New York, where the Æolian Company is domiciled, and make us go over there to defend the suit?

Mr. Chaney. No; but suppose the person injured lives in the Philippine Islands?

Mr. O'Connell. If that is the conclusion, if you simply want the plaintiff to sue in the jurisdiction where either the real plaintiff or the defendant is an inhabitant, then that raises another question.

Mr. Chaney. Evidently that is what has been intended. There was no purpose of anybody to take all the fellows out of New York, because that is a splendid place to live, you know. [Laughter.]

Mr. O'Connell. But we have to come to the fountainhead occasionally. [Laughter.]

Mr. Webb. The act distinctly says "In the district where any violation of this act has occurred."

Mr. O'Connell. Under the old provision with regard to infringement, you could only sue a defendant where you found him, in the district where he resided. That is the provision in relation to patents, and the provision of the bill as the old act stands. Why should this new provision be inserted? Perhaps the members of this committee will be able to determine.

Mr. Chaney. I take it that that was for the purpose of making it convenient to the person injured, or the parties injured.

Mr. O'Connell. That might be all right, if the party injured was a resident of the Philippines.

Mr. Chaney. Yes.

Mr. O'Connell. Or of the Sandwich Islands, or Porto Rico?

Mr. Chaney. That is the idea.

Mr. O'Connell. I think you will find that there are none of the owners of any of these copyrights living in any of those districts; none of them. I do not suppose that Mr. Sousa intends to change his residence just at present, or Mr. Herbert either. I think they will be found doing business here right along. [Laughter.]

Section 34 provides—

Why not leave that the old two-year limit? What is the necessity for three years? There is no reason for that.

Then, look at the provision in section 35.

Mr. Chaney. Is there a disadvantage in putting it three years?

Mr. O'Connell. Why should it be extended to three years?

Mr. Putnam. Is it not true that the present limitation is only for actions for penalties or forfeitures, whereas this is a general limitation on all actions, including civil actions for infringement, so that although it enlarges by one year the criminal action, it reduces the term that the complainant at present has in his civil action? This now applies to all actions. Did you notice that, Mr. O'Connell?

Mr. O'Connell. I think that the present provision relating to kindred actions of this kind is a two-year statute of limitations, and it has been found ample for a great many years, for all purposes, to protect patentees, inventors, and everybody else.

Look at section 35:

That is to say, where the complainant recovers he must get from the defendant, and the court must allow the complainant, full costs. Let us assume a case where the defendant gets the bill dismissed. That is not a recovery. He does not get a recovery, but there is no provision giving the defendant in that case full costs. Oh, no. They are only careful of the complainant where he recovers; but where his action fails there is no provision giving the defendant full costs.

Mr. Webb. You would strike out "recoveries" and insert "suits?"

Mr. O'Connell. If you want to do it that way. You will not be then giving one side any more than the other. But I think that provision should not be in there at all. I think the court should have full discretion in the award of costs, these actions being mostly equitable actions, and the general rule being that in a court of equity the awarding or denial of costs is in the discretion of the court.

I see no reason why the jurisdiction of the courts should be limited by a provision of this kind. I think it should be left to the courts to say in all cases whether costs should be awarded or withheld, and how much costs should be awarded; although I think there should be a provision to the effect that in the case of an action wilfully brought, and where there is no recovery—brought simply for the purpose of intimidation, where there is no reasonable ground for recovery, simply to get hold of the man's business and keep him from doing business—that there should be some provision in there giving a penalty against the complainant in such an action as that. I have only thought of that at this moment, but I think it is a good suggestion to make to the committee.

Gentlemen, I thank you for the time you have given me, and I have no more to say on the subject. I again ask, however, as I did at the outset, that on these contracts and on the question of the monopoly in the hands of this concern and its associates, the committee should take proofs such as may be necessary to determine what the situation is. All I ask on behalf of the independent manufacturers of automatic musical instruments in the United States is that we should have a fair show, that our business should have the same protection as any other business has, and that you gentlemen may not do anything which will help this great centralization and put it in the power or a monopoly to ruin our business.

Mr. Putnam. I understand that Mr. H. N. Low is by agreement to speak next.

STATEMENT OF H. N. LOW, ESQ., OF WASHINGTON, D.C.

Mr. Low. I appear for the manufacturers of the music rolls and of instruments operated by such rolls.

Mr. Currier. I understood that the music-roll people had had over two hours now.

Mr. Low. Pardon me. My remarks will be very brief.

Mr. Currier. The talking-machine people are to have thirty minutes, and the committee can not sit here a very great while.

Mr. Low. My suggestions will be very brief.

The Acting Chairman. We have to adjourn in a little while, and the gentleman who preceded you exceeded his time.

Mr. Low. Then to merely supplement the remarks of the gentleman who has preceded me, I ask leave of the committee to submit two more contracts, similar to the ones that he has submitted, with the Æolian Company in the carrying out of the agreement that we allege. My information is that that agreement now embraces practically the whole music-publishing trade, and those outside of that agreement are very small manufacturers, and the trust or combination is just about complete and ready for this legislation. I submit that this legislation is most dangerous, and that this pretended revision of the copyright law is a cloak for something that is very wrong.

[The contracts referred to by Mr. Low are as follows:]

Mr. Chaney. I would like to have this gentleman who has just spoken to us (Mr. Low) submit a typewritten statement relating to the various sections in the bill to which he objects, and setting out his objections.

The Acting Chairman. Without objection that privilege will be accorded to him.

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:

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:

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:

Mr. Chaney. What do you understand the word "works" to mean in section 4?

Mr. Cameron. It may mean anything that is reduced to writing, or that is not reduced to writing. It may be an oral speech that is absolutely wafted upon the winds of the air and never gets into permanent form. In proof of that we go to section 5, line 20: "Oral lectures, sermons, addresses."

The talking-machine art stands in a somewhat different position from that of the perforated music roll. You take a sheet of music and you have Sousa's or any other band play that music into the horn of an instrument, a patented apparatus. That machine engraves lines corresponding to what? To the sound waves produced by the band or the voice of the performer on the wax or other tablet.

Now, if you make that word "works" read "writings," as I understand, as the Supreme Court has interpreted the word "writings," it means this, in its broadest signification: That the idea of the author has been recorded in some tangible form, in such a way that another, through the eye, may have the idea of the author impressed upon his brain. That may be a painting; it may be the work of an artist. I think the Supreme Court has included a painting under that term because of that very fact, that the idea of the artist was recorded in some tangible form and, through the eye of the beholder, the idea of the artist was conveyed to the brain of the beholder. That is what a writing is, as I understand it, within the meaning of the Constitution.

Mr. Chaney. The effect of your argument is, then, to limit the word to something that can be read by anybody?

Mr. Cameron. Not necessarily by anybody.

Mr. Currier. But by somebody?

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

Mr. Chaney. I mean to say, that can be read by persons understanding the same language?

Mr. Cameron. Yes; something that is capable of conveying to the reader, if you may call him such, the idea of the author.

Mr. Chaney. And in that respect it would cut out the music-roll proposition altogether?

Mr. Cameron. As my predecessor has told you, there is a dispute in regard to that, and I am not qualified to state. As far as I have been able to analyze the evidence, the preponderance is against the idea that the music roll can be read. But I do know this: There is a graphophone record of the disk form [exhibiting record to the committee]. There is a graphophone record of the cylinder form [exhibiting record]. I defy anyone—I defy Mr. Sousa to read that and tell whether it is one of his marches or whether it is a speech of a Member of Congress. [Laughter.]

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

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

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

Mr. Cameron. I am not making this statement theoretically nor as a lawyer. I make it as an expert in this particular art. I have spent months and months of time with the microscope myself striving to do that very thing, and I know it can not be done.

Now, let us go one step further. What is it that makes that graphophonic record valuable? I can take Mr. Sousa's score and I can select some person, some alleged musician in this audience, and I can hand him a graphophone and tell him to make that record, and it would not be worth one cent upon the market. It takes the genius of a Sousa to play into the horn. It takes the voice of the magnificent singer to sing into the horn; and it takes the skill of the mechanician who is operating the graphophone to make a fine record that has a marketable value.

You ask me if I would use Sousa's march, make that record and sell it, and not pay him any royalty. I answer, "Yes; I would;" because I have paid him royalty. Whenever Mr. Sousa publishes one of his pieces of music and puts it out upon the market and I pay the price of that music, that sheet of music passes from under the monopoly, just as when I patent a cornet and sell the cornet to Mr. Sousa, and he pays the price for it, it passes out from under the patent monopoly, and he has a right to use it. Suppose I should come here and say to you that every time one of Mr. Sousa's cornet players played the cornet that I had sold to him that he should pay me royalty for having played it! That is what he is asking of you. That is not all.

Mr. Sousa himself does not scorn, as he pretended to the other day, these "infernal talking machines." The day has been when Mr. Sousa himself came with advance scores and begged to have them put upon the machines, in order that they might popularize his own music. Nor is that all. He to-day is under contract, and he plays into these "infernal machines" with his band, and he is contributing, as he told you a few days ago, to stifle these "beautiful young voices that now have disappeared throughout our city and our land." [Laughter.] He does it for the almighty dollar. That is what he is after, and he frankly told you so.

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

Mr. Cameron. You are; and, as I said to you the other day, I respect you for it. All the men urging this bill are not as honest as you are, sir.

Mr. Chaney. That is neither here nor there. We give them all credit for being honest.

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

It was stated a moment ago, and it is a fact of which I wanted to speak, that the intention here is to give everyone a fair show. The gentleman here on my left (Mr. Webb) suggested that this bill would not prohibit the perforated music rolls (and the same question would apply to the graphophonic cylinder) from the reproduction of those pieces of music or other copyrightable works which had appeared and been copyrighted prior to this act. In that he is in error. Section 3 says:

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:

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:)

Mr. Currier. I wish to say that last winter some time Mr. Griffin, who is interested in one of the perforated-roll concerns, called at the committee room and talked about this matter, and I advised him at that time to see Mr. Solberg and Mr. Putnam. The committee clerk has had some correspondence with him since that time, and other gentlemen connected with that same business, I suppose, have been into the committee room to make inquiries regarding this matter pretty nearly every week for months.

Mr. Cameron. I would like to say that I do not even know who Mr. Griffin is.

Mr. Currier. He is the vice-president of the General Electric Company. I think he lives in Brooklyn and is connected with some perforated-roll company.

Mr. Cameron. I wish to point out that the remarks that I made were in connection with the American Graphophone Company and the automatic talking machine, and not the perforated-roll business. That is the matter that is involved in these suits, not the talking machines.

Mr. Burkan. Mr. Griffin represents the Edison Company, and they manufacture talking machines.

Mr. Davis. Mr. Griffin does not represent the Edison Company, and he is a director of the Perforated Music Roll Company, who operated under my patents. General Griffin is now in Europe, and this notice which I referred to yesterday, in which I stated that notice was given me that my license would be canceled in case this bill passed, came from Mr. Henderson, the acting manager of the Perforated Music Roll Company, on behalf of General Griffin and other directors.

Mr. Henderson notified me that the passage of this act would put them out of business. He also stated to me that General Griffin had stated to him that he attended these conferences, and that he considered them logrolling proceedings, and that in time he would take action to oppose them. But at present General Griffin is in Europe. I am sure, from his remarks, that he would oppose this measure in the strongest possible way.

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

Mr. Chaney. I think it is due to this record to say that the ultimate responsibility about this whole matter rests with Congress, and that these matters are all simply advisory, to help us to the proper conclusion and result, and that none of these gentlemen are going to be deprived of an opportunity to express themselves in whatever way they please, and to say whatever they may have to say, and that, so far as we are concerned, there is no star-chamber proceeding about it, and no logrolling business about it. We are here simply to get advice the best we can, and therefore we shall undertake to hear everybody.

The Chairman. Mr. Chaney is entirely right. The sentiments that he has expressed have been freely stated by the committee during the past three or four days that we have been in session. The committees of the Senate and the House are willing, and will be willing, to hear anyone who has objections to or who is in favor of this bill at any time within any sort of reason. It seems to me that it is to little purpose, so far as the committees are concerned, that there should be any controversy between anyone regarding the past. Who is the next witness?

Mr. Currier. I might say that it was for that reason that both committees decided to make no effort to report this bill at this session, but to let it go over until next winter, in order that people could have an opportunity during vacation to file briefs and such statements as they might desire to offer.

The Chairman. That is the precise purpose of the statement made by Mr. Currier in behalf of the House committee at the first session or the second, and by myself in behalf of the Senate committee.

Who is the gentleman that desires to be heard further?

Mr. Putnam. Mr. Cromelin.

The Chairman. You have how many minutes?

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

The Chairman. You were limited, two days ago, to one hour for your enterprises. Mr. O'Connell had a little over an hour, and I am told that after I was compelled to leave for the Senate yesterday somebody representing these interests had fifteen minutes. We will give you fifteen minutes, with the privilege of submitting in writing any further statement that you desire to make.

Mr. Currier. It is necessary to do that, for the reason that two gentlemen are on the way here from Chicago who want to be heard this morning, representing the same interests that you represent.

Mr. Serven. I present, Mr. Chairman, a letter from the chairman of the copyright committee of the Music Publishers' Association, explaining how Mr. Thomae, who was criticised yesterday as being one of their delegates, came to have a seat with them in the conferences. It occurred to me that it would save time to have it read for the information of these gentlemen.

The Chairman. You may put it in the record.

(The letter referred to is as follows:)

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:

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:

In dismissing the suit the court referred to a similar suit decided in France February 1, 1905, in which it was confirmed that—

Twelfth. That the proposed legislation in so far as relates to mechanical reproductions is in furtherance of the plans of certain powerful interests to obtain a monopoly—an international monopoly—on mechanical reproducing instruments of all kinds, and that they are attempting to use the legislative branch of the Government to secure that which has been repeatedly denied them by the courts.

Thirteenth. That it is vicious, in that if it is permitted to be enacted into law it will deal a deathblow to great American industries which have been extended until now they embrace all countries, and in which millions of dollars have been invested in the knowledge that the right to manufacture was perfectly lawful and that the right to continue such manufacture, unhampered by such ruinous conditions as would be imposed by this bill, could never be brought into question or become the subject of serious dispute.

Fourteenth. That if this bill becomes a law it will seriously affect the rights of thousands upon thousands of American citizens who have purchased these machines and who have the right to expect to continue to use them and to obtain the supplies for them at reasonable prices instead of paying tribute to a grasping monopoly.

Fifteenth. And finally, that whatever arguments may be advanced by the association of musical publishers (and their allied interests, whose representatives framed the bill, and who, if it becomes a law, will get 99 per cent of the benefits to be derived therefrom), regarding other methods of mechanically producing sound on the theory that the same constitutes a method or system of notation and under certain conditions may be read by persons skilled in the art, under no circumstances can such arguments be truthfully advanced to cover or apply to talking machine sound records.

No man living has ever been able to take a talking-machine record and by examining it microscopically or otherwise state what said record contains. In this sense it stands preeminently in a class by itself, being unlike perforated rolls, cylinders containing pins, metal sheets, and other devices used in mechanical production of sound, and is not to be likened in any manner to the raised characters used in methods of printing for the blind, where by the sense of touch the meaning is intended to be conveyed. The sense of touch is a mere incident due to the disability of the blind, but it is perfectly feasible and easy to read the characters with the eye, and they are very properly the subject of copyright. I repeat, that to attempt to decipher a phonograph disk is in the very nature of the proceeding "reaching for the impossible." How utterly preposterous and ridiculous it would be to pass this act in its present shape, which would make a telegraphonic sound record, which is something that can not even be seen—the record itself being caused by the magnetization and demagnetization of an electric current of an ordinary piece of wire or a cylinder or disk of steel—a violation of the copyright laws.

You have seen several examples, gentlemen, of methods of reproducing sound. Mr. Cameron showed you yesterday the disk form of talking-machine record. [Exhibiting disk.] That record, if you were to examine it under a microscope, is an engraving of the sound, which is produced by a method wherein the sound waves are engraved laterally at a uniform depth.

Another form is the cylindrical record. Mark you, gentlemen, our company is the only one on earth that manufactures both forms. We are vitally interested in this legislation. In the cylindrical record the cut is of uneven depth. It is an up-and-down cut.

There are other methods, and one or the most important discoveries of the age—a discovery which was considered of so much importance that at the St. Louis Exposition of 1904 it was given great prominence in the Government exhibits—is the telegraphone.

I have here a record [exhibiting record] and I would like to ask Mr. John Philip Sousa if he can recognize "The Stars and Stripes forever" upon it. I would like Mr. Bowker, who stood up yesterday and said that he could read the music roll—which I emphatically deny—whether he recognizes an address of Mr. Victor Herbert upon this form of record [exhibiting record]?

I doubt very much whether these persons who have come down here for the purpose of putting through this legislation have ever seen this thing. They do not know what it is, even. That is the sound record. I do not know what it is. Nobody knows what it is until you put it on the machine. Yet it can be reproduced indefinitely, and it can be destroyed by that peculiar power which we know not, because no one knows at the present time what electricity is. I want to tell you what you are doing: When you pass this bill and make it a law, you make that piece of steel copyrightable [indicating]. You make this record spring copyrightable. You do not see anything on it. Look at it closely. There is nothing but a magnetic current—an electric current—by which the sound is actually recorded and can be reproduced indefinitely. I regret, gentlemen, that I am not able to show you; and I hope at the sessions of Congress, or during the recess, to personally demonstrate what I am bringing to your notice this morning.

There is one other point I would like to bring to the attention of you gentlemen, and that is this: That in the cylindrical form of talking machine it is not necessary for the manufacturer to make the roll. In every other mechanical instrument which has been referred to here the process is a factory process; but, as I am speaking, the very words that I am uttering are being taken down by Mr. Hanna, and in less time than an hour these words will be transferred to a graphophonic record; and by that means to-morrow morning you will get your printed record. For fifteen years the reports of the House of Representatives and the Senate of the United States have been prepared in this manner. And now, when you make this bill a law I can not, notwithstanding the fact that I have purchased a piece of music of Mr. Herbert, take that which I have purchased and sing it into my machine at all. It is impossible to do so. I wish to draw this fine distinction, and show you that in the cylindrical form of talking machine it is not a mechanical operation which is done in a factory, but that it is an instantaneous form of photographing the voice. I would like to have a notation made of that.

You have limited me as to time, but before closing I want to show you what the practical operation of this bill would mean.

The Chairman. Your time has expired.

Mr. Cromelin. May I have just one moment?

The Chairman. You may have one minute more.

Mr. Cromelin. I would like to show you the point of the multiplicity of royalties. Under this law I go down to John F. Ellis's and buy a sheet of music composed by Mr. Victor Herbert. I pay the royalty at the time that I buy that music. I am a singer and I want to sing it. I go to a talking-machine company; but no, I do not dare. I must seek Mr. Herbert. And he says: "You are going to make a big sum on it, and you must pay me $25." I pay him $25, and I go to the talking-machine company and the company does not dare to proceed. They must first seek Mr. Herbert. Mr. Herbert says: "You are going to make a lot of money out of this; I want $100 before you can make the record." We pay that for the record.

I do not know when I get the record whether I am going to get a thing. It goes through a factory process, which costs me another hundred dollars, and then the record is made. I am about to announce the record to the people of the United States, and to give them the privilege of hearing it. What happens? No; I do not dare to do it. Every American has to pay tribute to Mr. Herbert. Before I can sell those records Mr. Herbert must get a royalty of 10 per cent on every one of them. I do not believe it is the meaning of the Constitution to do this.

Let us go one step further. At a recent banquet in Portland, Oreg., of the "Ad. Men's Association," by arrangement with the telephone company, over the seat of every person who participated in that banquet there was a little horn attached to the telephone, and there was a Columbia graphophone at the central office. But if this bill becomes a law the telephone company would not dare do that. They would not dare give the people in the country the privilege of an evening's entertainment, where they can not get to the big cities, without first arranging with Mr. Herbert. Mr. Herbert would say: "No; you can not do this. I want a hundred dollars' profit before you do that." After you have done it, everybody who pays a toll of 5 cents for an evening's entertainment to the telephone company pays its tribute to Mr. Herbert. I do not believe that that is the intention of you gentlemen.

I regret that I am so much limited as to time, and I hope to appear before you during the summer session, as I believe that I can throw some new light on the situation.

Mr. Currier. You gentlemen speak of the committee holding sessions during the summer season. The House has no such authority. The members of the House are likely to have a very busy season, and it will be impossible to get the House committee here during the summer. But the House committee will be here on the first Monday in December, ready to hear you gentlemen.

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

Mr. Chaney. In the statement that you submit I would like to have you make it specific as to which sections you object to, and make your argument apply to those sections.

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

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

Mr. Cromelin. Yes, sir.

STATEMENT OF ALBERT H. WALKER, ESQ., OF NEW YORK.

Mr. Walker. Gentlemen of the committee, I sincerely thank you for the compliment implied in giving me an hour in which to express my views upon this bill. The allowance is liberal, and it will not be extended except at the request of the committee. My hour will be an hour of sixty minutes, and my remarks will end at twenty minutes before 12, if they end in the middle of a sentence.

I do not appear in behalf of any particular interest, although I have one client which is interested in one section of the bill. I do not propose, however, to address myself particularly to the interests of that client. I do propose to address myself to the bill as a whole.

I think that the gentlemen who prepared this bill are to be thanked by the committee, and by the people of the United States, and by everybody else, for the large amount of labor which they have devoted to the preparation of that proposition for legislation. I particularly desire to express my personal appreciation of the labors of Mr. Putnam—his entirely disinterested and very skillful labors in the preparation of the bill.

We have had copyright laws in this country now for exactly one hundred and sixteen years, and none of them have been scientific; none of them have been systematic; none of them have been well developed. It is high time that the whole system of legislation upon the subject should be put upon a scientific basis and should be developed in a scientific form. This bill is a sincere attempt to accomplish that result. It contains a number of provisions which I heartily approve. It contains much that I think ought to be amended. I trust that out of this bill, and before the end of the present Congress, a bill will be evolved which will be enacted into law, and which will be just as to all parties and of very much benefit to the American people, and of benefit to the composers and the authors, who are the particular subjects of the bill. I believe, however, that before that result is accomplished extensive amendments must be made in this bill.

I am going to devote the first ten minutes of my time to stating the principles upon which I think those amendments ought to be framed, and after that I am going to apply those principles to portions of the bill, to show what changes would result from the application of those principles to the bill. In order to say what I intend to say on the subject of principles, it will be necessary for me to indulge in a few moments of historical statement.

When the scholar looks over the civilizations of history, he finds only one principle that pervades them all, and that principle is the principle and idea of the continuity of private property. China, Greece, Rome, Babylon, Nineveh, Judea, Egypt, England, Germany, Russia, the United States are all pervaded, as Japan is, by the notion of the continuity of private property. And when I speak of the continuity of private property I mean its continuous continuity, its hereditable character, its passing down from father to son, from age to age, and from generation to generation.

My good friends Victor Herbert and John Philip Sousa, men whom I respect personally as well as professionally, are basing their desire for the passage of this bill upon the notion which they have that that idea of the continuity of private property inheres in their intellectual productions; and there is exactly where my brothers are mistaken.

I am myself an author. I am an author of books and writings. A hundred of them probably have been published. I am the author of a very large number of addresses, which have been delivered without writing, on religious, historical, economic, legal, scientific, and miscellaneous subjects; but I know, as well as I know any proposition in history or in law, that I have not any element of private property in any of those intellectual productions, in the sense in which I am defining private property, namely, with the idea of continuity.

Why is that so? It is so because from the foundation of the world until now there never was a nation and there never was a day when the idea of the continuity of private property was connected in the minds of men with intellectual productions. England has developed the idea of private property more fully than has any other nation; and England never ascribed the idea of the continuity of private property to any intellectual production, either for an invention or for a writing. To this day no man has a right in England to a patent on an invention, and never has had. The granting of any patent on an invention in England is dependent entirely upon the pleasure of Edward the Seventh; and the patents themselves, when granted, each one of them sets forth that fact, and states that Edward the Seventh thinks on the whole that it will benefit the realm to grant this patent, and proceeds to grant it. But if Edward the Seventh and those who represent him choose to decline to issue a patent in pursuance of any particular application they can do so in entire conformity with the laws of England.

In respect to the protection of private property relevant to intellectual productions in the domain of books or musical compositions, this is the history in England: Prior to the time of Milton nobody had a right to publish anything in England without the permission of the Crown, and that permission was granted or refused, not with reference to the deserts or the merits of the author or the composer, but with reference to the opinion of the Crown as to whether or not the published thing would be beneficial or not beneficial to the public interests. And the Crown usually identified the public interests with the interests of the Crown, so that it suppressed what it desired to suppress and permitted to fly what it desired to be published.

At the time of the Commonwealth publication became free and was free, but there was still no notion of any exclusive right to publish a particular literary or musical composition inhering in the author of that composition; and that right never did begin and never was heard of in England until the reign of Anne, when Parliament passed a statute establishing such a right for a limited time.

In 1769 a copyright which had been issued under the statute of Anne had expired, and the owner of that copyright determined to test the question in the English courts as to whether or not there was a perpetual right of copyright under the common law of England, regardless of the statute of Anne, and the owners of that copyright brought suit for its infringement after the term established by the statute of Anne had expired; and the question whether such a common-law right existed or not came before the court of king's bench when Lord Mansfield was chief justice of that court. The court of king's bench decided, as an academic proposition, that there had been anciently an exclusive right to an intellectual production under the laws of England. That was, however, a purely speculative statement. They could not point to the time when anybody asserted any such right or to an instance when anybody had acquiesced in it. They simply took the ground, as an academic proposition, that anciently there had been such a right. They also decided, however, that whether that right existed or not, it had been ended by the statute of Anne, and that the statute of Anne circumscribed the right to the limited time provided for by that statute.

From that decision or the court of king's bench the plaintiff appealed to the House of Lords, sitting in its judicial capacity. We sometimes have the notion that when the House of Lords sits in its judicial capacity all the peers of the Realm—500 in number—assemble together and hear the arguments and render a final decision, but it is not so. Only the law lords participate; and if an ordinary nobleman should venture to sit when the House of Lords was sitting in its judicial capacity he would be hooted out of the room, and his presence would be made to appear to him to be extremely unwelcome. The number of law lords that sat at the time of the hearing of that argument was 11, and 6 of them rendered the opinion that the statute of Anne was the only foundation known to the law of England for exclusive right to an intellectual production, and that therefore the plaintiff was not entitled to recover.

That was the situation of the laws of England at the time of the foundation of our Union, at the time of the Declaration of Independence, and at the time of the framing of our Constitution. In 1787 our Constitution was framed, and the fathers inserted in that Constitution this provision:

That is the only foundation that exists for the patent laws of the United States, and it is the only foundation that exists for the copyright laws of the United States. It is true that a copyright when it is issued in accordance with the statute made in pursuance of that Constitution is property, but it is not property in the historic sense of property. It entirely lacks the notion of continuity. It entirely lacks the notion of permanency. It is a species of property created, and not arising out of the circumstances of civilization and human life, as property in general has always done, long preceding governments. It is a species of property created by the law-making power, and a species of property created by the law-making power in a matter not inherently subject to property right.

In creating that particular property the constitutional convention was influenced by this consideration: We will not grant a permanent property right in any intellectual production, because in our judgment that would be inconsistent with the progress of civilization as a whole, but we can consistently, with the progress of civilization as a whole, grant a limited property right in an intellectual production. Therefore they did provide in the Constitution that though Congress might give to authors an exclusive right, the right must be limited in point of duration, and therefore Congress has not the slightest power to grant a permanent right in any intellectual production.

Victor Herbert may hereafter, as I hope he may, rival some of the great composers of the past and produce music far better than the splendid music that he has thus far produced, but if he does it will be impossible for Congress to reward him and his heirs with a permanent absolute property right in any such intellectual production. The best we can do, Mr. Herbert, is to give you a limited right to your intellectual production. That limited right is limited not only in respect of duration, but it is limited in respect of quality, in respect of formal expression, and it is limited thus: There shall be, according to the constitutional provision, an exclusive right for a limited time and for a limited form of expression, and that limited form of expression is defined by the word "writings."

Mr. Chairman and gentlemen of the committee, I have spent my laborious life as a lawyer, a scholar, an inventor, an author, and a lecturer. I have delivered hundreds of addresses that never were reduced to writing. I have delivered but few that were. In so far as I delivered those lectures that were never reduced to writing, I am not entitled, either by law or by ethical principles, to any exclusive right. I am entitled to an exclusive right to my intellectual productions only when I reduce them to writing and file them in the office of the Librarian of Congress, where they will remain a permanent monument, and can be handed down to future times and can be read and availed of by my contemporaries.

The Constitutional Convention wisely provided that if the American people are to grant a monopoly in an intellectual production the man who makes that intellectual production shall give it to the American people; and he gives it to the American people by first furnishing them the fullest information of its character, in the case of a patent, or in the case of a copyright he gives it to the American people by consenting to the terms upon which it was issued, namely, that it shall be free after the expiration of the limited time for which it was granted. Further than that, in taking out a copyright, or in taking out a patent, the man consents that the copyright shall be confined to his writing, and shall not extend to any other form of expression of his intellectual idea.

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

Mr. Chaney. Just a moment: It has not occurred to me that this is not either a question of continuity of property or a question of the quality of the property. It is simply a question of just to what extent people are to be given the control of their own writings, and as to just through what different forms they will be able to trace their property.

Mr. Walker. That is the question, and that is the exact question which I am going to address myself to now.

Mr. Chaney. Very well.

Mr. Walker. The case of the "Trade-Mark Cases" was decided by the Supreme Court of the United States in 1880, and it is reported in 100 United States Reports, at page 94. In that case the owners of certain collocations of words which they were using as trade-marks sought to sustain the validity of their trade-mark under the copyright law, holding that those words constituted writings which were copyrightable and which had been copyrighted.

The Supreme Court unanimously decided that the statute which they invoked, which statute was abundantly broad enough to cover that provision, was unconstitutional, because although these collocations of words were writings in the literal sense they were not writings within the sense of the Constitution. In so deciding, the Supreme Court narrowed down the meaning of the word "writings" instead of extending it, by holding that the Constitution gives a monopoly not to writings in general but only to such writings as have some literary character and permanent value in themselves. This is the language of Justice Miller:

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:

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:

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.)

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:

That was the very act that the Supreme Court held fifteen years ago was unconstitutional as not authorizing copyright on things which are not writings. So that there is a recommendation to this committee to reenact a law that the Supreme Court has expressly held to be unconstitutional.

Now, come, if you please, to the second page of this bill. The first section of this bill enumerates exclusive rights to be covered by copyright. Subsection C is:

Mr. Campbell. What page is that?

Mr. Walker. The top of page 2.

Senator Smoot. Subdivision C.

Mr. Walker. (Reading):

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.

Section 4966 of the Revised Statutes covers that ground already, and provides that copyright may cover the performance of dramatic work. But I hold, and I hold without the slightest hesitation, that that whole section 4966 is unconstitutional. No court has ever held it to be constitutional, and any attempt on the part of Congress to grant a copyright to enable a man to monopolize the rendering of a play on the stage is preposterous. The fathers who went to Philadelphia in 1787 had more weighty business on hand than to give to playwrights an added grip on the monopoly of their productions in addition to the common-law grip that they already had. At that time and now the author of a play is abundantly protected under the common law, but Congress in 1870 provided an additional grip for the playwright under the copyright statute, in face and eyes of the fact that the Constitution under which they were acting was confined to writings. But if I do not remember wrongly (and I think the gentleman from North Carolina will agree with my recollection) about 1870 Congress did several things that could not be fully vindicated under the Constitution.

Mr. Webb. Yes.

The Chairman. Mr. Walker, have you in mind the exact language of the Constitution?

Mr. Walker. Certainly.

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

Mr. Walker. "Congress shall have power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and I would like to ask Mr. Victor Herbert whether, during the last few years, he has with his orchestra performed copyrighted music of other composers, of which copyrighted music he purchased and had the sheets there for the performance?

Mr. Herbert. With their permission.

Mr. Walker. Did you get any other permission than the purchase of the sheets?

Mr. Herbert. That is included.

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

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

Mr. Walker. What is written on the sheet?

Mr. Herbert. Permission for performance.

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

Mr. Herbert. Yes.

Mr. Walker. In all cases?

Mr. Herbert. That is, on the corner of the sheets—"permission to perform."

Mr. Walker. Very well, if in his case it is there. But this is the situation of the law at the present time: If one of you gentlemen goes to church and joins in the singing of a hymn that is the subject of a copyright, you are liable to a penalty of $100 for the first time you join in that singing, and a penalty of $50 for every subsequent time, unless you yourself bought that particular hymn book at first hand from the publisher. That is the law now.

Mr. Sulzer. Suppose the church bought it?

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

Now, that section 4966 has been violated more than a million times since Congress enacted it in 1897, and Congress does not notice the difference; and I take it that it has taken no steps to vindicate its dignity.

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

Mr. Walker. Yes; I understand about that pending bill, but I am speaking of the law as it now exists. So that, gentlemen, I take the ground that any legislation that gives to the composer of any music the exclusive right to publicly perform that music is outside of the Constitution, because a copyright on a writing can be infringed only by writing; and when some gentleman or some lady stands up in a church and sings a song out of his or her mind he or she is not doing anything about any writing.

Clause G is one to which I direct attention. That clause G is the one that is directed against all music-playing instruments. The gentleman who preceded me did not make entirely clear the nature of this beautiful instrument that he showed the committee, which he stated was capable of rendering music. What he showed to the committee was a perfectly plain steel cylinder. When you look at it you can see no——

Mr. Currier. Most members of both committees are perfectly familiar with that instrument.

Mr. Walker. Very well; I am very glad to hear that. There are a very great many persons who are not.

Mr. Currier. That instrument was exhibited before the House committees in the Fifty-seventh Congress.

Mr. Walker. Oh, yes—then you know all about it. There are a great many gentlemen who have not been informed about it, and I thought I would mention it.

Aside from the matters of constitutional consideration—I have twelve minutes left, and during those twelve minutes I wish to devote myself to some criticisms of this bill which have nothing to do with the constitutional questions that I have been discussing. Those criticisms are equally applicable whether the bill is to be framed and enacted on the basis of "works," or whether it is to be framed and enacted on the basis of "writings." And in any view that anybody may take about the scope of the copyright, the criticisms to which I am now calling attention deserve consideration.

The first one is in section 13, which is one of those sections that is intended to give the American manufacturer the monopoly of manufacturing copyrighted books.

That purpose is a good one, but that section is not well drawn to effect that purpose, because the gentlemen who drew the section were not thoroughly acquainted with the art of printing in its modern development; and the suggestions I have to make to the committee are with a view to strengthening that section so as to close up some loopholes that the authors of the section left wide open.

The language is:

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 ought to be amended by adding the words "or be based on any infringement begun before the time of that compliance," because otherwise the public would have no protection at all. A man could go on and innocently infringe during that year, and the only protection this section gives him is that he would not be sued until after the end of the year, but when sued the action would be retroactive; and that amendment ought to go in to perfect the section.

Section 18 relates to the duration of copyright. Gentlemen, that is a topic to which I have given great consideration, and I can do no more than state my opinion. I should like to elaborate it, but what I would recommend the committee to adopt on that subject is this very short provision: That the copyrights secured by this act shall endure for a hundred years in the case of an original book or dramatic or musical composition (one hundred years, Mr. Herbert, I liberally advocate in your behalf) and for fifty years in every other case.

I am totally opposed to any law providing for the extension of any copyright or any patent. The public ought to know, when the copyright comes out and when the patent comes out, exactly when it is going to expire; and it ought not to be made contingent upon anything so uncertain as human life. On the other hand, there is every reason in favor of giving the copyrighter a very long period of monopoly. Seventeen years is long enough for the patentee. I am a patentee myself. I would be very glad indeed to have Congress extend some of my patents, but I have not the effrontery to ask Congress to do it, because I do not deserve it.

Mr. Currier. Do you think a hundred years is a limited time within the meaning of the Constitution?

Mr. Walker. Oh, yes; certainly. A thousand would be. [Laughter.] And I wish to make this suggestion: It was suggested to me that the word "limited" meant definitely limited, and that therefore Congress would not be conforming to the Constitution if it made the period dependent upon any uncertain contingency. Now there is some force in that.

Mr. Sulzer. I agree with you, Mr. Walker, upon making the number of years definite; whether you make the years few or many, make them definite. Now, right there, without any intention to be facetious, do you not think that fifty years is sufficient?

Mr. Walker. No; and I will tell you why. Harriet Beecher Stowe wrote "Uncle Tom's Cabin" in 1853. She got a copyright on it for twenty-eight years, then an extension of fourteen years, and at the end of that time, in 1895, the copyright expired. Harriet Beecher Stowe then was dead—died in 1896—but she left two maiden daughters; and it would be a comfort to me, and it would be a comfort to all those who honor the memory of Harriet Beecher Stowe, if those two ladies could now be in the receipt of some royalty from "Uncle Tom's Cabin," which they can not be.

Mr. Sulzer. Is there any government that grants a patent or copyright for more than fifty years that you know of?

Mr. Walker. Not that I know of. Fifty years would be altogether excessive for any patent. The longest period that could possibly be vindicated by argument for a patent would be twenty years.

Mr. Bonynge. How about copyright?

Mr. Walker. I wish I could argue the matter; but I hold that all original works ought to be copyrighted for a hundred years, and all derivative works, such as dictionaries and encyclopedias, for fifty.

Mr. Bonynge. What is the longest period granted by any government, that you recall, for a copyright?

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

Mr. Sulzer. Fifty years?

Mr. Walker. The nations are numerous.

Now, I must come to another point, section 23, in respect of the damages that may be recovered. Section 23 begins as follows:

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—

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—

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—

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:

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—

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:

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:

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:

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 opens the door wide to fraud, because hardly anything is easier than to get a notary public to certify that one document is a copy of another, particularly where he is acting in a capacity outside of his office, and therefore would not be liable for any inconvenience or penalty if the certificate should turn out to be false. So here is a proposition to make the ownership of a copyright depend upon the record in the copyright office of an alleged copy of an assignment, which alleged copy may be fraudulent, and if fraudulent then resulting in no punishment to the wrongdoer.

Mr. Chaney. You would confine that to some other official, then; would you?

Mr. Walker. No; I would take it out altogether, and leave it as in patent cases—that only originals are entitled to be recorded. Such a thing as allowing a copy of an assignment of a patent or a copyright to be recorded in the place of the original is entirely unknown, and it would open the door widely to fraud.

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

Mr. Walker. Yes. I wish to express my thanks to the committee for hearing me so long and so patiently, and to express my best wishes for the future of the bill, and my own entire willingness to contribute, if I am found to be competent to contribute, to the perfection of the bill hereafter.

Senator Smoot. Mr. Walker, I have been wondering, for the hour that you have been delivering your intelligent speech here, on what basis your congratulations were extended to Mr. Putnam and other persons who took part in the preparation of this bill. [Laughter.]

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

Mr. Putnam. I can say, Senator, It is because they have had the benefit of such lucid criticism at such an early stage. I can say that it was not expected by us that anyone would take up this bill with such a penetrating intelligence as Mr. Walker has shown, within a week after its introduction into Congress.

Mr. Walker. And I wish to say to the Senator from Utah, if I may be permitted, that while I have criticized this bill in plain terms, the framework of the bill as a whole is very scientific, and in one day or two days I could so amend the bill as to entirely remove all my objections and still preserve the substance of the scheme which Mr. Putnam has put upon paper.

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

Mr. Sulzer. Mr. Chairman, I agree with the Senator from Utah; I have been very much interested in what Mr. Walker has said, and I was going to make this suggestion: That he be allowed to file a brief with the committee, which will be printed in the record as a part of the record.

The Chairman. That was understood the other day.

Mr. Walker. Thank you very much.

Mr. Sulzer. Mr. Chairman, I would be glad to have the committee hear now Mr. Nathan Burkan, who represents the publishers and composers of music.

Mr. Currier. Mr. Sulzer, two gentlemen who are now present have come all the way from Chicago to address the committee and have just this moment gotten here.

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

Mr. Currier. We will hear him later.

Mr. Putnam. Mr. Chairman, you have requested me to remind the gentlemen present that it is the desire of the committee to have a register of the names of all who have attended these hearings, and the capacity (if they desire to indicate it) in which they have been here. Some of you who were not here before will find opportunity to register at the door, and I would suggest that as the register was not opened until Thursday, any of you who know of any persons present on Wednesday who had left by Thursday, and whose names therefore did not appear upon the register, will please pass a memorandum of their names in to us.

Mr. Chairman, I have a memorandum handed in which I offer to the committee on behalf of Mr. Charles W. Ames, calling attention to a misunderstanding, as he has believed, of two sections, section 3 and section 19, and another communication simply filing objections to certain sections, 13, 18, 32, 33, and 34, and desiring an opportunity later to be heard.

The Chairman. They will go in the record.

(The papers above referred to, together with a letter from Mr. Leo Feist, were directed to be made part of the record, and are as follows:)

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.

STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL.

The Chairman. Whom do you represent?

Mr. Burton. I speak for the manufacturers of the perforated rolls and automatic instruments.

The Chairman. How much time do you wish?

Mr. Burton. I do not know how much time the committee has at its disposal nor what has transpired. It may appear that some of the points on which I wish to speak have already been handled, and if I am informed of that as I touch them I will not take up further time with them. As I say, I speak for the manufacturers of perforated rolls and automatic instruments.

The Chairman. We have had several speakers on that subject.

Mr. Burton. I understand that some points have been presented.

The Chairman. Perhaps it would answer your purpose to be permitted to see what they have said and supply in writing any additions you may desire to make.

Mr. Burton. I should be very glad to do so. I have been obliged to come here on the shortest possible notice. I left my desk with my mail half opened and jumped for a train upon a telegraphic request to be here, and have only had that much time to determine just the form in which I would like to present what I have to say. But I could give you in ten minutes, probably, the results which, it seems to me, the bill should accomplish, and if I touch on points that have already been discussed it will not be necessary to speak further on them.

The Chairman. You may have ten minutes.

Mr. Burton. But I would like to take advantage of the permission to file a full brief, giving my suggestions in detail as to the changes which, it seems to me, ought to be made in the bill.

Mr. Chaney. Of course we want that, Mr. Burton. We think that will be more valuable to the committee than a speech.

Mr. Burton. That is what I wanted to present, and if I had had time I should have been glad to have brought it in that form here.

I want to say first that it seems to me that while the bill follows the previous statutes in general in respect to copyrights, in the point I am going to speak of it ought to be amended. The practice in respect of patents is that the inventor shall verify his inventorship; he shall make oath that he believes himself to be the inventor, and any rights that pass to an assignee of the inventor must pass by an instrument which can be placed of record, signed by the inventor. But on the contrary, in the case of copyrights, in order to obtain a copyright the person claiming as the proprietor has merely to come in and make the claim as proprietor. He does not even have to verify that; and thereupon this bill expressly provides that he has a prima facie title to the copyright thus obtained.

It seems to me that that opens the door, as it always has—there is nothing new in this bill in that respect—to a large amount of fraud upon the author or whoever is the one in whom the right originates. I think, therefore, that when the bill is made up it should require the author to verify his authorship. The bill should provide that the application for registration should be accompanied by an affidavit of authorship, and if application is made on behalf of an assignee as proprietor there should be an instrument conveying the right from the person who originates it, namely, the author, accompanying the petition. It seems to me that no hardship can arise from requiring this of an author and the assignee of an author, as it is required of an inventor and the assignee of an inventor.

The bill provides that there shall be a very careful prima facie case made by affidavit as to the printing and preparation of the mechanical material for publication in order to come within the statute. All that must be verified, but the fundamental authorship requisite goes upon a mere assertion, without even the verification of an oath of the party claiming. A change should be made in that respect.

Then, furthermore, with regard to the right respecting perforated rolls, in respect of which I am speaking particularly, I think the right should be entirely distinct and separate from the fundamental copyright, the copyright of the "work," using the term that has been used; that the right to the perforated roll or whatever other form of mechanical reproduction is claimed should be based upon the filing of a copy of that perforated roll; that the filing of the copy of the original work should carry the copyright in the common sense of the word, but if the author desires to claim copyright in a perforated roll on his work, for that purpose, if you please to put it so, he should take it for that purpose, and make his claim of copyright upon that roll. If he wishes it in any other form of reproduction, such as the disk of the talking machine, he should file that; and I think that right should be entirely separate from the right which might pass by an assignment of the copyright. The publisher who may acquire the copyright on the work from the author should not, without express conveyance (although the same person might acquire both) acquire the right to control the perforated roll or the phonograph record or the talking-machine disk; they should be entirely separate.

The bill does provide that these shall be regarded as separate estates; but in view of the decisions in which a similar phrase is used, it is clear to me that that means that when the copyright has been obtained by the one proceeding provided for here, all these elements of it are separate estates which might be passed by separate assignments, but they would all be contained in the one copyright. I think that is wrong. I think that the right for the perforated roll should be acquired by filing a copy of that roll, in order that the public may know just exactly what is claimed, and whether it is claimed or not, and whether it is to be utilized.

Furthermore, I think that is a right that is naturally distinct from the other. It is a right that goes into manufacture instead of into publication. It is not to be done by the same people, naturally. The manufacturer, having a factory, makes the perforated roll. The publisher makes the books in an entirely different way. The two things are like different lines of trade. They are not naturally blended, either in use or sale. And therefore the composer or author, whichever it be, a work of words or of music, should be entitled to handle it entirely himself, apart from any right that he may have passed to the publisher by the transfer of his copyright.

I think I overheard as I came in a remark indicating that the next point I desire to press has already been suggested. In section 3 of the bill as I read it, as it stands now, there is a provision which would make it possible (and the committee will interrupt me if it has already been discussed, for in that event I should not wish to spend any time upon it) for the owners of copyrights of existing music to simply refile that music for copyright under this statute, and publish it with the mark that is required by this bill, and thereupon all that was contained in the previous copyright that is contained in that refiled and recopyrighted matter would come under this act, with all the privileges that this act gives over former copyright acts.

For example, this very matter of the right to mechanically reproduce would attach to a piece of music which had been previously copyrighted and of which a copy is now filed under this statute, and all the privileges of the bill except the longer term would attach to old copyrighted music which is simply refiled. So it would be possible to make the provisions of this act retroactive, so that the publishers, upon taking this proceeding, for 50 cents, with all their copyrighted music, would immediately cause the loss of the millions of dollars that have been invested in those rolls.

Mr. Currier. That has been discussed by several gentlemen, and objection taken to it—the same objection you are discussing now.

Mr. Burton. Very well; I will not talk of that.

Mr. Chaney. His point is that he would let the copyright go to each one of these interests, as I understand it.

Mr. Currier. That is on another point, however. He is speaking about section 3 now, in reference to subsisting copyrights.

Mr. Burton. In section 3 there is a provision which ought to be changed to prevent the subsisting copyright from carrying over these provisions into the new——

Mr. Currier. That has been discussed by several gentlemen.

Mr. Burton. Then if you are not going to make it retroactive—I judge the committee is clear upon that point—so as to bring under a copyright and make infringements all these outstanding millions of rolls, the question next should be, Should it be possible for the composer, by copyrighting now his perforated roll or taking any steps under this statute, to have the right from this time on to control the cutting of music which has heretofore been cut?

That strikes one at once with a little semblance of justice; but the injustice of that proposition consists in this: That for every piece of music which has been cut by a manufacturer, that has been lawfully cut under the present decisions, where he has a perfect right to do it, he has been obliged to expend from $10 to $25. He has that much investment lying under this music that is out in the market. Now, if it is not reasonable that all this outstanding music, lawfully made and lawfully sold, should become outlawed by a new act, is it reasonable that all this provision for making that investment, which amounts to millions of dollars, in the preparation for cutting this music, should become outlawed immediately, so that no more compensation can come to this manufacturer who has this $25 or this $10 invested in each piece, and say to him: "You can not use that music; you can not cut any more of that music?" Is it reasonable that that investment should be killed—that that investment, lawfully made, in a lawful product, should become immediately unlawful and waste paper?

Mr. Webb. What section has that effect?

Mr. Burton. I do not say the bill would certainly have that effect. It is entirely uncertain, but it seems to me the bill would have the effect, as I read it, of permitting the composer to claim the rights except as to outstanding music—that is, the right from this time on to cut it. The bill should be clear. I have had only a very short time to examine it, and a provision may possibly lurk somewhere under which the continued production of perforated rolls now being produced would be permitted, but I think not. I think it is possible, or might be held possible, under the bill for the composer to claim the rights from this time on to cut the music.

Mr. Currier. Oh, very clearly so; he can sell that right.

Mr. Burton. If that is the case, it seems to me unjust.

Mr. Campbell. Where the copyright has run out?

Mr. Currier. No; for copyrights taken out after the passage of this bill.

Mr. Burton. I am talking about the music that is now on the market, not the rolls, but the means of cutting them—whether the composer can, under this bill, acquire the right to stop the cutting from now on of that music.

Mr. Currier. I do not think you need to take any time with that proposition.

Mr. Burton. If that is clear, I will pass it. It seems to me the bill gives it; but if you make it entirely clear that it does not——

Mr. Currier. It is not the purpose of the committee, I judge, to allow that. Your time has expired.

Mr. Burton. Then I will ask leave to file a complete brief suggesting changes.

Mr. Currier. And I might say to you what has been said to others here—that neither the Senate nor the House committee will take any action on this bill at this session. It will go over until next winter, and at any time before action is taken you can file any further brief or any further suggestions with the committee.

Mr. Burton. I thank the committee on behalf of the interests I represent.

STATEMENT OF NATHAN BURKAN, ESQ., OF NEW YORK CITY.

Mr. Burkan. Gentlemen, there has been a great deal said here about this "monopoly," this great "music trust," that intends to——

Mr. Chaney. You are a publisher, are you?

Mr. Burkan. I represent the Music Publishers' Association. This combination between the Music Publishers' Association and the Æolian Company, the purpose of which is to destroy the independent manufacturers of perforated rolls, cylinders, and disks adapted to reproduce musical sounds.

I think we should at this time refer to the history of this alleged contract between Æolian Company and some of the publishers. A number of years ago an action was brought in the circuit court of Massachusetts to restrain the manufacture and sale of perforated rolls on the ground that such perforated rolls infringed the complainant's copyright on his musical composition. The case was argued before Judge Colt, and he decided that a perforated roll was not a copy of a sheet of music, and therefore not an infringement of the copyright. (Kennedy v. McTammany, 33 Fed. Rep., 584.) A number of years thereafter another action was begun in the District of Columbia, the case of Stern v. Rosey, to restrain the manufacture of cylinders and disks adapted to reproduce musical sounds—applying particularly to talking machines. That court decided against the publisher. Thereafter these companies grew up, one after another, and manufactured rolls, disks, and cylinders, and appropriated for use upon these devices the property of the composer, for which he did not receive a dollar.

The Æolian Company, the pioneer in this line of industry, became a very large concern, investing millions of dollars in the establishment of a plant and in the manufacture of these rolls. They knew, or were advised by counsel, that this question, whether a perforated roll adapted to reproduce a copyrighted musical composition was not a "copy" of the composition within the meaning of the copyright law, was uncertain; it had never been decided by any appellate court. And it was very essential for the welfare of the company, and for the protection of its interests, to ascertain whether in fact it was infringing upon a copyright every time it made or sold a roll.

The Acting Chairman. Do you represent the Æolian Company?

Mr. Burkan. No, sir; I do not. I have no interest in the Æolian Company. I never appeared in any action for it, am not appearing for it now, and do not expect and will not receive or accept any compensation for my services here. I represent the music publishers, and I am a friend of Mr. Victor Herbert.

I desire to reiterate that the Æolian Company was advised by able counsel that there was some doubt about this proposition. The Æolian Company, to protect its property, and in order to settle this question once for all, sent its agents to several publishers who stated to them: "Gentlemen, we have sought legal counsel—the ablest that we could find in the city of New York—who advise us that there is grave doubt as to whether the manufacture by us of these perforated sheets do not infringe your copyrights, and that question ought to be determined by the highest court or the land."

No single publisher, gentlemen, had sufficient funds to carry on such an expensive litigation, because these music publishers are not the millionaires that our friends on the other side have attempted to point out and show. Most of them are poor men. No single composer would be able to supply the funds to carry on such a litigation. There was a great deal involved; and when this company came and said: "Gentlemen, we will take up this litigation; we will try to establish your rights; but for our trouble, if we do establish your rights, if we can get the highest court in the land to decide that the present copyright laws are applicable to these perforated sheets, then we want the exclusive rights to manufacture perforated rolls adapted to reproduce your music upon specified royalties for a number of years."

Was there anything inherently wrong in that? A number of publishers naturally jumped at that offer. It would mean to a large publisher thousands of dollars if the courts decided in his favor. At the time when this offer was made, the perforated roll companies were appropriating his copyrighted music for which he received not a single penny. And the contract that was entered into between the Æolian Company and some of the publishers, a copy of which was offered in evidence here, provides that the consideration for this agreement was this litigation. Nothing was concealed; everything in connection with this contract was done in the open, and the consideration for the contract is expressed in the contract as follows:

These gentlemen, the publishers who made this contract, did not have in mind the creation of a monopoly. Each publisher, naturally, as any other business man, wanted to get something for his property, and it was very advantageous to the publisher to get the highest court to decide in his favor, without paying the enormous expense of such a litigation. Mr. Davis, the inventor of these perforated rolls, properly said—he said it truthfully and honestly—"My invention depends upon Mr. Sousa and Mr. Herbert and their compositions." The music of these gentlemen is a component part of my invention.

The Acting Chairman. The Æolian Company, as the law stood, did not have to pay to musical publishers a cent?

Mr. Burkan. Not a cent.

The Acting Chairman. What was their object in getting a decision of the court which would force them to pay large sums to the musical publishers?

Mr. Burkan. They are the largest manufacturers of these rolls in the world. They have manufactured thousands and thousands of these rolls representing the best copyrighted compositions. Suppose a large number of publishers or a number of public-spirited men had gotten together a fund, and suppose a case to test the applicability of the present copyright laws to perforated rolls had been carried to the highest court and won—then the Æolian Company would have been obliged to account for all its profits on these perforated rolls to the publisher, and would have been obliged to pay Mr. Herbert, Mr. Sousa, Mr. Chadwick, Mr. Damrosch, and other composers thousands of dollars in back royalties; whereas under this agreement the Æolian Company protected itself, because the publisher who signed it consented to the use of his composition for the perforated rolls, and he would have been estopped under such agreement from suing for an accounting of profits.

The Acting Chairman. Yes; but the Æolian Company originated this litigation.

Mr. Burkan. Yes—very true, sir; very true. The Æolian Company (and I do not appear in this matter as its champion at all) had spent thousands of dollars to improve and protect its patents to these perforated rolls. It employs the most skillful and talented arrangers to arrange and edit these compositions embodied in the roll, so that when you purchase an Æolian record or roll and pay your $2.50, or whatever the price may be, you get a roll when used in connection with the playing instrument which gives an exact reproduction of the music as written by the composer, say, by Mr. Nevins, Mr. Chadwick, or Mr. Foote. There were a small number of companies that also sold perforated rolls, but instead of the rolls producing exact reproductions of the music they gave distorted and feeble imitations or versions of that music. They did not give to the public what the public was bargaining for, and instead of creating a taste and demand for this form of reproduction of music, the tendency was to destroy the taste and lessen the demand; and the result was not only to destroy this great industry, of which the Æolian Company was the pioneer and in which it was vitally interested, but also to injure the composer whose work was thus reproduced.

There is an artistic side to this question, sir. If you made a speech in Congress, Mr. Chairman, and I should get someone else to repeat your speech into a machine, and your speech lasted fifteen minutes, but in order to crowd it into a cylinder that is adapted to reproduce a speech of two minutes' duration, I should cut, distort, and disfigure it, and then it was reproduced to the public all over the land and sold as Mr. Currier's speech, you naturally would be offended. That is the artistic side of this case.

Mr. Webb. You would have no right to represent it as his voice, his work.

Mr. Burkan. That is what they are doing—representing it as his, the composer's work, and Mr. Herbert's work is judged by the reproduction of it by these mechanical devices. The public says, "That is Victor Herbert's composition," or "That is Mr. Chadwick's composition." And I want to say to the gentlemen here that this proposed law does not only cover music, but it covers poems, speeches, and stories.

Now, then, some of these men made this contract. This contract is solely dependent upon the decision of the Supreme Court. It is not dependent upon any legislation at all, and the Æolian Company took absolutely no part in this legislation. The Music Publishers' Association received an invitation from Mr. Putnam to appear at the conferences, and we appeared, and we naturally were interested in getting this legislation. But I say this——

Mr. Cromelin. Mr. Chairman, may I interrupt one moment?

Mr. Cromelin. May I deny that?

The Acting Chairman. You will suspend.

Mr. Burkan. The Æolian Company took absolutely no part, had nothing whatever to do with this legislation at all. And I say to you, sir, that if the purpose of these contracts is to stifle competition and to control the industry of making perforated rolls and talking-machine cylinders, then the Sherman Act covers contracts of this kind. I say to you that the Donnelly Act or antitrust law in our State (New York) is very stringent; if it should appear to Mr. Jerome or to the attorney-general of New York, in which State the Æolian Company has its principal place of business, that these contracts tend to stifle trade, or were entered into to destroy competition, each one of these conspirators could be sent to jail, and could be restrained by injunction from enforcing the contracts. We have antitrust laws, sir; and under those laws each of these men could be restrained by injunction from enforcing the contract and criminally punished for entering into it.

The Acting Chairman. Your time has expired. Mr. Cromelin, you may have one minute to contradict any statement he has made.

Mr. Cromelin. Mr. Chairman, just one minute. Just before leaving New York Saturday I spoke with the manager of the Æolian Company, and I wish this to go on record—that he told me that they did not want to oppose this legislation; that they had contracts; and when people have contracts of this kind they do not go to the house tops and proclaim the fact. The only reason you know of this contract, sir, is because it is a matter of record in the case of the Apollo Company in the second circuit of New York.

Mr. Chaney. Do you mean to say that this contract is an improper one to make?

Mr. Cromelin. Not at all; I did not say that, sir.

Mr. Chaney. Then what concern is it to us, who are engaged in framing this bill, about that contract?

Mr. Cromelin. The chairman asked the gentleman whether the Æolian Company was interested in this——

Mr. Burkan. Absolutely not.

Mr. Cromelin. And the manager of the company told me that they were.

The Acting Chairman. It might occur to some members of this committee that if one concern was to get an absolute monopoly of making perforated rolls or musical disks, it did concern this committee.

Mr. Burkan. Can I say a word, sir, on that point? There are hundreds of publishers, sir—hundreds of publishers who are under no contract with the Æolian Company; there are hundreds of composers who are under no contract with this company. You are legislating for the future, and it seems unfair that hundreds of publishers and composers, not parties to this agreement, should be punished because a number of publishers, 10 or 20, have made an unlawful agreement. That is the question that you must consider in connection with this "monopoly" charge.

Mr. Webb. Now, you are a lawyer?

Mr. Burkan. Yes, sir.

Mr. Webb. May I ask you your opinion as to whether or not the word "writings," referred to in article 8 of the Constitution covers these rolls?

Mr. Burkan. Yes, sir; yes, sir. If you will just allow me three minutes——

The Acting Chairman. No; answer the question. I can not allow you three minutes, because we shall have to go over to the House. The hearings will be closed right here, as soon as you answer that question.

Mr. Burkan. In the circuit court of appeals, White-Smith Company v. Apollo Company case, the court said in a decision involving the question as to whether a perforated roll is an infringement of the copyrighted work which it is adapted to reproduce, and it is important in connection with the claim that Congress has no power to enact this legislation——

The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant.

This language of the court is in itself, without further argument on the definition of the word "writings," sufficient warrant and authority for the Congress to enact this legislation.

(The hearings were thereupon announced closed.)

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