Chapter XXXVIII: Section 60: , page 38, line 15, change period to comma, and add: "or (1)

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.

The Constitutional Convention wisely provided that if the American people are to grant a monopoly in an intellectual production the man who makes that intellectual production shall give it to the American people; and he gives it to the American people by first furnishing them the fullest information of its character, in the case of a patent, or in the case of a copyright he gives it to the American people by consenting to the terms upon which it was issued, namely, that it shall be free after the expiration of the limited time for which it was granted. Further than that, in taking out a copyright, or in taking out a patent, the man consents that the copyright shall be confined to his writing, and shall not extend to any other form of expression of his intellectual idea.

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

Mr. CHANEY. Just a moment: It has not occurred to me that this is not either a question of continuity of property or a question of the quality of the property. It is simply a question of just to what extent people are to be given the control of their own writings, and as to just through what different forms they will be able to trace their property.

Mr. WALKER. That is the question, and that is the exact question which I am going to address myself to now.

Mr. CHANEY. Very well.

Mr. WALKER. The case of the "Trade-Mark Cases" was decided by the Supreme Court of the United States in 1880, and it is reported in 100 United States Reports, at page 94. In that case the owners of certain collocations of words which they were using as trade-marks sought to sustain the validity of their trade-mark under the copyright law, holding that those words constituted writings which were copyrightable and which had been copyrighted.

The Supreme Court unanimously decided that the statute which they invoked, which statute was abundantly broad enough to cover that provision, was unconstitutional, because although these collocations of words were writings in the literal sense they were not writings within the sense of the Constitution. In so deciding, the Supreme Court narrowed down the meaning of the word "writings" instead of extending it, by holding that the Constitution gives a monopoly not to writings in general but only to such writings as have some literary character and permanent value in themselves. This is the language of Justice Miller:

And while the word writings may be liberally construed, as it has
been, to include original designs for engravings, prints, etc., it
is only such as are original and are founded in the creative powers
of the mind. The writings which are to be protected are the fruits
of intellectual labor, embodied in the form of books, prints,
engravings, and the like.

The case which the Supreme Court had before it on this subject next is the Sarony case, decided in 1883, and reported in 111 U.S., page 58.

Mr. CHANEY. We had that yesterday.

Mr. WALKER. In that case Mr. Sarony sought to sustain the validity of a copyright upon a photograph of that then very ornamental gentleman, Oscar Wilde. It turned out that in this picture which Mr. Sarony personally took of Oscar Wilde, in his esthetic costume at the time he captured the hearts of the American women by his highly ornamental appearance [laughter], Mr. Sarony had personally posed Oscar Wilde, so as to give him a peculiar beauty, which might not have been developed by the ordinary photographer; and the Supreme Court of the United States sustained the validity of that particular copyright upon the particular ground that Mr. Sarony put particular skill in the posing of the man so as to produce a particularly artistic effect.

But if I should go into a photograph gallery and have somebody pose me who did not have that skill--and also because the subject would not admit of it, and would not produce any particularly attractive effect--and the attempt should be made to copyright that photograph, he would go right up against the decision of the Supreme Court in the Sarony case, and he would be told that the copyright was invalid, because it did not involve any intellectual effort in its production.

Mr. CHANEY. I think your picture would influence the committee quite as much as Oscar Wilde's. [Laughter.]

Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for himself; and I am living still.

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

Mr. WALKER. Thank you.

The next case, and the last case in which these matters have been before the Supreme Court, is the case of Higgins _v._ Keuffel, decided by that tribunal in the October term of 1890, and reported in 140 U.S.

In that case a copyright had been issued, in strict conformity with the copyright law of 1874, upon a label used for manufacturing purposes, as a label on a bottle or a package. There was no doubt whatever but what the copyright was in strict conformity with the statute, but the Supreme Court held that the statute was unconstitutional, because although the label was a writing, it was not a writing in the sense that the Supreme Court had defined that word in the Trade-Mark cases. Here Justice Field delivered the opinion of the court, and he said:

The clause of the Constitution under which Congress is authorized
to legislate for the protection of authors and inventors is
contained in the eighth section of Article 1, which declares that
"the Congress shall have power to promote the progress of science
and useful arts by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries."

This provision evidently has reference only to such writings and
discoveries as are the result of intellectual labor. It was so held
in the Trade-Mark cases, where the court said that "while the word
'writing' may be liberally construed, as it has been, to include
original designs for engravings, prints, etc., it is only such as
are original and are founded in the creative powers of the mind."

In the year 1888, a suit was brought in the United States circuit court for the eastern district of Massachusetts for the purpose of subjecting a perforated roll like one of these [exhibiting] to the domain of a copyright upon a sheet of music which had been lawfully and regularly copyrighted. That case was elaborately litigated, and was the subject of argument on both sides before his honor, Judge Colt, then the circuit judge and now the chief judge of the circuit court of appeals for the first judicial circuit.