Chapter XL: Section 4966: of the Revised Statutes covers that ground already, and

provides that copyright may cover the performance of dramatic work. But I hold, and I hold without the slightest hesitation, that that whole section 4966 is unconstitutional. No court has ever held it to be constitutional, and any attempt on the part of Congress to grant a copyright to enable a man to monopolize the rendering of a play on the stage is preposterous. The fathers who went to Philadelphia in 1787 had more weighty business on hand than to give to playwrights an added grip on the monopoly of their productions in addition to the common-law grip that they already had. At that time and now the author of a play is abundantly protected under the common law, but Congress in 1870 provided an additional grip for the playwright under the copyright statute, in face and eyes of the fact that the Constitution under which they were acting was confined to writings. But if I do not remember wrongly (and I think the gentleman from North Carolina will agree with my recollection) about 1870 Congress did several things that could not be fully vindicated under the Constitution.

Mr. WEBB. Yes.

The CHAIRMAN. Mr. Walker, have you in mind the exact language of the Constitution?

Mr. WALKER. Certainly.

The CHAIRMAN. Will you not put it on the record at this point?

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

"F. To publicly perform a copyrighted musical work, or any part
thereof."

Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and I would like to ask Mr. Victor Herbert whether, during the last few years, he has with his orchestra performed copyrighted music of other composers, of which copyrighted music he purchased and had the sheets there for the performance?

Mr. HERBERT. With their permission.

Mr. WALKER. Did you get any other permission than the purchase of the sheets?

Mr. HERBERT. That is included.

Mr. WALKER. Did you get any special permission to perform?

Mr. HERBERT. The permission is written on the sheet.

Mr. WALKER. What is written on the sheet?

Mr. HERBERT. Permission for performance.

Mr. WALKER. It is on the sheet, is it?

Mr. HERBERT. Yes.

Mr. WALKER. In all cases?

Mr. HERBERT. That is, on the corner of the sheets--"permission to perform."

Mr. WALKER. Very well, if in his case it is there. But this is the situation of the law at the present time: If one of you gentlemen goes to church and joins in the singing of a hymn that is the subject of a copyright, you are liable to a penalty of $100 for the first time you join in that singing, and a penalty of $50 for every subsequent time, unless you yourself bought that particular hymn book at first hand from the publisher. That is the law now.

Mr. SULZER. Suppose the church bought it?

Mr. WALKER. Then you are liable for the penalty.

Now, that section 4966 has been violated more than a million times since Congress enacted it in 1897, and Congress does not notice the difference; and I take it that it has taken no steps to vindicate its dignity.

Mr. BONYNGE. There is a bill pending before our committee on that proposition.

Mr. WALKER. Yes; I understand about that pending bill, but I am speaking of the law as it now exists. So that, gentlemen, I take the ground that any legislation that gives to the composer of any music the exclusive right to publicly perform that music is outside of the Constitution, because a copyright on a writing can be infringed only by writing; and when some gentleman or some lady stands up in a church and sings a song out of his or her mind he or she is not doing anything about any writing.

Clause G is one to which I direct attention. That clause G is the one that is directed against all music-playing instruments. The gentleman who preceded me did not make entirely clear the nature of this beautiful instrument that he showed the committee, which he stated was capable of rendering music. What he showed to the committee was a perfectly plain steel cylinder. When you look at it you can see no----

Mr. CURRIER. Most members of both committees are perfectly familiar with that instrument.

Mr. WALKER. Very well; I am very glad to hear that. There are a very great many persons who are not.

Mr. CURRIER. That instrument was exhibited before the House committees in the Fifty-seventh Congress.

Mr. WALKER. Oh, yes--then you know all about it. There are a great many gentlemen who have not been informed about it, and I thought I would mention it.

Aside from the matters of constitutional consideration--I have twelve minutes left, and during those twelve minutes I wish to devote myself to some criticisms of this bill which have nothing to do with the constitutional questions that I have been discussing. Those criticisms are equally applicable whether the bill is to be framed and enacted on the basis of "works," or whether it is to be framed and enacted on the basis of "writings." And in any view that anybody may take about the scope of the copyright, the criticisms to which I am now calling attention deserve consideration.

The first one is in section 13, which is one of those sections that is intended to give the American manufacturer the monopoly of manufacturing copyrighted books.

That purpose is a good one, but that section is not well drawn to effect that purpose, because the gentlemen who drew the section were not thoroughly acquainted with the art of printing in its modern development; and the suggestions I have to make to the committee are with a view to strengthening that section so as to close up some loopholes that the authors of the section left wide open.

The language is:

That of a printed book or periodical the text of the copies
deposited under section 11 above shall be printed from type set
within the limits of the United States, either by hand or by the
aid of any kind of typesetting machine, or from plates made from
type set within the limits of the United States, or if the text be
produced by lithographic process, then by a process wholly
performed within the limits of the United States.

The trouble there is that the author of that section supposed that the lithographic process was the only other process of producing a book besides printing it from type or a streotyped plate. Now, the lithographic process is not the only process. There are modern processes of photomechanical printing that have nothing at all to do with lithography, that are much cheaper than lithography, and that do all that lithography does. As an illustration, those beautiful illustrated supplements that come out every week with the New York Tribune on Sunday are supposed by some gentlemen to be lithographs. They are not. They are printed on aluminum cylinders at great speed and with great cheapness, and they are very much cheaper and very much better than can be done by the old art of lithography.

Mr. CURRIER. Could not that be said to be a plate within the meaning of this act?

Mr. WALKER. No; because a stereotype plate is meant. But that is very easily corrected. I would suggest that for the words "by lithographic process" be substituted "any other process." Then that covers lithography and every other possible process. Then, on the 21st line of that page, I would suggest the substitution of "illustrations" for "lithographs," because illustrations may be made otherwise than by lithography.

The gentleman who delivered himself upon that particular subject upon behalf of the American mechanic was uninformed about the matter, and complained that a large number of printed illustrations were being imported into this country that would be kept out under the lithographic clause if you put the lithographic clause in strong enough. Now, he is entirely mistaken about that, because the very things that are being imported and that he complains of are not made by lithography at all, but by another process.