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. (continued 3)

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

Mr. Hill. There is very little that I need to say. The paragraph relating to the copyright respecting the libraries has been taken up very carefully by the executive board and the council and by the delegates, and we are satisfied as an association with the draft as submitted, and, personally, I approve of the change which has been agreed to this morning between the publishers and the delegates. That related to the additional proviso that they should not be prohibited from importing foreign editions in these exceptional cases, where they could not get the American edition.

I think it is only fair to state, Mr. Librarian, that while the executive board and the council of the American Library Association have both voted for the adoption of this draft there will be individual opposition. There are some librarians and some libraries that are opposed to any change in any part of the law which affects importation, and so have reserved the right to oppose that part of the bill. I think it is due to you that such statement may be made, so that you may know the individual opinion as well as the general one.

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

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

The New Willard, Washington, D.C., June 7, 1906.

To the honorable Joint Committee of the Senate and House of Representatives.

Gentlemen: Referring to the proposed bill to amend and consolidate the acts respecting copyright, now before the committee, I would propose the following amendments:

Amend section 3 (p. 3, line 8) by adding continuously at the end of said section the following:

"And provided, That no devices, contrivances, or appliances, or dies, or matrices for making the same, such as referred to in clause (g), section 1, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright."

Amend section 5 (p. 4, lines 2 to 3) by adding, between lines 2 and 3, before the word "photographs," the following: "(j) talking-machine records."

Amend section 18, clause (b) (p. 14, line 14), by adding, between the word "composition" and the word "any," the words "any talking-machine record;"

Amend section 23 by striking out from the clause marked "First" (p. 17, lines 18 to 20) the following: "or any device especially adapted to reproduce to the ear any copyrighted work."

Amend section 23 by inserting in the clause marked "Fourth" (p. 18, line 4), between the words "of" and "all," the following: "any device, contrivance, or appliance mentioned in section 1, clause (g) and".

Hoping that these proposed amendments will meet with the approval of the committee, I remain,

Yours, very respectfully,

Horace Pettit, For Victor Talking Machine Company.

Jos. W. Stern & Co., Music Publishers, New York, June 5, 1906.

Dr. D. P. Lewandowski, Care of Raleigh Hotel, Washington, D.C.

My Dear Doctor: We herewith authorize you to represent us and speak in favor of the copyright bill at the meeting of the committee. Honorable Senator Kittredge, or any other honorable gentleman who will do anything to further the passage of this bill, will earn our everlasting gratitude and will be working for the advancement of an industry which has been sorely oppressed by piracy and injustice.

There is an excellent opportunity now to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government.

With best wishes, we remain,

Yours, very sincerely,

Jos. W. Stern & Co.

To the Committee of the Senate on Patents, Senator Alfred B. Kittredge, of South Dakota, Chairman.

Gentlemen: I appear before you this morning in the name and as the representative of the firm of Jos. W. Stern & Co., music publishers, of New York, and in their behalf I wish to state that the bill on copyrights S. 6330, to amend and consolidate the acts representing copyrights, which is before you this morning, is of the highest importance, for the protection of the authors and composers and music publishers, to protect their copyrights.

The old law is very vague and unsatisfactory. The proposed new law would help music publishers and composers very much.

There has been a great deal of piracy going on and their best "hits" have been copied and pirated.

The new law makes such piracy a criminal offense, punishable by fine or a year imprisonment. If passed, as we hereby most humbly pray that it should be so, it will punish the pirates, because the fine alone can not stop their unjust deeds, and they laugh and pay their fine, but a year of imprisonment will certainly change all for the best. The said pirate would not risk a year of prison at all times.

Then again, the new law provides that no phonograph company or any makers of musical instruments, as well as makers of self-playing pianos, can deliberately use the work of the brain of the composer as well as the property of the publisher without permission to do so or paying some remuneration for the same.

Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it.

Along comes the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for the said publisher's or composer's rights.

They sell thousands and thousands of the "hits" of the publisher, which he has worked hard to make, without paying, as stated before, a cent of royalty for them.

The new law proposed remedies this, but of course the phonographic companies are fighting the new bill tooth and nail.

In this brief outline I shall include another important statement to show how much work, and anxiety of the brain a composer must use to write something in poetry or music, and what anxiety and worry he endures until the said "hit" is an accomplished fact. Sometimes his entire family depends upon the publishing of this brain work, and when it is accepted and the publisher issues the same for the public's appreciation, behold, in the next few days every sort of instrument is playing this man's composition.

I for one have suffered this injustice and piracy. Therefore I feel how dreadful it is in general to suffer and to be deprived of remuneration for the just and intelligent inventive brain work which a man produces by his genius.

This is, gentlemen, an excellent opportunity to show fair play to a body of citizens who have been working at a disadvantage and fighting for years for their just rights and for proper and adequate protection from the Government. I conclude by appealing most earnestly and respectfully to the honorable gentlemen of the committee to do their utmost to forward the passage of this bill, and I am convinced that they will earn everlasting thanks and gratitude for creating a law which will earn for them recognition and will carry their name to history for having worked for the advancement of an industry which has been sorely oppressed by piracy and injustice.

Believing that my most humble indorsement of this new law and the desire of the firm of Jos. W. Stern & Co., who have authorized me to address this body in their behalf, will soon be upon the statute books protecting copyright, I have the honor to remain,

Very respectfully, yours,

D. P. Lewandowski, M.D.

34 East Twenty-first Street, New York City.

A. W. Elson & Co., Educational Art Publishers, Boston, June 5, 1906.

Herbert Putnam, Esq., Librarian of Congress, Washington, D.C.

Dear Sir: As I do not expect to be able to be present at the first hearing of the copyright bill which is now introduced in Congress, I write to ask whether the suggestions that are made on the accompanying sheet can be placed in the hands of the committee.

I should like to appear in favor of these suggestions at any subsequent hearing that may be given by the committee on the bill.

I have arranged the suggestions in the order of importance from my own particular standpoint.

As this may reach you during or after the hearing before the joint committee of the Senate and the House, I have mailed a duplicate of this to the chairman of the committee.

Very truly, yours,

A. W. Elson.

Suggestions of additions and amendments to the copyright bill introduced before Congress May 31, 1906, entitled "A bill to amend and consolidate the acts respecting copyright."

Section 5 (subsection J).—That the words "and negatives" be added after the word "photographs," so that subsection J shall read: "Photographs and negatives."

Negatives are made the subject of copyright under the present copyright law, and there seems to be no valid reason why they should be omitted in the new copyright statute. It would very much simplify the copyrighting of all photographic reproductions if negatives were made the subject of copyright, and for the purpose of registration two prints of the negative copyrighted should be filed in the copyright office. I would therefore suggest that the following words be added to section 11, seventh line, after the word "edition," "or if the work be a negative, two prints made directly from it."

Section 13.—In this section typesetting and the lithographic process are singled out from all other processes connected with the manufacture of printed books, and given distinct protection from foreign competition over all other processes in making books that are copyrightable in the United States. Any such discrimination is unjust, and if this section is retained, the protection should be broadened to include any other processes besides lithography.

I would therefore suggest that section 13 be amended as follows: After the words "lithographic process," in the seventh line, and after the same words on page 6, first line, nineteenth line, and thirtieth line, there be inserted the words "or any other process or method," and after the words "a process," in the same line, the words "or method."

That the word "lithographs" in the second and third lines of the same page be erased, and the word "illustrations" be inserted in place of it; and on the same page, in the third line of that portion of section 13 on that page that the words "where" and "either" be erased. My preference would be to see the whole section dropped out, but failing in this no undue preference should be shown any one or two methods connected with the manufacture of books.

Section 39.—In its present form could be made clearer if it is intended to secure to an author of an original work of the fine arts any copyright which he may have obtained under the statutes on his work. On the other hand, if the section is intended to secure to an author or artist any potential copyright in a work on which he had not duly secured statutory copyright, then such provision, it would seem, would be unreasonable and unjust to the purchaser of the work; and I would therefore suggest the following wording for this section: "The author of any original work of the fine arts being the owner of such a work and having copyrighted it according to the provisions of this act or any previous United States copyright act, and who has marked upon such original work such notice of copyright as may be required by the act under which the work was copyrighted, shall not be deemed to sell or transfer said copyright upon selling or transferring the original work of art unless an agreement in writing covering the transfer of said copyright be signed by the author."

Section 37.—Is open to the same criticism as section 39. It might be corrected by the following changes, viz: That in the third and fourth lines the words "which is the subject of copyright" be struck out and the word "copyrighted" substituted for them.

Section 8.—In providing the conditions under which a foreign author or proprietor of any work may obtain copyright on such work within the United States, section 8 grants certain privileges to a foreign proprietor which are not granted to an American proprietor of a foreign work; as, for example, an American proprietor of a foreign painting who desired to copy and publish it in this country.

I would therefore suggest that section 8 after the words "provided, however" in the fifth line and through subsection (a) read as follows: "That copyright secured by this act shall extend to the work of an author who is a citizen or subject of a foreign state or nation only when such author or the proprietor of the work (a) shall be living within the United States at the time of the making and first publication of the work or shall contemporaneously with publication in some foreign country publish the work within the limits of the United States."

A. W. Elson, 146 Oliver street, Boston.

New York, June 4, 1906.

Herbert Putnam, Esq., Librarian of Congress, Washington, D.C.

Dear Mr. Putnam: I regret to find myself, after the strain of breaking up my home, totally unable to attend the meeting of the Senate and House committees on the 6th. In fact, it is out of my power to go to Washington this week for either the formal or the informal discussions.

It seems to me that my time of active work, relative to copyright, is about ended; and possibly I ought to resign from the presidency of the American Copyright League. I am no longer the president of the National Institute of Arts and Letters, Professor Sloane having become my successor. I think the later draft of your bill is in excellent shape as a basis for consideration by the joint committee.

Respectfully, yours,

Edmund C. Stedman.

Leo Feist, Music Publisher, New York, June 1, 1906.

Hon. Herbert Putnam, Librarian of Congress, Washington, D.C.

Dear Sir: Very many thanks for your courteous communication of the 29th instant, and I assure you that I appreciate the compliment paid in the sending thereof.

If all is well, Mr. Witmark and myself will be at the conference.

Earnestly hoping that the bill will be passed in its present perfect form, believe me,

Very truly, yours,

Leo Feist.

Wilcox & Bull, Counselors at Law, Buffalo, N.Y., June 5, 1906.

Hon. Herbert Putnam, Library of Congress, Washington, D.C.

My Dear Mr. Putnam: I beg to acknowledge, with thanks, various circulars and documents relating to the new copyright bill, including the proof copy of the bill as printed May 19, and the printed copy of the bill as introduced May 31, with notices of the first hearing before the joint committees of the Senate and House, on Wednesday, June 6, at the Library building, and of the preliminary conference to be held to-day, all of which have had my careful attention.

I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it, and particularly of yourself and Mr. Solberg. I am proud to have had any share, however slight, in outlining it, and shall be glad to take part as actively as possible in urging it upon Congress and commending it to the people at large.

As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.

The Consolidated Lithograph Company has suggested that I attend the hearing in Washington to-morrow. I should like to do this, at least for the purpose of showing the interest which we feel in the measure and to assist in impressing the committees of Congress with its importance, though I know that after this hearing the bill will simply lie over for further consideration and for action at the next session. But it seems impracticable for me to be in Washington to-morrow, and I think that I can be of more service at a later time, when I hope that the company will still be disposed to send me there.

Very truly, yours,

Ansley Wilcox.

P.S.—Will you please send me an extra copy of the bill, or two if you have them to spare?

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

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

Mr. Webb. What section?

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

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

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

Mr. Cutter. Yes, sir.

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

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

Mr. Currier. A fraudulent reprint, for instance?

Mr. Cutter. Yes, sir.

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

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

Mr. Currier. I was asking about existing law.

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

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

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

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

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

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

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

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

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

Mr. Cutter. I do.

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

Mr. Cutter. I do; yes, sir.

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

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

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

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

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

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

Mr. Cutter. Certainly.

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

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

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

Mr. Currier. Of the entire paragraph?

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

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

Mr. Chaney. Yes; precisely.

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

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

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

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

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

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

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

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

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

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

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

Those are the only arguments that I wish to present.

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

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

Mr. Chaney. Do you mean subsection E?

Mr. Cutter. Yes.

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

Mr. Chaney. Oh, I see.

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

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

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

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

Mr. Currier. Do you appear for the importers?

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

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

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

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

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

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

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

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

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

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

STATEMENT OF FANEUIL D. S. BETHUNE, ESQ.

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

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

Mr. Chaney. Whereabouts?

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

Mr. Chaney. I see.

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

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

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

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

Mr. Chaney. Where would you put it?

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

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

Mr. Bethune. It should be uncovered.

Mr. Putnam. Accessible and uncovered?

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

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

The Chairman. Has that been settled by the courts?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Chairman. Can you call attention to that section?

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

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

Mr. Bethune. Section 14.

Mr. McGavin. On page 10.

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

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

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

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

Mr. Bethune. Yes.

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

Mr. Bethune. No; I think not.

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Bethune. Section 25, sir?

Mr. Chaney. Yes.

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

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

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

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

Mr. Bethune. Yes.

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

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

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

Mr. Bethune. Those are the principal features——

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

Mr. Bethune. Precisely.

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

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

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

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

Senator Mallory. What is your suggestion?

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

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

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

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

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

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

Mr. Bethune. I think not, sir.

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

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

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

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

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

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

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

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

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

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

Mr. Bethune. No, sir.

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Bethune. Yes.

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

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

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

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

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

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

Senator Mallory. It held that that constituted publication?

Mr. Bethune. That that constituted publication.

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

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

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

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

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

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

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

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

Senator Mallory. Just express it in those words.

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

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

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

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

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

That is all we wish to say now.

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

Mr. Livingstone. Yes, sir.

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

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

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

Mr. Livingstone. Yes, sir.

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

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

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

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

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

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

Mr. Webb. It would still be uncovered.

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

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

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

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

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

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

I take this opportunity to say that our association fully indorses the bill as presented to Congress, with the single exception of the final paragraph of section 13.

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

The Chairman. What reason is given for that request?

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

The Chairman. In what respect?

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

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

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

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

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

Mr. Currier. This bill.

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

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

Mr. Sullivan. I refer to the revised bill.

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

Mr. Sullivan. The Senate bill.

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

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

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

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

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

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

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

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

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

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

Mr. Currier. You refer to section 13?

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

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

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

The Chairman. Whom do you represent?

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

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

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

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

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

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

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

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

Mr. Cromelin. Thank you very much.

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

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

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

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

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

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

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

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

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

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

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

The Chairman. I think not.

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

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

Mr. Walker. That is very agreeable to me.

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

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

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

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

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

The Chairman. How many desire a hearing?

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

The Chairman. Does each want one hour?

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

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

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

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

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

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

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

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

Mr. Cromelin. I thank you very much.

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

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

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

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

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

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

Mr. Webb. The interests are about the same.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Chaney. Suppose we except those views?

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

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

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

Provided further, That only one registration at one fee shall be required in the case of several volumes of the same book or periodical deposited at the same time, or of a numbered series of any work specified in subsections H, J, K, and L of section 5 of this act—

Which includes our class of products—

where such series represents the same subject with variances only in pose or composition, and the items composing it are deposited at the same time under one title with a view to a single registration.

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

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

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

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

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

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

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

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

Mr. Remich. Yes.

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

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

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

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

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

The Chairman. Were you present at the hearing yesterday?

Mr. Remich. I was not present; no.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Remich. That is right.

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

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

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

Mr. Remich. That is about one-fifth.

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

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

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

The Chairman. Very well.

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

The Chairman. What are the expenses of the office?

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

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

The Chairman. Yes, sir.

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

Mr. Chaney. By how much?

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

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

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

The earned fees paid into the Treasury for the year ($78,518) exceeded the amount expended for salaries, which was $74,600.37. The additional expenditures during the year for stationery and other supplies can not at this date be obtained from the chief clerk of the Library, but for the first six months of the year they amounted to but $309.63, and the year's contingent expenditures, therefore, should be under $1,000. The yearly average for the last five years has been $954.29.

Then they say:

The appropriations for 1901, 1902, 1903, 1904, 1905, and the first half of the fiscal year 1906 include the sum of $25,740, to be used in bringing up the arrears of work prior to July 1, 1897, which amount should therefore be deducted from the total sum for appropriations for service as not properly a charge upon the current work of the office, leaving the excess of fees earned over appropriations used for service $125,675.39 for the eight and one-half years.

The copyright fees are not, however, the most valuable assets of the office. During the year the articles deposited and credited numbered 213,498 articles. This large deposit of books, periodicals, maps, music, engravings, photographs, etc., includes many articles of considerable value which the Library of Congress would otherwise be required to purchase, and these articles therefore represent an annual acquisition of property to the value of many thousands of dollars.

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

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

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

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

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

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

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

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

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

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

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

Mr. Remich. I can not tell.

Mr. Putnam. Have you any idea?

Mr. Remich. It varies with different years.

Mr. Putnam. Would it run up into thousands?

Mr. Remich. Some years I think it does.

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

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

Mr. Currier. Representing the same subject.

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

Mr. Remich. That depends upon what you call the same subject.

Mr. Currier. Is seems to me that you would have to introduce the word "general;" that is, make it read "the same general subject."

Mr. Remich. If you introduce that who will decide what is the same general subject, except the courts? It would encourage law suits.

The Chairman. It would be the Librarian, would it not?

Mr. Remich. His decision would not be final. The law says we can go to the courts and test his construction.

The Chairman. It would be the Librarian, so far as your fees were concerned?

Mr. Remich. Yes; but we do not want to pay a fee unless it is to be registered in such a way that the court will hold that we have a legal registration. We have an artist in San Francisco; and if we could register under one entry all the views that he will take in San Francisco while he is there, which will probably be 500 different subjects, for half a dollar, we would like to do it. But what subjects that he takes in San Francisco can we include as a series and have protected? He will take the Pacific Hotel, showing its ruin and present condition, and he may take a Chinese camp, and he may take the Flood Building, and so on. How many can we get into a series and have the court protect us when we come to try a case? That is the difficulty.