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 6)

For the same reasons lines 18 to 24 on page 17, and lines 1 to 7 on page 18, should be canceled.

Paragraph (c) on page 18 should be amended by striking out the word "alleged", in line 10, and inserting "shown to the satisfaction of the court."

Section 25 should be amended by inserting at the end of line 23 "and with intent to deprive the owner of the copyright of lawful profit."

The word "willfully" does not appear to make the section sufficiently clear, and it is submitted that an infringer should not be held guilty of a misdemeanor unless he have the intent specified in the suggested amendment.

After line 6 on page 19 the following words should be inserted:

"Provided, That any person who performs the alleged infringing acts under a mistake of fact or law shall not be deemed to be a willful infringer."

The alleged infringer may have good reason to think that conditions precedent have not been performed and that no valid copyright exists; he may be under a mistake as to when the term expires; he may be of the opinion that what he has produced is not a copy, and he may perform his alleged infringing acts under advice of counsel. It does not seem proper under such circumstances to hold him to be a willful infringer and guilty of a misdemeanor.

In line 14 of page 19, after "knowingly," the following words should be inserted: "and with fraudulent intent."

Page 20, line 9, before "publish," the following words should be inserted: "send notice of such seizure by registered mail to the person to whom the article seized is consigned or directed, and shall."

Section 27, line 24, after "first," there should be inserted the words "mailing or".

Section 29, lines 6 and 7, the words "supposed to contain" should be canceled, and the words "which contains" should be inserted. It is unreasonable to permit a postmaster to detain a package upon a mere supposition.

In line 9, before "mail," there should be inserted the word "registered."

Page 24, lines 16 and 17, the words "not more than one copy at one time" should be canceled, and in line 17 the word "or" changed to "and."

At the end of section 32 the following should be inserted:

"Provided, That the owner of the right to perform any copyrighted work by means of any automatic mechanical device shall not have the remedy by injunction herein provided until the amount of fair and reasonable royalty for such use shall have been ascertained by express contract between the parties, or by judgment of a court, and shall be due and not paid."

Section 35, line 8, the word "full" should be canceled; and in line 9, after "allowed," there should be inserted "according to the practice of law and equity."

In many cases it might be inequitable to allow costs, and the court should be left free to exercise its legal discretion.

Section 36, line 11, the word "common" should be inserted before the word "law." This section should be compared with section 2, and they should be consolidated, or preferably they should both be omitted as unnecessary and as being outside of the purview of this act.

Section 38, line 23, there should be inserted after the word "musical" the word "-dramatic."

Line 25, the word "make" should be canceled and there should be inserted the words "produce by."

It is evident that the right to make belongs to the patentee of the device.

Page 30, line 1, the words "ninety days" should be changed to "three months" as more convenient and as excluding any contention whether or not Sundays and holidays are included in the ninety days. The similar provision of the patent law reads "three months."

Section 44 should be amended by inserting after "assignment", in line 12, the words: "and index the same under the name of the person by whom the original entry of copyright was made."

Section 45 should be amended so that lines 21 to 23 shall read as follows: "signee shall in all cases give in the statutory notice of copyright prescribed by this act the name of the person by whom the original entry of the copyright was made."

Without this provision the public will be put to great inconvenience in finding the original entry on which the copyright depends. The copyright notice should be of a clear and specific character so as to cause the public as little inconvenience and uncertainty as possible.

Paragraph 52 should be amended by striking out "provided" and all thereafter to the end of the paragraph in lines 2 and 3 of page 33. This provision is altogether too broad and the courts should be left free to determine what are conditions precedent to a valid copyright and whether there has been any breach of them.

Section 54 should be amended by striking out the words "the date of the" and inserting "that the affidavit states the dates of;" and in line 20 cancel the words "as stated in the said affidavit," and insert the words "which dates shall be given in the certificate."

Section 55 provides for the destruction of card catalogues. The wisdom of this provision is very doubtful. A single card catalogue for each class of copyright work would save an immense amount of time and error to the public, and to the Librarian in making searches. Instead of periodically destroying card catalogues, they should be added to and preserved. As soon as they are destroyed, instead of being able to make one examination of one part of the card catalogue, the public will be compelled to examine a great number of periodically made printed indexes. I therefore suggest that the words "and thereupon", to and including the word "intervals," lines 9 to 12 of page 34, be canceled.

As to the destruction of articles provided for in section 59, I suggest that the section be amended by inserting in line 10 of page 36, after the word "provided," the words "and with the authorization of the Committees on Patents of the Senate and of the House of Representatives."

Section 63 should be amended by striking out the words "sold or placed on" in line 7, and by inserting "made public, or sold publicly or privately, or placed on public."

As to section 64, I have to suggest that the present bill is supposed to be what may be termed a codification of the copyright law; if so, section 4966 of the Revised Statutes has no proper place outside of this bill. If there is anything desirable in the section it should be embodied in the bill at the proper place, and in doing so it should be made plain that the word "musical" where it first occurs in section 4966 means "musical-dramatic," meaning thereby a composition which is dependent upon representation or performance in the dramatic sense.

I do not believe that the people of this country are aware of what the musical composers and publishers are attempting to do in the way of securing monopolies.

If the public were aware that these persons, after having secured copyrights giving them the exclusive right of copying and publishing music for sale, and after having sold the copies of such music are attempting to secure laws by which they may impose further taxes upon the public for the use of such music by singing or playing, and are seeking to provide fines and terms of imprisonment for those members of the public who do not pay the additional tax, there will be such a storm of protests before your committees as could not be disregarded.

Section 4966 of the Revised Statutes should be repealed altogether, and so far as its provisions appear in this bill they should be limited to musical-dramatic compositions, and the provisions for damages other than actual damages and for imprisonment should be absolutely eliminated.

Very respectfully,

H. N. Low.

The Acting Chairman. Now we will hear the gentleman who represents the talking machines.

STATEMENT OF S. T. CAMERON, ESQ., REPRESENTING THE AMERICAN GRAPHOPHONE COMPANY, OF NEW YORK CITY.

Mr. Cameron. Gentlemen, the first objection we have to the bill is, in our mind, the most serious one, and one which has been several times touched upon heretofore, so that I shall not attempt to go into any very great detail in discussing it here, but shall simply call attention to the fact that we object to it, and point out to you why, in connection with our particular business, it is especially important.

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

That the works for which copyright may be secured under this act shall include all the works of an author.

Our position is that this is in direct contravention of the Constitution. If you will substitute in that clause the word used by the Constitution, and say that the works for which copyright may be secured under this act shall include all the "writings" of an author, then we do not object to that section.

Now, if you will take certain other sections of this bill, with that change made in section 4, and attempt to read them, particularly where the word "reproduce" occurs, or the word "reproductions" occurs, you will see the importance of it to us.

Take, for example, section 3, immediately above:

That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof.

If you read that word "reproductions" with the word "works" in section 4 changed to "writings," reproduction means a very different thing.

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

Any arrangement or reproduction in some new form of a musical composition.

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

Any and all reproductions, or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting.

So that it does not go only to matter that is copyrighted subsequent to the passage of this act.

Mr. Webb. I was speaking particularly of section g. That was the section that the gentleman was objecting to, and I referred to that particular portion.

Mr. Cameron. The act, however, would apply by reason of section 3 to subsisting copyright.

Mr. Webb. Yes; that may be so.

Mr. Cameron. There is a situation in the talking-machine art that is perhaps divisible. You see two distinct forms of records. The company which I represent—the American Graphophone Company—makes both of those forms. There are a great many other companies, some of them making the machines and the records, and some of them making only the records. Some of them make the cylindrical form of record and some of them make the disk form of record; but there are two large, prominent companies, one of which makes the disk form of record and the other of which makes the cylindrical form of record. As I say, the company which I represent makes both.

Follow me now, if you please. There is also as close a musical trust, as has already been said to you by my predecessor, in this country as it is possible to form. That extends not only throughout this country, but throughout the world. There are a few musical geniuses who are able to stand above it and make them scramble for the genius. You have two of them with you to-day, Victor Herbert and John Philip Sousa. But John Philip Sousa can not speak for the struggling young composer who is not powerful enough to compel this trust to come to him instead of the young man going to the trust.

How does that effect us? Did you hear any opposition to this bill from the attorney of the Victor Talking Machine Company? No. They make the disk form of record. Have you heard any opposition from the National Phonograph Works—the Edison Company—in regard to this bill? No. They make the cylindrical form of record. Why does the Victor Talking Machine Company come here with such a virtuous show of regard for the author, and say they have no objection to this? Why is not the representative of the Edison Company—the National Phonograph Works—here opposing this bill? Because, as I charge, and I think I can substantiate it before I get through—not here, but I mean before the hearings before this committee are through—there is under way the same iniquitous proceeding that was outlined to you by my predecessor in connection with the music rolls.

Mr. Pettit. That is absolutely untrue, as far as the Victor Talking Machine is concerned.

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

One company gets the exclusive right to make the disk form of record from copyrighted music, and the other the exclusive right to make the cylindrical form of record. Let us assume for a minute that what the gentleman says is literally true. Let us assume, I say. Is it not possible for just that combination to be made, and should the American Graphophone Company, which has millions of dollars invested in the enterprise, honestly and fairly built up under the laws of this country, money put in and money which it had an absolute right to presume the law would protect—should that company be placed in the position where it should be practically driven out of business by any such monopolistic combination? Will you gentlemen give them that opportunity?

I am not prepared to say that this music publishers' combination is the most gigantic trust on earth, but it is an absolutely close and effective trust. You may reply that we have the right to play and put upon these records all of the old noncopyrighted productions, those that are now within the public domain. To that I reply that the perforated music roll man or the talking machine man who attempts to rely solely upon old music will go out of business inside of eighteen months. He has got to meet the demand for the popular airs of the day. He has got to be able to produce Sousa's and Victor Herbert's latest productions. "I want what I want when I want it." That is where the public stands. [Laughter.] You wait three years instead of fifty, and where would we be?

Moreover, we go to Japan, we go to China, we go to the various countries of the earth, and make these records—get the original records. We do not make the original record on that disk. We do not make it upon that cylinder. We make an original record from the voice of the singer. That original record in the case of the cylinder is first very carefully covered with plumbago, to render it electrically conductive. It is then electroplated with copper; by applying cold, the original record is shrunk out, and you then have a mold, which has on its interior a perfect counterpart of the sound groove cut upon the face of the original record. We pour into that mold melted wax, or a composition that is called wax in the trade. When that is hot, it takes the impression of the mold and retains that until it sets; and as it cools it contracts, and we are then able to withdraw that from the mold, and after trimming the ends, that reproduction, that copy, is as perfect a record as the original one. If it were not so, we could not make and sell a record for fifty cents when we have to pay the singer from $500 to $1,000 or $3,000 for making the original record.

Mr. Webb. I was going to ask, How do you get Mr. Sousa's pieces? Do you pay him for it?

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

Mr. Webb. Who does?

Mr. Cameron. The Victor Talking Machine Company has an exclusive contract with Mr. Sousa, and he gets paid for that. He did not tell you that the other day.

Mr. Sousa. That is absolutely untrue.

Mr. Cameron. If it is untrue I am ready to beg the gentleman's pardon. I had that information direct this morning, but I will gladly withdraw it upon Mr. Sousa's word—gladly. I do not want to make any misstatement.

Mr. Sousa. I have never received one penny for my compositions from any kind of talking machine, nor have I ever made a contract with any of those companies.

Mr. Cameron. I did not state that. I stated that Mr. Sousa, with his band, played into the horns of these instruments to make these records and was paid for doing it.

Mr. Sousa. An organization known as "Sousa and his band," employed just as any other body of musicians, in which I have no part myself, plays into the instrument. That goes under arrangements made with the management of that organization to play anybody's compositions that these firms may elect; it may be a noncopyrighted piece or a copyrighted piece, or anything else.

Mr. Cameron. I am very glad Mr. Sousa stated that. He says that he does not play his own music only, but his band stands ready to play any other man's music, copyrighted or not copyrighted, into these machines.

Mr. Sousa. Not myself; no.

Senator Latimer. I want to ask a question of Mr. Sousa, so as to clear the matter up a little further. The statement is that you have a band that plays into these instruments, and you, I understand, have denied that?

Mr. Sousa. No, sir; I do not deny that "Sousa and his band," an organization known as "Sousa and his band," play for talking machines.

Senator Latimer. Do I understand you to say that you have no connection with that band?

Mr. Sousa. I am the director of that band, but I have no personal part in the performance of those pieces. I have never been in the gramophone company's office in my life.

Mr. McGavin. Do you play for anyone else besides the Victor Talking Machine Company?

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

Senator Latimer. You have an interest in the band and receive profit from it?

Mr. Sousa. Yes; surely.

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

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

Mr. Cameron. That was my charge.

Mr. Herbert. In regard to the untruth the gentleman has stated——

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

Mr. Herbert. Yes. In regard to this, naturally it would be inferred that it was the same case with me. In fact, he mentioned us two together. A band played into these instruments, calling itself "Victor Herbert's band," and I sued the talking machine company. That is what I got out of the company.

Mr. Cameron. The gentleman misunderstood me. I have made no statement in regard to him, and I have no information in regard to him one way or the other.

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

Mr. Herbert. Since our names have been linked all the time, I thought he intended what he said to apply to me also.

Mr. Pettit. I would like to say to Mr. Cameron in regard to his statement about the Victor Company and Mr. Sousa, that whenever we have used Mr. Sousa's music, or rather whenever we used his band on Victor records, we always paid him for it—that is, we pay Mr. Sousa for playing.

Senator Latimer. I want to bring out one point in connection with that. In making these records, if I understand, now, Mr. Sousa has a band that represents him, playing these pieces, and you pay for that music when you get it, or do you not?

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

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

Mr. Cameron. I do not wish to be misunderstood. We can take and do take one of Sousa's marches and have another band, with which Mr. Sousa is not connected, play, and we make the record; and in that case Mr. Sousa does not get any of the compensation whatever. None of that goes to him.

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

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

Mr. Webb. You advertise it as a march by Sousa as a composer, but played by somebody else as the executant?

Mr. Cameron. Yes. That is recognized as such a valuable thing to the composer, that John Philip Sousa has been to the office of the American Graphophone Company, in years gone by, with advance scores, and asked them to send them out, to advertise and help John Philip Sousa along. He will not deny it. Moreover, we are flooded to-day with artists that are struggling on the lower rounds of the ladder, that are not as high up as John Philip Sousa was a few years ago, either, begging us to do the same thing for them. I mention that to show you that even John Philip Sousa, before he got where he bestrode the musical world like a colossus, even he recognized the advertising value of the talking machine to a composer. We are not doing him such a great injury.

Mr. Sousa. I would like to say, Mr. Chairman, that the gramophone, these talking machines, are really of very recent date. I believe the gentleman will agree with me when I say that if we go back fifteen years or sixteen years ago, we looked upon them purely as a toy. I remember the first one I saw here in this city where I was born. A gentleman had a man bark into it, and it was a remarkable thing to hear this thing bark——

The Acting Chairman. I would suggest, Mr. Sousa, that you are taking up this gentleman's time. Unless you want to specifically deny something that he has said, or ask a question, it is hardly fair to him.

Mr. Sousa. If I ever did allow the Gramophone Company to do it, it was because I did not think it was as important to them or to me as I do now.

Mr. Cameron. Please do not confuse us with the Gramophone Company. It is a different thing.

Mr. Currier. Do you wish to deny that you are a musical colossus? [Laughter.]

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

Mr. Cameron. One thing more in regard to the constitutional question which I mentioned. I shall submit, or the company I represent will submit, a written brief. You will be addressed on that point much more ably than I can address you by Mr. Walker, who will succeed me.

I want, in closing, however, to emphasize one fact which my predecessor, I understood, was told was unnecessary. With all deference to the chairman, who said so, I disagree with him. That is the fact that not only was the American Graphophone Company and the talking-machine interests not notified, not only were these conferences—quarterly conferences, we might call them, held in secret——

Mr. Currier. I think you gentlemen had better all make it clear, when you speak about these conferences, that you do not refer to committees of Congress.

Mr. Cameron. No, sir; we do not. We refer to these star chamber proceedings, before this bill was introduced into Congress.

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

Mr. Cameron. By Herbert Putnam and the men he brought around him. That is by whom.

Mr. Currier. I wanted it made clear that you were not referring to any committees of Congress.

Mr. Cameron. Every effort was made to keep us from knowing that any such bill was under way. It was not merely an act of omission, but it was an act of commission. That is not all. Not only were the American Graphophone Company not notified, but, if you will turn to the list of those present, you will find that one of those whom I have mentioned here, the representative of the Victor Talking Machine Company, at the third stage of the proceedings, was present—as what? As one of the musical publishers of the country, representing the Victor Talking Machine as one of the musical publishers of this country. See how close the association is.

The gentleman who follows me will point out that association a little closer. I think by that time the committee will realize that my suggestion of a close cooperation between the National Phonograph Works, the Victor Talking Machine Company, and the Musical Publishers' Association is well founded.

I thank you.

The Chairman. Gentlemen, we will meet to-morrow morning at 10 o'clock to hear Mr. Walker.

Mr. Burkan. I represent the publishers and the composers. An attack has been made here, and we feel that we should get at least several minutes to answer the charges that have been made.

Mr. Currier. You will have some time to-morrow. We meet at 10 o'clock to hear Mr. Walker for an hour. After that you gentlemen will have an opportunity to be heard, undoubtedly.

Mr. Cromelin. I was to appear here to-day for the manufacturers, in behalf of the talking machine interests, and was to follow Mr. Cameron. If the chairman pleases, I should be very glad to continue the first thing to-morrow morning, and let Mr. Walker follow.

The Chairman. I could not consent to that, because I understand that Mr. Walker has been notified that he will be heard the first thing to-morrow morning.

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

Mr. Walker. It will be quite consistent with my convenience to let this gentleman precede me for whatever time he wishes.

The Chairman. How long would you want?

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

The Chairman. With that understanding, Mr. Walker, he will precede you.

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

The Chairman. Yes.

(Thereupon the committee adjourned until to-morrow, Saturday, June 9, 1906, at 10 o'clock a.m.)

Committee on Patents,

House of Representatives,

Saturday, June 9, 1906.

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

Present: Senators Kittredge (chairman), Clapp, and Smoot; Representatives Currier, Dresser, Bonynge, Campbell, Chaney, McGavin, and Sulzer.

Mr. Putnam. I have one or two communications, Mr. Chairman, in effect addressed to the committee, which I offer for the record.

The Chairman. They may be inserted.

The communications referred to are as follows:

Washington, D.C., June 8, 1906.

The Joint Committee on Patents, United States Senate and House of Representatives.

Gentlemen: On behalf of the Photographers' Copyright League of America, having participated in the conferences called by the Librarian of Congress upon the subject of a new copyright law, we beg to say that we give our hearty assent to the principles of the bill as proposed. Of course, there are minor matters which might have been otherwise drafted by us, but we as cheerfully surrender such particular items, as did many other interests represented at the conference.

Copyright legislation has for its basic principle the protection of the property of the copyright owner, and though remedies for damage are manifestly necessary, prevention of injury is the matter of highest importance to the copyright owner. Legislation which acts as a deterrent is the active principle of protection prescribed by the Constitution. For these reasons we believe the pending bill has been framed upon logical and consistent lines which, if enacted into legislation, will doubtless form precedent for other countries.

Very respectfully,

Photographers' Copyright League of America. B. T. Falk, President. Pirie Macdonald, Delegate.

Horace Pettit Law Offices, Philadelphia, June 1, 1906.

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

Dear Sir: Referring to the proposed bill to amend and consolidate the act respecting copyright, a copy of which has been handed me, with your circular letter regarding suggestions, I would say that I would propose that the following clause be added continuously to the end of section 3:

"And provided, That nothing herein contained shall apply to sound records made or to be pressed from dies or matrices manufactured prior to the passage of this act."

That the following be added to section 18, paragraph (b), line 7, of said paragraph, between the word "composition" and the word "any," viz, "including any talking-machine record."

The amendment to section 3 is mainly designed to protect talking-machine manufacturers who have invested very large sums of money in records and in dies or matrices for pressing the same, many of which contain musical compositions the notation of which has been copyrighted, but which under existing laws these records do not in any manner infringe. To now take away the right to use these matrices and records, into which so much money has been put, would be very unjust and inequitable and work a great hardship upon the talking-machine manufacturers—that is, if my reading and understanding of this bill is correct. This would tie up a very large amount of capital, and place the talking-machine record manufacturers at the mercy of the owners of subsisting copyrights.

The object of the amendment to section 18, paragraph (b), is to relieve any doubt that records containing the characteristic articulation of the human voice, or the characteristic instrumentation by a performer, adapted for reproducing these characteristic utterances and performances to the ear are intended to be included as copyrightable matter under section 4 of this bill.

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

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

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

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

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

This record of the voice and instrumentation for sound reproducing is an art which was not commercially available, or perfected, when the earlier copyright laws were passed, and therefore were not included. It is doubtless the intention of the framers of this bill to include such sound records as copyrightable matter, but in order to relieve the bill from any doubt it may properly be expressed in this section as I suggest.

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

Yours, very truly,

Horace Pettit.

The Playwrights League Club, New York, N.Y., June 2, 1906.

Librarian of Congress, Washington, D.C.

Dear Sir: We are in receipt of your favor of the 31st ultimo, with copy of proposed copyright law. After careful consideration the provisions of this law seem admirably suited to the purposes, and its framers deserve great commendation.

As circumstances do not permit my attendance at the hearings, I would consider it a favor if you would read this letter to the committee, if not all of it, then the portions which may not be referred to at the hearing, should anything herein referred to fail to be considered. The latter paragraphs of the letter are especially brought to your attention.

In section 1, subdivision C, provision is made for the protection of an "oral delivery" which has been prepared. Would it not be well to specifically allow a speaker to announce at the conclusion of an extemporaneous address his intention of copyrighting it, not permitting this announcement, however, to interfere with the liberty of the press in reporting portions of it?

Section 9 directs that notice of copyright shall be given at each public delivery of a lecture or similar work. Does "similar work" include dramatic composition? Is the proposed notice to be given orally, or by publication on a programme, if there is a programme? It would seem that in the case of a dramatic composition theatrical managers should be compelled by law to print on each programme copyright notice of the play or plays produced, being allowed, where there is no programme, to announce it orally.

It would also seem important that in the case of a dramatic composition publicly acted in foreign countries notice of copyright in the United States, together with legal title of the work in English, be printed on the programmes, as well as on the manuscript copies of the play. This would serve as a notice against translators, who otherwise would have great difficulty in finding out whether a foreign play had been copyrighted here, since the name of the play or its English equivalent rather, would be very uncertain. Does the new law specifically require all titles to be also in English?

Does the law provide for the registration of the title in advance of the deposit of copies as at present—a valuable privilege?

Section 20 seems calculated to work an injustice to novelists. That the author's exclusive right to dramatize his copyrighted work should cease in the event of his being unable within ten years to induce managers to produce his dramatization would be unfair—would, in fact, encourage producers to wait until after ten years before producing a dramatization of a novel. Would it not be sufficient to state that the exclusive right terminates at the end of ten years provided the author does not file at least an unpublished dramatized version?

Does this section 20 mean that a foreign dramatist who deposits an unpublished and untranslated copy of a dramatic composition loses his rights if his play is not produced publicly in ten years, or does it allow him to deposit a translated unpublished copy any time within ten years, in order to protect his rights?

Section 45 might be profitably augmented by including the privilege of allowing an author who writes under a pen name to print the notice of copyright also under the same pen name. This would be a considerable privilege, since at present he must go through the complicated process of assigning his copyright to another if he does not wish his real name to appear. In his claim for copyright he could state both his real name and his pen name in which he wished the copyright to appear. This would work injustice to no one and would be a great convenience to authors whose real names are of an uninspiring nature.

This section 45 might also contain a provision allowing an author to change the title of an unpublished work without deposit for further copies, provided he paid a fee, since almost every unpublished play is renamed. The duplication of copies of the same work under different titles is of no service to the copyright office and is frequently an expense to authors. The production of a play under any other than its copyrighted title should invalidate the copyright.

The requirement of section 60, raising the copyright fee from 50 cents to $1, will work a real hardship to many writers, particularly those who write short plays for vaudeville and have a hard time to make a living, to those who write many plays without ever securing any returns, and to the writers of words of songs, whose work is apt to be stolen unless copyrighted and who receive a very small compensation in any event, as a rule. We would strongly recommend that for unpublished works and short articles in periodicals especially copyrighted and for photographs the fee be held at 50 cents, or even reduced to 25 cents.

Upon the enactment of the new law the copyright office will receive from the dramatic writers a great many more works than are at present offered, owing to the unsatisfactory condition of the existing law. The number of dramatic compositions offered will also be greatly increased by the favorable fact of the omission on the notice of copyright of the year. At present the author of an unpublished play must state the year of his copyright on his title-page, and as it is often ten years or more after a play is written before it secures a production, this telltale date proves a great drawback in submitting the play to managers, and therefore many authors prefer to run the risk of losing their plays rather than to affix this hall-mark of antiquity. The prospect of this increased revenue should be sufficient to induce the makers of the law to reduce the copyright fee on unpublished works.

I should recommend also that a specific clause be added making it a misdemeanor to copy from an unpublished manuscript any portion without authority, or to be found in the possession of an unpublished copyrighted manuscript or parts thereof without authority. This would correct two grave abuses, one, the stealing of an author's ideas and dialogue by a manager to whom the play might be submitted, and the second, the stealing of manuscripts after a play is produced. One bureau openly advertises and continually sells for a few dollars manuscripts of produced plays, and the sale of such manuscripts enables infringers to deprive authors of great sums in royalties. The adoption of such a section as this will, of course, be sharply contested, but there is absolutely nothing inequitable in it for any person not intending fraud.

It might also be well to deny the privilege of copyright to authors who allow their plays to be publicly performed without first securing a copyright.

I trust that none of these suggestions will be taken as a criticism of the proposed law, which will confer great benefits upon and will greatly stimulate native art, but I am confident that the importance of some of the proposed additions and the convenience of others will at once be seen.

Allow me to thank you for your courtesy in sending us the copy of the proposed law, and to request the favor of any further matter which the copyright office may have to issue upon the subject.

Yours, respectfully,

The Playwrights League Club, By Edwin Hopkins, President.

Briesen & Knauth, Counselors at Law, New York, June 8, 1906.

Register of Copyrights, Library of Congress, Washington, D.C.

Sir: On behalf of a number of clients, who are interested in the new copyright bill, we respectfully beg to suggest that in order fully to carry out the broad purpose of the framers of the bill, the bill should be amended substantially as shown in the accompanying draft amendment.

The bill as it now stands does not provide for the registration, by means of one entry, of a great many works of literature or art which from necessity are printed on detached sheets.

Section 60 of the bill provides that several volumes of the same book or a series of photographs, drawings, etc., relating to the same subject—with variances only in pose or composition—may be registered for one fee. But a connected series of instruction carded for educational use, a series of color prints to be used on toy building blocks, sliced animals, games of authors, and other card games are protected. There is no doubt that a new game, such as pit, flinch, etc., should be copyrightable as a unit, whether with or without rules for instruction, in such a manner that all the artistic work and literary work may be fully covered by copyright, although the items of the series are not physically connected, and are not each provided with separate copyright notice.

While the experts in charge of the bill may be able to phrase this purpose in words more apt than those contained in the proposed amendment, there is no doubt that it is the intention of the framers of the bill to include the articles referred to in this letter, and also that the bill as it now stands does not cover such articles.

Respectfully,

Briesen & Knauth.

Proposed amendments to bill S. 6330.

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

Line 12, change period to colon, and add:

"And provided, furthermore, That a series of copyrightable works, assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, fee and notice should the applicant elect, whether or not the items comprising said series are actually joined by binding or otherwise."

Section 60, page 38, line 15, change period to comma, and add: "or of a series considered as the subject-matter of a single copyright registration as provided for in section 5 of this act, where the items composing it are deposited at the same time under one title with a view to single registration."

Mr. Chairman, I ask leave to interpolate a word to the group of interests adverse to these "musical-device" provisions of the bill. I say it for the Government. And in order to avoid a syllable more than is necessary I have written it.

The reasons, gentlemen, why your group was not invited to the conferences were made plain in my opening statement. First, the conference was a conference of associations, and your interests are not organized into an association. But, second, the conference was to be particularly of those interests concerned "in an affirmative way"—that is, in amplifying the copyright protection; and your interests are negative. We quite anticipated the issue raised by these provisions, but it was not an issue which seemed appropriate to the conference nor for other reasons one likely to be settled by the conference.

Mr. Thomae represented that his interests might in one aspect be affirmative also and asked to hear the discussion. He was permitted to. He was not invited; he did not participate; he uttered not a word in the course of the entire proceedings. But he asked to come and listen, and he was permitted to. On the list of the few others present as observers you will find the name of Gen. Eugene Griffin. General Griffin came to us in March saying that he understood some such provisions as these were under consideration; he had some interest in a concern which would be affected; could he attend the conference and hear what was proposed? Certainly. And he did. Mr. Thomae was to us but the maker of a particular typical device. With Mr. Thomae as a competitor among you we had no concern. What device or company General Griffin was interested in we did not know and I do not know to this day. But we took care to insert the names of both gentlemen on the printed list of those present, so that you and others might be free to make such inference as you chose from the fact of their presence. And this list was furnished freely to all requesting it.

These conferences have been going on for a year past. The fact that they were being held, their purpose, and the associations participating in them was freely published. Among these associations were the composers and the music publishers. In the Apollo suit then pending they were trying to secure protection of this sort under existing law. There was every reason to suppose that they would urge it in the new statute. Did any of you ever inquire of us whether they were doing so? As long ago as last December the President announced to Congress, and in the most public way to the country, that the bill had already been prepared. Did you ask us for it? Did you even ask whether such a bill would be likely to include any such provisions? As long ago as January the music trade journals began to refer to the fact that it would do so. Did you then ask leave to come to the next conference? Did you ask even as to the character of the provisions? Did you communicate with the Copyright Office in any way in the matter? You know you did not.

The fact that you did not is not to prejudice you in any way, and the fact that you did not participate in the conferences I have myself emphasized to the committee to your advantage, pointing out that these provisions had been inserted without discussion at the conferences by any interest naturally adverse to them. The fact is to your advantage. I earnestly suggest that you avoid giving it a twist such as Mr. Cameron gave it yesterday; I mean by such expression as "star chamber proceedings." We can't let such imputations against the Government stand uncorrected. But we hate to have to divert attention from the main issue in order to correct them. The main issue is the merit of these provisions. We are as anxious as is the committee to know your substantial objections to them. And our interest is absolutely identical with that of the committee in seeing that the objections you show shall have due value and effect.

(The following letter was subsequently written by Mr. Putnam, and by direction of the chairman made part of the record:)

June 16, 1906.

Messrs. Chairmen: In my remarks to the representatives of the talking machine and perforated roll interests at the hearing of June 9 I stated that Mr. Thomae had not been "invited" to the conferences. Of course he was invited or he could not have attended. What I meant was that he was not among those originally invited or in our list of those naturally entitled to be present.

I had thought the distinction sufficiently clear from the context; but I find that it was not.

The chief purpose of my reference to him and to General Griffin was not, of course, to excuse or explain their presence, but to indicate how readily access to the conference could be secured by a request to the copyright office.

Very respectfully,

Herbert Putnam, Librarian of Congress.

The Chairmen of the Committees on Patents of the United States Senate and House of Representatives.

Mr. Currier. I wish to say that last winter some time Mr. Griffin, who is interested in one of the perforated-roll concerns, called at the committee room and talked about this matter, and I advised him at that time to see Mr. Solberg and Mr. Putnam. The committee clerk has had some correspondence with him since that time, and other gentlemen connected with that same business, I suppose, have been into the committee room to make inquiries regarding this matter pretty nearly every week for months.

Mr. Cameron. I would like to say that I do not even know who Mr. Griffin is.

Mr. Currier. He is the vice-president of the General Electric Company. I think he lives in Brooklyn and is connected with some perforated-roll company.

Mr. Cameron. I wish to point out that the remarks that I made were in connection with the American Graphophone Company and the automatic talking machine, and not the perforated-roll business. That is the matter that is involved in these suits, not the talking machines.

Mr. Burkan. Mr. Griffin represents the Edison Company, and they manufacture talking machines.

Mr. Davis. Mr. Griffin does not represent the Edison Company, and he is a director of the Perforated Music Roll Company, who operated under my patents. General Griffin is now in Europe, and this notice which I referred to yesterday, in which I stated that notice was given me that my license would be canceled in case this bill passed, came from Mr. Henderson, the acting manager of the Perforated Music Roll Company, on behalf of General Griffin and other directors.

Mr. Henderson notified me that the passage of this act would put them out of business. He also stated to me that General Griffin had stated to him that he attended these conferences, and that he considered them logrolling proceedings, and that in time he would take action to oppose them. But at present General Griffin is in Europe. I am sure, from his remarks, that he would oppose this measure in the strongest possible way.

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

Mr. Chaney. I think it is due to this record to say that the ultimate responsibility about this whole matter rests with Congress, and that these matters are all simply advisory, to help us to the proper conclusion and result, and that none of these gentlemen are going to be deprived of an opportunity to express themselves in whatever way they please, and to say whatever they may have to say, and that, so far as we are concerned, there is no star-chamber proceeding about it, and no logrolling business about it. We are here simply to get advice the best we can, and therefore we shall undertake to hear everybody.

The Chairman. Mr. Chaney is entirely right. The sentiments that he has expressed have been freely stated by the committee during the past three or four days that we have been in session. The committees of the Senate and the House are willing, and will be willing, to hear anyone who has objections to or who is in favor of this bill at any time within any sort of reason. It seems to me that it is to little purpose, so far as the committees are concerned, that there should be any controversy between anyone regarding the past. Who is the next witness?

Mr. Currier. I might say that it was for that reason that both committees decided to make no effort to report this bill at this session, but to let it go over until next winter, in order that people could have an opportunity during vacation to file briefs and such statements as they might desire to offer.

The Chairman. That is the precise purpose of the statement made by Mr. Currier in behalf of the House committee at the first session or the second, and by myself in behalf of the Senate committee.

Who is the gentleman that desires to be heard further?

Mr. Putnam. Mr. Cromelin.

The Chairman. You have how many minutes?

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

The Chairman. You were limited, two days ago, to one hour for your enterprises. Mr. O'Connell had a little over an hour, and I am told that after I was compelled to leave for the Senate yesterday somebody representing these interests had fifteen minutes. We will give you fifteen minutes, with the privilege of submitting in writing any further statement that you desire to make.

Mr. Currier. It is necessary to do that, for the reason that two gentlemen are on the way here from Chicago who want to be heard this morning, representing the same interests that you represent.

Mr. Serven. I present, Mr. Chairman, a letter from the chairman of the 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:)

The Chairman of the Joint Senate and House Committees on Patents. Washington, D.C.

Dear Sir: I beg to make reply to an accusation against the Music Publishers' Association of the United States yesterday by the manufacturers of mechanical perforated music rolls, cylinders, and disks, in which they claimed our association had corralled into its ranks, by promise and contracts, the Victor Talking Machine Company, of Camden, N.J. They further claimed that the Librarian of Congress had made no attempt to seek them out and give them representation at the various conferences he had called for the purpose of securing suggestions from organizations of authors, composers, and others interested in receiving copyright protection for their productions.

I beg to state that the copyright department during the interim between the first and second conferences conferred with me and asked if the talking machine and music roll manufacturers had an organization. I replied that I did not know but would inquire about it. About that time I met Mr. R. L. Thomae, a representative of the Victor Talking Machine Company, who had just drafted a bill with the view of presenting it to Congress, for protection on musical compositions for which his company had secured the right, having expended about $35,000 for well-known artists who had sung in the records for them. They wanted protection from the pirates in their own business from copying such valuable subjects. As a result of our talk Mr. Thomae decided to drop the bill and secure protection in the new copyright draft which was then being formulated.

Mr. Thomae and myself made a trip to Washington, called on the copyright department, and it was agreed, in view of the fact that the talking machine people had no organization, that the delegates from the Music Publishers' Association should be increased from two to three, provided the third member was some representative of the talking-machine interests. After conferring with the president of the association it was decided to do this, and Mr. Thomae was selected as such representative. We believe that the talking machine people should have as good protection as ourselves on their original or characteristic works embodying the personalities and instrumentation of their artists, bands, orchestras, etc., employed by them.

We hereby declare that the Victor Talking Machine Company has no contracts of any kind whatsoever with any member of the Music Publishers' Association of the United States in regard to any future purchase for use of compositions belonging to us. This statement will explain in detail how the Victor Talking Machine Company came to be associated with the Music Publishers' Association in the copyright conferences held to aid in drafting the bill here under consideration. All statements to the contrary are not substantiated by the facts.

On behalf of the Music Publishers' Association of the United States, whose list of members is attached, I beg to remain,

Sincerely, yours,

George W. Furniss, Chairman Copyright Committee.

Members Music Publishers' Association, June, 1905 to 1906.

Allbright Music Company, Chicago, Ill.

Anthony Brothers, Fall River, Mass.

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

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

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

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

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

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

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

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

Ditson, Oliver, Company, Boston, Mass.

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

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

Fischer, Carl, 6 Fourth avenue, New York.

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

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

Francis, Day, & Hunter, New York.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rohlfing Sons' Music Company, Milwaukee, Wis.

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

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

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

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

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

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

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

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

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

Vandersloot Music Company, Williamsport, Pa.

Victor-Keemer Company, Chicago, Ill.

White-Smith Music Publishing Company, Boston, Mass.

White-Smith Music Publishing Company, Chicago, Ill.

White-Smith Music Publishing Company, 13 East Seventeenth street, New York.

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

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

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

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

STATEMENT OF PAUL H. CROMELIN, ESQ.

Mr. Cromelin. Before proceeding, I would like to make this point clear: That Mr. O'Connell yesterday, in appearing before your committee, was representing the perforated-roll interests. I represent the talking-machine interests, which means more in dollar capitalization than the perforated-roll interests. I trust, while I shall endeavor to finish my remarks in fifteen or twenty minutes, that if General Walker is willing, you will extend my time to half an hour.

The Chairman. We are compelled to limit you absolutely to fifteen minutes.

Mr. Cromelin. Very well, sir.

Mr. Chairman and gentlemen of the committee, on behalf of the Columbia Phonograph Company and the Columbia Phonograph Company, General, sole sales agents for the American Graphophone Company, I protest against those portions of the proposed copyright law by which it is proposed to extend the copyright protection to reproductions to the ear, so as to include under the term "writings," as this term is used in the Constitution of the United States in the protection of authors and composers in their writings, mechanical or other reproductions to the ear; and, in particular, in so far as this bill may be construed to cover talking machine sound records in any form soever.

In view of the fact that you are going to limit me to fifteen minutes, I think it best that I should state specifically my reasons for opposing this bill, and I have put them down in writing. I have fifteen specific reasons, and I would request that during the time I am stating these reasons I shall not be interrupted. I invite the committee at the conclusion of my statement of these specific reasons to ask any questions they wish, and I request permission to appear before the committees at some future time, during the recess of Congress, to explain in detail all the statements that are made. Without attempting to elucidate, gentlemen:

First. We protest that such legislation, in so far as it relates to talking machine sound records of any kind, is unconstitutional.

Second. That such legislation is against public policy and directly contrary to the spirit and progress of the times.

Third. That the demand for such legislation does not emanate from the great mass of the musical authors (composers), nor is it demanded by them, but has been conceived by certain selfish individuals who have conspired together to form and create a giant monopoly, the like of which the world has never known.

Fourth. That such legislation, instead of being in the interest of the composers, is directly opposed to their real interest, which is to have the greatest possible distribution of such records as the best means for creating a demand for their sheet music. Abundant evidence can be furnished to sustain this fact, if desired.

Mr. Currier. It is desired.

Mr. Cromelin. Fifth. That it is class legislation in the interests of the few as opposed to the enjoyment and happiness of the masses, whose rights seem regularly to have been lost sight of during its preparation, and that it is particularly vicious when the rights of the poor are considered.

Sixth. That in so far as the question of copyright must of necessity be viewed from an international standpoint, it is inadmissible, intolerable, and distinctly un-American to grant to foreign composers the right to extract toll from every American citizen where such right is denied such foreigner at home in his own land and is denied to American composers abroad.

I hope during the recess to explain my connection with this matter. I was the representative of my company in Berlin, Germany, for four years, and had occasion to appear in this very matter; and I want to warn you gentlemen against what happened there. I trust that freedom will be given to all mechanical musical instruments and that no Æolian monopoly will be able to tack on a provision which will give them perforated-roll rights and exclusive rights. I propose to show that this monopoly is not of a national character, but the attempt to create it is an international conspiracy.

Seventh. That such legislation is directly contrary to all recent legislation in foreign countries, the most important of which is the act of the German Reichstag in 1901, by which perfect freedom is given to use copyrighted works for the purpose of mechanical reproduction; and by which, by reason of an interpretation announced by the minister of justice prior to the third reading of the bill, the right to record and reproduce any copyrighted work by means of talking machines was expressly permitted.

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

Ninth. That in no other country is substantially like protection afforded to composers, but that such protection has been universally denied.

Tenth. That even if such rights were granted under the laws of Great Britain, Germany, France, Belgium, and other countries, which they are not, it is beyond the power of Congress to do other than that which it is expressly permitted to do under our Constitution, and the only way by which such a law could be enacted which would stand the test of the highest court of judicial inquiry would be by an amendment to the Constitution of the United States. On behalf of my company, I protest against being plunged into such long and expensive litigation as would necessarily ensue if this bill becomes a law, unless the necessity for the same is urgent, and this I emphatically deny.

Eleventh. That such legislation is in direct contradiction to all recent judicial decisions on the subject in this country and abroad in which common law rights and statutory rights of authors and composers, their scope, extent, intent, and purpose have been discussed, the most noted of which in this country is the decision handed down by the United States circuit court of appeals, second circuit, during the last week of May, in the Æolian suit against the Apollo Company, Judges Lacombe, Townsend, and Coxe, without a dissenting voice, approving and upholding Judge Hazel's opinion rendered in the court below sustaining the contention that the perforated roll is not a violation of the copyright, and it is interesting to note that the court went out of its way to say:

The argument that because the roll is a notation or record of the music it is, therefore, a copy would apply to the disks of the phonograph * * * which it must be admitted is not a copy of the sheet music.

In England the same position is taken by the courts, the leading and most recent case being Boosey v. Whight, in which it was clearly held that the perforated roll was not a violation of the copyright. In Belgium, by decree of the fourth chamber of the court of appeals in Brussels, December 29, 1905, in the case of Massenet and Puccini, composers, v. Ullman & Co. and Pathe Frères, manufacturers, in dismissing the suit, with costs, the court uses this language—I want to say to you, gentlemen, that this was a graphophone case:

Considering that these apparatus can not be assimilated to the writing, or the notation by an engraving process, of the thoughts of the author; that they have nothing in common with the conventional signs permitting reading or comprehension of the work to which they are related; that isolated from the rest of the instrument they remain in the actual state of human knowledge, without any utility, that they are only one organ of an instrument of execution.

In dismissing the suit the court referred to a similar suit decided in France February 1, 1905, in which it was confirmed that—

airs of music on disks or cylinders of graphophones and gramophones do not constitute a musical infringement.

Twelfth. That the proposed legislation in so far as relates to mechanical reproductions is in furtherance of the plans of certain powerful interests to obtain a monopoly—an international monopoly—on mechanical reproducing instruments of all kinds, and that they are attempting to use the legislative branch of the Government to secure that which has been repeatedly denied them by the courts.

Thirteenth. That it is vicious, in that if it is permitted to be enacted into law it will deal a deathblow to great American industries which have been extended until now they embrace all countries, and in which millions of dollars have been invested in the knowledge that the right to manufacture was perfectly lawful and that the right to continue such manufacture, unhampered by such ruinous conditions as would be imposed by this bill, could never be brought into question or become the subject of serious dispute.

Fourteenth. That if this bill becomes a law it will seriously affect the rights of thousands upon thousands of American citizens who have purchased these machines and who have the right to expect to continue to use them and to obtain the supplies for them at reasonable prices instead of paying tribute to a grasping monopoly.

Fifteenth. And finally, that whatever arguments may be advanced by the association of musical publishers (and their allied interests, whose representatives framed the bill, and who, if it becomes a law, will get 99 per cent of the benefits to be derived therefrom), regarding other methods of mechanically producing sound on the theory that the same constitutes a method or system of notation and under certain conditions may be read by persons skilled in the art, under no circumstances can such arguments be truthfully advanced to cover or apply to talking machine sound records.

No man living has ever been able to take a talking-machine record and by examining it microscopically or otherwise state what said record contains. In this sense it stands preeminently in a class by itself, being unlike perforated rolls, cylinders containing pins, metal sheets, and other devices used in mechanical production of sound, and is not to be likened in any manner to the raised characters used in methods of printing for the blind, where by the sense of touch the meaning is intended to be conveyed. The sense of touch is a mere incident due to the disability of the blind, but it is perfectly feasible and easy to read the characters with the eye, and they are very properly the subject of copyright. I repeat, that to attempt to decipher a phonograph disk is in the very nature of the proceeding "reaching for the impossible." How utterly preposterous and ridiculous it would be to pass this act in its present shape, which would make a telegraphonic sound record, which is something that can not even be seen—the record itself being caused by the magnetization and demagnetization of an electric current of an ordinary piece of wire or a cylinder or disk of steel—a violation of the copyright laws.

You have seen several examples, gentlemen, of methods of reproducing sound. Mr. Cameron showed you yesterday the disk form of talking-machine record. [Exhibiting disk.] That record, if you were to examine it under a microscope, is an engraving of the sound, which is produced by a method wherein the sound waves are engraved laterally at a uniform depth.

Another form is the cylindrical record. Mark you, gentlemen, our company is the only one on earth that manufactures both forms. We are vitally interested in this legislation. In the cylindrical record the cut is of uneven depth. It is an up-and-down cut.

There are other methods, and one or the most important discoveries of the age—a discovery which was considered of so much importance that at the St. Louis Exposition of 1904 it was given great prominence in the Government exhibits—is the telegraphone.

I have here a record [exhibiting record] and I would like to ask Mr. John Philip Sousa if he can recognize "The Stars and Stripes forever" upon it. I would like Mr. Bowker, who stood up yesterday and said that he could read the music roll—which I emphatically deny—whether he recognizes an address of Mr. Victor Herbert upon this form of record [exhibiting record]?

I doubt very much whether these persons who have come down here for the purpose of putting through this legislation have ever seen this thing. They do not know what it is, even. That is the sound record. I do not know what it is. Nobody knows what it is until you put it on the machine. Yet it can be reproduced indefinitely, and it can be destroyed by that peculiar power which we know not, because no one knows at the present time what electricity is. I want to tell you what you are doing: When you pass this bill and make it a law, you make that piece of steel copyrightable [indicating]. You make this record spring copyrightable. You do not see anything on it. Look at it closely. There is nothing but a magnetic current—an electric current—by which the sound is actually recorded and can be reproduced indefinitely. I regret, gentlemen, that I am not able to show you; and I hope at the sessions of Congress, or during the recess, to personally demonstrate what I am bringing to your notice this morning.

There is one other point I would like to bring to the attention of you gentlemen, and that is this: That in the cylindrical form of talking machine it is not necessary for the manufacturer to make the roll. In every other mechanical instrument which has been referred to here the process is a factory process; but, as I am speaking, the very words that I am uttering are being taken down by Mr. Hanna, and in less time than an hour these words will be transferred to a graphophonic record; and by that means to-morrow morning you will get your printed record. For fifteen years the reports of the House of Representatives and the Senate of the United States have been prepared in this manner. And now, when you make this bill a law I can not, notwithstanding the fact that I have purchased a piece of music of Mr. Herbert, take that which I have purchased and sing it into my machine at all. It is impossible to do so. I wish to draw this fine distinction, and show you that in the cylindrical form of talking machine it is not a mechanical operation which is done in a factory, but that it is an instantaneous form of photographing the voice. I would like to have a notation made of that.

You have limited me as to time, but before closing I want to show you what the practical operation of this bill would mean.

The Chairman. Your time has expired.

Mr. Cromelin. May I have just one moment?

The Chairman. You may have one minute more.

Mr. Cromelin. I would like to show you the point of the multiplicity of royalties. Under this law I go down to John F. Ellis's and buy a sheet of music composed by Mr. Victor Herbert. I pay the royalty at the time that I buy that music. I am a singer and I want to sing it. I go to a talking-machine company; but no, I do not dare. I must seek Mr. Herbert. And he says: "You are going to make a big sum on it, and you must pay me $25." I pay him $25, and I go to the talking-machine company and the company does not dare to proceed. They must first seek Mr. Herbert. Mr. Herbert says: "You are going to make a lot of money out of this; I want $100 before you can make the record." We pay that for the record.

I do not know when I get the record whether I am going to get a thing. It goes through a factory process, which costs me another hundred dollars, and then the record is made. I am about to announce the record to the people of the United States, and to give them the privilege of hearing it. What happens? No; I do not dare to do it. Every American has to pay tribute to Mr. Herbert. Before I can sell those records Mr. Herbert must get a royalty of 10 per cent on every one of them. I do not believe it is the meaning of the Constitution to do this.

Let us go one step further. At a recent banquet in Portland, Oreg., of the "Ad. Men's Association," by arrangement with the telephone company, over the seat of every person who participated in that banquet there was a little horn attached to the telephone, and there was a Columbia graphophone at the central office. But if this bill becomes a law the telephone company would not dare do that. They would not dare give the people in the country the privilege of an evening's entertainment, where they can not get to the big cities, without first arranging with Mr. Herbert. Mr. Herbert would say: "No; you can not do this. I want a hundred dollars' profit before you do that." After you have done it, everybody who pays a toll of 5 cents for an evening's entertainment to the telephone company pays its tribute to Mr. Herbert. I do not believe that that is the intention of you gentlemen.

I regret that I am so much limited as to time, and I hope to appear before you during the summer session, as I believe that I can throw some new light on the situation.

Mr. Currier. You gentlemen speak of the committee holding sessions during the summer season. The House has no such authority. The members of the House are likely to have a very busy season, and it will be impossible to get the House committee here during the summer. But the House committee will be here on the first Monday in December, ready to hear you gentlemen.

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

Mr. Chaney. In the statement that you submit I would like to have you make it specific as to which sections you object to, and make your argument apply to those sections.

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

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

Mr. Cromelin. Yes, sir.

STATEMENT OF ALBERT H. WALKER, ESQ., OF NEW YORK.

Mr. Walker. Gentlemen of the committee, I sincerely thank you for the compliment implied in giving me an hour in which to express my views upon this bill. The allowance is liberal, and it will not be extended except at the request of the committee. My hour will be an hour of sixty minutes, and my remarks will end at twenty minutes before 12, if they end in the middle of a sentence.

I do not appear in behalf of any particular interest, although I have one client which is interested in one section of the bill. I do not propose, however, to address myself particularly to the interests of that client. I do propose to address myself to the bill as a whole.

I think that the gentlemen who prepared this bill are to be thanked by the committee, and by the people of the United States, and by everybody else, for the large amount of labor which they have devoted to the preparation of that proposition for legislation. I particularly desire to express my personal appreciation of the labors of Mr. Putnam—his entirely disinterested and very skillful labors in the preparation of the bill.

We have had copyright laws in this country now for exactly one hundred and sixteen years, and none of them have been scientific; none of them have been systematic; none of them have been well developed. It is high time that the whole system of legislation upon the subject should be put upon a scientific basis and should be developed in a scientific form. This bill is a sincere attempt to accomplish that result. It contains a number of provisions which I heartily approve. It contains much that I think ought to be amended. I trust that out of this bill, and before the end of the present Congress, a bill will be evolved which will be enacted into law, and which will be just as to all parties and of very much benefit to the American people, and of benefit to the composers and the authors, who are the particular subjects of the bill. I believe, however, that before that result is accomplished extensive amendments must be made in this bill.

I am going to devote the first ten minutes of my time to stating the principles upon which I think those amendments ought to be framed, and after that I am going to apply those principles to portions of the bill, to show what changes would result from the application of those principles to the bill. In order to say what I intend to say on the subject of principles, it will be necessary for me to indulge in a few moments of historical statement.

When the scholar looks over the civilizations of history, he finds only one principle that pervades them all, and that principle is the principle and idea of the continuity of private property. China, Greece, Rome, Babylon, Nineveh, Judea, Egypt, England, Germany, Russia, the United States are all pervaded, as Japan is, by the notion of the continuity of private property. And when I speak of the continuity of private property I mean its continuous continuity, its hereditable character, its passing down from father to son, from age to age, and from generation to generation.

My good friends Victor Herbert and John Philip Sousa, men whom I respect personally as well as professionally, are basing their desire for the passage of this bill upon the notion which they have that that idea of the continuity of private property inheres in their intellectual productions; and there is exactly where my brothers are mistaken.

I am myself an author. I am an author of books and writings. A hundred of them probably have been published. I am the author of a very large number of addresses, which have been delivered without writing, on religious, historical, economic, legal, scientific, and miscellaneous subjects; but I know, as well as I know any proposition in history or in law, that I have not any element of private property in any of those intellectual productions, in the sense in which I am defining private property, namely, with the idea of continuity.

Why is that so? It is so because from the foundation of the world until now there never was a nation and there never was a day when the idea of the continuity of private property was connected in the minds of men with intellectual productions. England has developed the idea of private property more fully than has any other nation; and England never ascribed the idea of the continuity of private property to any intellectual production, either for an invention or for a writing. To this day no man has a right in England to a patent on an invention, and never has had. The granting of any patent on an invention in England is dependent entirely upon the pleasure of Edward the Seventh; and the patents themselves, when granted, each one of them sets forth that fact, and states that Edward the Seventh thinks on the whole that it will benefit the realm to grant this patent, and proceeds to grant it. But if Edward the Seventh and those who represent him choose to decline to issue a patent in pursuance of any particular application they can do so in entire conformity with the laws of England.

In respect to the protection of private property relevant to intellectual productions in the domain of books or musical compositions, this is the history in England: Prior to the time of Milton nobody had a right to publish anything in England without the permission of the Crown, and that permission was granted or refused, not with reference to the deserts or the merits of the author or the composer, but with reference to the opinion of the Crown as to whether or not the published thing would be beneficial or not beneficial to the public interests. And the Crown usually identified the public interests with the interests of the Crown, so that it suppressed what it desired to suppress and permitted to fly what it desired to be published.

At the time of the Commonwealth publication became free and was free, but there was still no notion of any exclusive right to publish a particular literary or musical composition inhering in the author of that composition; and that right never did begin and never was heard of in England until the reign of Anne, when Parliament passed a statute establishing such a right for a limited time.

In 1769 a copyright which had been issued under the statute of Anne had expired, and the owner of that copyright determined to test the question in the English courts as to whether or not there was a perpetual right of copyright under the common law of England, regardless of the statute of Anne, and the owners of that copyright brought suit for its infringement after the term established by the statute of Anne had expired; and the question whether such a common-law right existed or not came before the court of king's bench when Lord Mansfield was chief justice of that court. The court of king's bench decided, as an academic proposition, that there had been anciently an exclusive right to an intellectual production under the laws of England. That was, however, a purely speculative statement. They could not point to the time when anybody asserted any such right or to an instance when anybody had acquiesced in it. They simply took the ground, as an academic proposition, that anciently there had been such a right. They also decided, however, that whether that right existed or not, it had been ended by the statute of Anne, and that the statute of Anne circumscribed the right to the limited time provided for by that statute.

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:

The Congress shall have power to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

That is the only foundation that exists for the patent laws of the United States, and it is the only foundation that exists for the 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.