Chapter XIV: Section 34: provides

That no action shall be maintained under the provisions of this act
unless the same is commenced within three years after the cause of
action arose.

Why not leave that the old two-year limit? What is the necessity for three years? There is no reason for that.

Then, look at the provision in section 35.

Mr. CHANEY. Is there a disadvantage in putting it three years?

Mr. O'CONNELL. Why should it be extended to three years?

Mr. PUTNAM. Is it not true that the present limitation is only for actions for penalties or forfeitures, whereas this is a general limitation on all actions, including civil actions for infringement, so that although it enlarges by one year the criminal action, it reduces the term that the complainant at present has in his civil action? This now applies to all actions. Did you notice that, Mr. O'Connell?

Mr. O'CONNELL. I think that the present provision relating to kindred actions of this kind is a two-year statute of limitations, and it has been found ample for a great many years, for all purposes, to protect patentees, inventors, and everybody else.

Look at section 35:

That in all recoveries under this act full costs shall be allowed.

That is to say, where the complainant recovers he must get from the defendant, and the court must allow the complainant, full costs. Let us assume a case where the defendant gets the bill dismissed. That is not a recovery. He does not get a recovery, but there is no provision giving the defendant in that case full costs. Oh, no. They are only careful of the complainant where he recovers; but where his action fails there is no provision giving the defendant full costs.

Mr. WEBB. You would strike out "recoveries" and insert "suits?"

Mr. O'CONNELL. If you want to do it that way. You will not be then giving one side any more than the other. But I think that provision should not be in there at all. I think the court should have full discretion in the award of costs, these actions being mostly equitable actions, and the general rule being that in a court of equity the awarding or denial of costs is in the discretion of the court.

I see no reason why the jurisdiction of the courts should be limited by a provision of this kind. I think it should be left to the courts to say in all cases whether costs should be awarded or withheld, and how much costs should be awarded; although I think there should be a provision to the effect that in the case of an action wilfully brought, and where there is no recovery--brought simply for the purpose of intimidation, where there is no reasonable ground for recovery, simply to get hold of the man's business and keep him from doing business--that there should be some provision in there giving a penalty against the complainant in such an action as that. I have only thought of that at this moment, but I think it is a good suggestion to make to the committee.

Gentlemen, I thank you for the time you have given me, and I have no more to say on the subject. I again ask, however, as I did at the outset, that on these contracts and on the question of the monopoly in the hands of this concern and its associates, the committee should take proofs such as may be necessary to determine what the situation is. All I ask on behalf of the independent manufacturers of automatic musical instruments in the United States is that we should have a fair show, that our business should have the same protection as any other business has, and that you gentlemen may not do anything which will help this great centralization and put it in the power or a monopoly to ruin our business.

Mr. PUTNAM. I understand that Mr. H. N. LOW is by agreement to speak next.

STATEMENT OF H. N. LOW, ESQ., OF WASHINGTON, D.C.

Mr. LOW. I appear for the manufacturers of the music rolls and of instruments operated by such rolls.

Mr. CURRIER. I understood that the music-roll people had had over two hours now.

Mr. LOW. Pardon me. My remarks will be very brief.

Mr. CURRIER. The talking-machine people are to have thirty minutes, and the committee can not sit here a very great while.

Mr. LOW. My suggestions will be very brief.

The ACTING CHAIRMAN. We have to adjourn in a little while, and the gentleman who preceded you exceeded his time.

Mr. LOW. Then to merely supplement the remarks of the gentleman who has preceded me, I ask leave of the committee to submit two more contracts, similar to the ones that he has submitted, with the Æolian Company in the carrying out of the agreement that we allege. My information is that that agreement now embraces practically the whole music-publishing trade, and those outside of that agreement are very small manufacturers, and the trust or combination is just about complete and ready for this legislation. I submit that this legislation is most dangerous, and that this pretended revision of the copyright law is a cloak for something that is very wrong.

[The contracts referred to by Mr. LOW are as follows:]

Memorandum of agreement made and entered into this 30th day of
April, 1902, by and between Chicago Music Company, of Chicago, in
the State of Illinois, party of the first part, hereinafter called
the publisher, and the Æolian Company, a corporation organized
under the laws of the State of Connecticut, and having a place of
business in the city of New York, in the State of New York, party
of the second part, hereinafter called the Æolian Company,
witnesseth:

That whereas the publisher is the proprietor of certain copyrights
for musical compositions and the owner of rights in copyrights for
other musical compositions; and

Whereas the Æolian Company is engaged in the business of
manufacturing and selling automatic musical instruments controlled
by perforated music sheets, and in manufacturing and selling
machines for playing keyboard musical instruments, which machines
are controlled by perforated music sheets, and in manufacturing
and selling perforated music sheets for such automatic musical
instruments and machines; and

Whereas the Æolian Company is desirous of acquiring the exclusive
right for such perforated music sheets in and to all the
copyrighted musical compositions of which the publisher is the
proprietor, or as to which he is the owner of any rights, and of
all those other musical compositions which may hereafter be
protected by copyright, and the copyrights for which or rights in
which may be acquired by him;

Now, therefore, the publisher, for and in consideration of the
premises, and of the sum of $1, lawful money of the United States,
to him paid by the Æolian Company, receipt of which is hereby
acknowledged, and for and in consideration of the true and
faithful performance by the Æolian Company of its covenants
hereinafter made, does hereby sell, assign, transfer, and set over
unto the Æolian Company the exclusive right for all perforated
music sheets of the kinds aforesaid in and to all the copyrighted
musical compositions of which the publisher is the proprietor, or
in the case in which he is the owner of any less rights, to the
extent of said rights, and does hereby covenant and agree with the
Æolian Company to give and secure to it the exclusive right in
like manner for all perforated music sheets of the kinds aforesaid
in and to all those other musical compositions which may hereafter
be protected by copyright, and the copyrights or rights in which
may be acquired by the publisher, except that if the Æolian
Company do not accept any price offered them within three months
after said offer, then the publisher may be at liberty to dispose
of the same otherwise.

And the publisher, for the consideration aforesaid, hereby
covenants and agrees, so far as it may be reasonably in his power,
to protect the Æolian Company against any claim of any third
person in respect to any and all copyrighted musical compositions
which may be involved in this agreement, and the copyright of
which may be owned by the publisher.

And the Æolian Company, for and in consideration of the premises,
hereby agrees that it will keep correct and true books of account
in which it will set down or cause to be set down entries of all
perforated music sheets made by it for playing the copyrighted
musical compositions owned or controlled by the publisher; that it
will on the 20th day of each and every January and July, during
the continuance of the manufacture and sale by it of the
perforated music sheets for playing such musical compositions,
render unto the publisher a correct and true statement of the
number, names, and other designations of such perforated music
sheets sold by it during the six preceding calendar months, and
that at the time of rendering each and every such statement it
will well and truly pay unto the publisher a license fee or
royalty of 10 per cent of the list prices made by the United
States publishers of the printed scores or copies of such musical
compositions, but never more than 50 cents for any one of such
perforated music sheets.

And the parties hereto mutually covenant and agree that nothing
herein contained is to obligate the Æolian Company to pay any
license fee or royalty upon such perforated music sheets as shall
be made by it in the United States and sold or shipped to any
other country, unless it shall have been decided by a court of
competent jurisdiction of such other country that the copyright
laws of that country shall be applicable to perforated music
sheets of the kinds herein mentioned.

And the parties hereto mutually agree and covenant that the term
"perforated music sheets" is not to be construed as covering the
controllers of those musical instruments which are generally known
as phonographs, or music boxes, or hand organs.

Anything herein to the contrary notwithstanding, at the expiration
of thirty-five years from the payment of the first license fee
hereinbefore provided, the Æolian Company shall not be entitled to
licenses under the copyrights thereafter acquired by the
publisher, but all licenses existing under copyrights theretofore
acquired by him shall remain in force until the expiration of the
terms of the copyrights under the terms hereinbefore provided.

During the existence of this contract, after the payment of the
license fee hereunder, the Æolian Company obligates itself to
prosecute diligently, at its own expense and by its own counsel,
in the name of the proprietors of the copyright, all infringers of
the rights granted to it, the Æolian Company.

And the parties hereto mutually covenant and agree that all the
provisions of this agreement shall be binding upon and inure to
the successors, executors, administrators, and personal
representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first
hereinabove written hereunto set his hand and seal, and the Æolian
Company has caused its name and corporate seal to be hereunto
affixed by its proper officer thereunto duly authorized.

CHICAGO MUSIC COMPANY, [SEAL.]
PLATT P. GIBBS.
THE ÆOLIAN COMPANY. [SEAL.]
By E. S. VOTEY, _Director_.

Signature of publisher witnessed by--

J. F. BOWERS,
PAULINE FLAHERTY.

Memorandum of agreement made and entered into this 30th day of
April, 1902, by and between Chicago Music Company, of Chicago, in
the State of Illinois, party of the first part, hereinafter called
the publisher, and the Æolian Company, a corporation organized
under the laws of the State of Connecticut, and having a place of
business in the city of New York, in the State of New York, party
of the second part, hereinafter called the Æolian Company,
witnesseth:

That whereas the parties hereto have, of even date herewith,
entered into an agreement whereby the Æolian Company is to have
the exclusive right for all perforated music sheets intended for
use in controlling automatic musical instruments or machines for
playing musical instruments, in and to the copyrighted musical
compositions of which the publisher is the proprietor or as to
which he is the owner of any rights, and in and to all those other
musical compositions which may hereafter be protected by copyright
and the copyrights or rights in which may be acquired by him; and

Whereas the parties hereto are desirous of entering into a further
agreement with reference to the matters and things expressed in
the above-mentioned agreement of even date herewith;

Now, therefore, the publisher, for and in consideration of the
premises and the sum of $1, lawful money of the United States, to
him by the Æolian Company in hand paid, receipt whereof is hereby
acknowledged, does hereby covenant and agree that no charge shall
be exacted from or be due from the Æolian Company for the
manufacture or sale by it, or any of its customers, of any
perforated music sheets of either of the kinds aforesaid, for
playing any of the copyrighted musical compositions which are
owned or controlled, or which shall hereafter be owned or
controlled in whole or in part by the publisher, until a decision
of the court of last resort in a suit which is to be instituted
against some manufacturer or user, other than the Æolian Company,
of such perforated music sheets for the purpose of testing the
applicability of the United States copyright laws to such
perforated music sheets, and not then unless such decision shall
uphold the applicability of the United States copyright laws to
perforated music sheets of the kinds aforesaid.

And for and in consideration of the premises the Æolian Company
hereby covenants and agrees to pay all proper expenses of
conducting said suit for the purpose of testing the applicability
of the United States copyright laws to perforated music sheets of
the kinds aforesaid, and that if the court of last resort shall in
such suit decide that the United States copyright laws are
applicable to such perforated music sheets, then and in such case
and from that time forward the Æolian Company will keep books of
account, render statements, and pay royalties, as provided by the
aforesaid agreement of even date herewith, but shall be free from
obligation to make payments for the past.

And it is mutually understood and agreed by the parties hereto
that neither party hereto is to be obligated in any way by any of
the provisions of this agreement, or of the aforesaid agreement of
even date herewith, until the Æolian Company shall notify the
publisher that a number of copyright owners, satisfactory to the
Æolian Company, have made similar agreements with said company.

And the parties hereto mutually covenant and agree that all the
provisions of this agreement shall be binding upon and inure to
the successors, executors, administrators, and personal
representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first
hereinabove written hereunto set his hand and seal, and the Æolian
Company has caused its name and corporate seal to be hereunto
affixed by its proper officer thereunto duly authorized.

CHICAGO MUSIC CO., [SEAL.]
PLATT P. GIBBS, _President_.
THE ÆOLIAN CO. [SEAL.]
By E. S. VOTEY, _Director_.

Witnessed by--

PAULINE FLAHERTY.
J. F. BOWERS.

THE ÆOLIAN COMPANY,
_New York, May 5, 1902._

The CHICAGO MUSIC COMPANY,
_Music Publishers, Chicago, Ill._

DEAR SIRS: Pursuant to the provision of the agreement granting us
the exclusive right under your United States copyrights for all
perforated music sheets intended for use in controlling automatic
musical instruments and machines for playing musical instruments,
we hereby notify you that a number of copyright owners
satisfactory to us have made with us agreements similar to our
agreement with you. From this date, therefore, our agreement goes
into effect.

Looking forward to profitable and pleasant business relations, we
remain,

Yours, truly,

THE ÆOLIAN COMPANY,
E. R. PERKINS,
_General Manager_.

Mr. CHANEY. I would like to have this gentleman who has just spoken to us (Mr. Low) submit a typewritten statement relating to the various sections in the bill to which he objects, and setting out his objections.

The ACTING CHAIRMAN. Without objection that privilege will be accorded to him.

WASHINGTON, D.C., _June, 12, 1906_.

_To the Committees on Patents of the United States Senate and
House of Representatives._

GENTLEMEN: I file herewith in typewriting specific suggestions for
the amendment of the said bill, in pursuance of the resolution of
the joint committee, passed on the 8th day of June, 1906; these
remarks or this statement to follow in the record the exhibit
contracts which I presented to your committees at that time.

Very respectfully,

H. N. LOW.

SUGGESTIONS AS TO THE AMENDMENT OF THE PENDING COPYRIGHT BILL.

_To the Committees on Patents of United States Senate and House of
Representatives._

GENTLEMEN: If the allegations which have been made before the
committee, and not denied, and which can not be successfully
denied, that there has been effected a combination in the nature
of a trust to secure practically all of the commercial business of
this country in the manufacture, sale, and use of mechanical
records or controllers for the production of music, etc., by
mechanical means are true, then a very serious situation confronts
you.

The agencies relied upon to make said combination of publishers
and manufacturers successful are--

1. The contracts which have heretofore been entered into in
anticipation of this legislation, four of which contracts have
been filed in connection with the remarks of Mr. O'Connell and of
Mr. Low.

2. New legislation of the character proposed by this copyright
bill and especially by paragraph (g) of section 1.

In one of the contracts referred to, dated April 30, 1902, between
the Chicago Music Company and the Æolian Company, it is provided--

"During the existence of this contract, after the payment of the
license fee thereunder, the Æolian Company obligates itself to
prosecute diligently, at its own expense and by its own counsel,
in the name of the proprietors of the copyright, all infringers of
the rights granted to it, the Æolian Company."

In the other contract of the same date and between the same
parties, a facsimile of which has been filed with your committees,
it is provided--

"That no charge shall be exacted from or be due from the Æolian
Company * * * until a decision of the court of last resort in a
suit which is to be instituted against some manufacturer or user
other than the Æolian Company of such perforated music sheets for
the purpose of testing the applicability of the United States
copyright laws to perforated music sheets, and not then unless
such decision shall uphold the applicability of the United States
copyright laws to perforated music sheets of the kinds aforesaid.
And for and in consideration of the premises the Æolian Company
hereby covenants and agrees to pay all proper expenses of
conducting said suit," etc.

Such test suit was instituted entitled The White-Smith Music
Publishing Company _v._ The Apollo Company by and at the expense
of the Æolian Company, the real complainant, and decided against
the Æolian Company, the holding of the court of last resort, the
United States circuit court of appeals for the second circuit,
being that such perforated music sheets were not infringements of
the copyrights of the nominal complainant.

Although defeated so far, it is not reasonable to suppose that the
combination of the Æolian Company and its "number of copyright
owners satisfactory" to that company would rest without further
effort to make effective for profit the agreement into which they
had entered. The only remaining means was by new legislation, and
I submit that the aim and end of the pending bill is to be a
substitute for that favorable decision of a court of last resort
which the Æolian Company failed after strenuous efforts to obtain.

Certain provisions of the bill here and there--for example, the
lengthening of the copyright term--have attracted to the support
of the bill various interests who are totally indifferent one way
or the other to the question of perforated music sheets or
phonographic records, but I submit that these other provisions are
more or less unimportant, do not improve the present law, and most
of them would never have been heard of except for the desire of
the special interests above referred to to obtain new legislation
as to the mechanical producers of sound.

In the spring of 1904 attempt was made by this same combination to
obtain the legislation desired by the insertion of a specific
provision in the law to substantially this effect:

"_Provided_, That in the case of a musical composition authors or
their assigns shall have the exclusive right to use said copyright
musical compositions in the form of perforated rolls for playing
attachments, copyright on which music rolls may be obtained by
said author or his assigns in the same manner as now provided by
law for copyright on musical compositions."

I have not been able to discover that this proposed amendment of
the law was ever introduced in the form of a bill into either
House of Congress. It may have been. But I am informed that it was
formulated for the purpose of introduction as a bill in Congress
in the terms above set forth.

It was found impracticable to obtain the new legislation in such
specific and undisguised form, and resort is now had to a
pretended revision or codification of the entire copyright law,
for which there is not the slightest necessity and which will
inevitably give rise to a great amount of litigation before the
meaning and effect of the words used in the new law can be legally
understood, for the sole purpose that the Æolian Company may have
with its contracting publishers and copyright owners "pleasant and
profitable business relations," as expressed in the notice from
the Æolian Company to the contracting publishers, dated May 5,
1902 (a facsimile of which I have filed with your committees).
This notice states "a number a copyright owners satisfactory to us
have made with us agreements similar to our agreement with you."

Although the matters above referred to have been opened up before
your committee in the remarks of Mr. O'Connell, I have felt it my
duty to give my view of the matter in brief form, both in
confirmation of what Mr. O'Connell has said, and for the purpose
of indicating that the bill itself and proposed amendments thereto
must be scrutinized by your committees with the greatest care
before it is reported.

As to amendments of the bill, I see no alternative to the striking
out of paragraph (g) of section 1. If the combine exists as is
alleged it is obvious that the patents, inventions, machinery, and
plants of all those manufacturers of mechanical records who are
not inside of the combine, that is to say, of all the
manufacturers of perforated music rolls excepting the Æolian
Company, and all the manufacturers of talking machines and records
excepting the two companies who are alleged to be members of
another combination or trust for the exclusive manufacture of such
machines, and of all without exception of the manufacturers and
users and sellers of pianos and organs which are operated by
perforated music sheets, will be rendered practically useless, the
owners of such manufactories will be put out of business, and
their workmen will have their field of labor and bread taken away.

If this will be the result of the bill, and especially of the
paragraph section 1 (g), the bill is most unjust and class
legislation of the worst type. And that is just what the bill is
intended to be, but I am thankful that its object can not be
concealed.

It is no answer to the above objection to say that the bill
provides only for the future. So do the contracts between the
Æolian Company and its "satisfactory number" of copyright owners.
The said contracts are unlimited as to time, having been signed by
the great bulk of the trade (meaning thereby almost all of the
great music publishers of the country), they leave outside of the
combination only small publishers, and the contracts provide as
follows:

"Now, therefore, the publisher, for and in consideration of the
premises, and of the sum of one dollar, lawful money of the United
States, to him paid by the Æolian Company, receipt of which is
hereby acknowledged, and for and in consideration of the true and
faithful performance by the Æolian Company of its covenants
hereinafter made, does hereby sell, assign, transfer, and set over
unto the Æolian Company the exclusive right for all perforated
music sheets of the kinds aforesaid in and to all the copyrighted
compositions of which the publisher is the proprietor, or in the
case in which he is the owner of any less rights, to the extent of
said rights, and does hereby covenant and agree with the Æolian
Company to give and secure to it the exclusive right in like
manner for all perforated music sheets of the kinds aforesaid in
and to all those other musical compositions which may hereafter be
protected by copyright, and the copyrights or rights in which may
be acquired by the publisher, except that if the Æolian Company do
not accept any piece offered them within three months after said
offer then the publisher may be at liberty to dispose of the same
otherwise."

From the foregoing we arrive at this conclusion, and there is no
escape from it, that there is in existence a combination whose
design and effect upon very important business and laboring
interests of this country will be injurious and unlawful if the
bill should be passed as proposed, which combination is of
unlimited duration as to time, and which combination will control,
for the purpose of producing perforated music sheets, all the
copyrights or rights of production hereafter for such unlimited
duration of time which may be acquired by the great bulk of the
trade (music publishers) of this country. Your committees will
see, therefore, that the bill provides for the profitable future
of the members of the combination without limit as to time.

The result of this will be threefold:

1. The Æolian Company will secure for itself practically the
entire business of the United States in the manufacture of
perforated music sheets, and will be in a position to dictate the
prices for such sheets to the trade, including the manufacturers
and sellers of pianos and organs operated by said sheets as well
as the sellers of the sheets alone, and to raise the price to the
public generally for such sheets.

2. The publishers who have contracted with the Æolian Company to
give the latter all the rights which the publishers have or may
have in copyrighted music will receive from the Æolian Company
certain royalties, which royalties will either be clear profit to
the publishers or will be less than any extra royalties which the
publishers will pay to the composers. It is practically certain
that in the long run the composers will get no more royalties than
they now receive, for the composer, for his own advantage in
obtaining a large sale of his works, must go to one of the large
publishers of music, and will be compelled by such publisher to
accept in full payment of his copyright just such a royalty as he
now gets under existing law, and all the extra profits which can
be mulcted from the public under section 1 (g) of the bill will be
divided between the members of the combination.

3. The public will foot all the bills without any more advantage
to themselves than they have under existing law.

The assertion made in support of the bill, that it relates only to
the future, is completely met with the reply that the bill does
not provide for the future of anyone who is outside of the
combination.

If the existing copyright law is bad or insufficient and anything
like a revision of or a codification of the copyright statutes in
a new law must be made in the interests of justice, let it be
done. But let care be taken that you do not do injustice. If a new
copyright law is to be enacted, and the pending bill is to be the
foundation of such a law, the practical question is, how is it to
be amended in order that it may not cause the evils above referred
to.

Mr. Putnam in his introductory remarks indicated that your
committees would find evidences of "selfishness" in the bill. He
is undoubtedly right. It is, however, much more far reaching in
this respect than Mr. Putnam had any idea of. It is extraordinary
that the conference which advised Mr. Putnam adopted such radical
legislation as is proposed in section 1 (g) without inviting the
attendance at the conference of a single person interested
adversely to this legislation. In fact it would appear that such
persons were purposely kept in ignorance of what the conference
was doing.

But I do not think that the selfishness of the interests which are
opposed to the said new legislation, and who are now fully aware
that it is proposed, extends beyond a rightful effort to prevent
their own extinction.

In my opinion the manufacturers of mechanical music controllers or
records are willing to pay a fair and reasonable royalty to
composers of music which they use, or to other owners of
copyrights for musical compositions, but this must be provided for
otherwise than by an enactment which will give rise to the evils
attending the said paragraph, section 1 (g) of the bill. That
paragraph should be eliminated and other parts of the bill
corresponding with this paragraph, and there should be substituted
for it, probably at some other more appropriate part of the bill,
a provision like the following:

"Any person, firm, or corporation who shall make, use, or sell, or
let for hire, any device, contrivance, or appliance especially
adapted in any manner whatsoever to reproduce to the ear the whole
or any material part of any work published and copyrighted after
this act shall have gone into effect, shall pay to the author or
composer of such work a fair and reasonable royalty to be
determined according to the market price for such or similar
royalties.

"And the author or composer of the work so used shall have the
same remedies for the recovery from such person, firm, or
corporation of such royalty or royalties as is provided in this
act for the recovery of damages for the infringement of copyright.

"And after the amount of such royalty or royalties shall have been
ascertained and become due by express contract between the
parties, or shall have been ascertained and adjudged to be due by
any circuit court of the United States, and is not paid, then the
author or composer shall have the same remedy by injunction
against such person, firm, or corporation, as is provided in this
act in cases of the infringement of a copyright."

It is believed that such an enactment would give to the composers
who have appeared before your committees all the rights and
remuneration which is due them, and at the same time will defeat
the unlawful combination which exists and is hereinbefore referred
to.

I believe that it will not be at all difficult to arrive at the
just value of such royalties, and in almost every instance they
would be settled by contract between the owner of the copyright
and the maker of the mechanical appliance for producing the music.
In the case of a composition of any value the composer will
dispose of it for an agreed-upon royalty to some music publisher
in the usual way. He will then dispose of his right to the
composition for reproduction by mechanical means to some
manufacturer of such mechanical means for a royalty agreed upon.
If any other such manufacturer, not in contractual relations with
the owner of the copyright thereafter makes use of the
composition, the amount of the royalty for which the owner of the
copyright has contracted will aid in determining what royalty is
fair and reasonable and is to be paid by such other manufacturer.
I suppose that in some cases litigation may be necessary to arrive
at the amount of the royalty, but not more than is inevitable in
human affairs. It is not to be supposed that a manufacturer will
resist the payment of the royalty for a musical composition which
he has utilized and pay to the complainant the cost of litigation
rather than make a fair settlement upon terms which are well
settled, or will soon become well settled under this act, in the
trade.

A provision like that above suggested is analogous to, and appears
to be quite similar in its effect to, the compulsory-license
provision of some of the foreign statutes. For instance, in the
law of the Dominion of Canada, lately enacted, in 1903, we have
the following:

"7. (_a_) Any person, at any time while a patent continues in
force, may apply to the commissioner, by petition, for a license
to make, construct, use, and sell the patented invention, and the
commissioner shall, subject to general rules to be made for
carrying out this section, hear the person applying and the owner
of the patent, and if he is satisfied that the reasonable
requirements of the public in reference to the invention have not
been satisfied by reason of the neglect or refusal of the patentee
or his legal representatives to make, construct, use, or sell the
invention, or to grant licenses to others on reasonable terms to
make, construct, use, or sell the same, may make an order under
his hand and seal of the patent office requiring the owner of the
patent to grant a license to the person applying therefor, in such
form and upon such terms as to the duration of the license, the
amount of the royalties, security for payment, and otherwise, as
the commissioner, having regard to the nature of the invention and
the circumstances of the case, deems just."

I instance this foreign law to show that under a system of
jurisprudence exactly like our own it has been found best to limit
rights heretofore granted in the most exclusive form, and provide
for compelling the owners of such rights to deal reasonably and
fairly with the public. This Canadian law relates to exclusive
rights to inventions under letters patent, where the ascertainment
of what is a just license fee or royalty is always more or less
complicated and difficult. In the case of copyrights much simpler
conditions prevail, the value of musical compositions are more
easily measurable and there would be far less difficulty in
arriving at a fair royalty by a contract between the parties or by
arbitration, or, in the last resort, by the judgment of a circuit
court. I have mentioned a circuit court merely for purpose of
illustration. It would probably be more convenient to confer this
jurisdiction on a United States district court.

It seems to me that under the conditions which confront your
committees, there being on the one hand a desire to recompense
musical composers, and on the other hand the necessity of
defeating the unlawful combination which will have entrenched
itself most securely if the bill should become a law including the
objectionable paragraph which I have discussed, an amendment of
the bill in some such way as above indicated is inevitable.

SPECIFIC AMENDMENT OF THE BILL.

I submit that in the interest of the public it is far better to
correct any evil in the existing copyright law, which was pretty
thoroughly revised not very many years ago, than to pass a
revision of the law which uses so many new terms and words which
have not received judicial interpretation, and which bill
evidently requires itself revision and amendment in almost every
section. It requires such amendment in detail in the first place
to eliminate those matters which have been embodied in the bill
for the purpose of most thoroughly carrying out the provisions of
section 1 (g), upon which I have already commented. If it is
necessary to eliminate the paragraph specified, it is also
necessary to revise the bill in many other sections where
corresponding matter appears.

In the second place, the bill requires amendment as to the term of
copyright proposed, as to the damages for infringement, as to the
effect which the certificate of the filing of the entry shall
have, as to the way in which and the terms in which the notice of
copyright shall be given, and as to broad and uncertain
expressions which are found in many sections, which can have no
good effect and which will only be productive of uncertainty,
confusion, and litigation.

I am informed that a substitute bill will be submitted to your
committees in the nature of specific amendments to the existing
law to cure any evils which may exist therein and, among other
things, to give reasonable compensation to authors or composers
for the use of their works by the manufacturers of automatic
mechanical reproducing devices. I believe that it will be
preferable to thus amend existing law, leaving the great bulk of
the law in those words and terms and provisions which there is no
necessity of changing and which have become well understood by
years of judicial interpretation.

I will however proceed to discuss the pending bill and point out
the specific amendments which appear to be necessary in the
interest of the public, both as to clearness and certainty of
expression and as to the relative just claims of the author and of
the public.