Chapter XLVIII: Section 19: , on the other hand, relates merely to now existing (2)

It may be deemed proper and it will not be denied that it would be
just that a composer of a musical composition of this class who
causes it to be embodied in the form of perforated roll, and who
can derive a revenue from it practically only in this form, should
be considered in the light of both composer and arranger, and as
entitled to obtain original and independent copyright of the
perforated roll, so as to control the composition absolutely in
this form.

It is believed that it will not be difficult to frame a provision
of the statute to do justice to this class of composition, and
which shall not trench upon the natural equity of the perforated
roll arranger for other musical compositions, or upon the natural
right of the public to derive the use of the automatic reproducing
devices upon ordinary musical compositions, without requiring the
consent of or paying tribute to the composer.

_4. As to duration of copyright._--The bill before your committees
proposes a remarkable extension of the period of copyright beyond
anything heretofore granted. This is believed to be contrary to
sound public policy and of doubtful constitutionality.

The Constitution expressly limits the power of Congress in respect
to their copyright protection to granting such protection "for
limited periods." The term "limited" can have only a relative
meaning, and the obvious meaning is limited with respect to or in
comparison with the period during which the public will have
desire or use for the copyrighted work. It is contemplated,
evidently, that in compensation for the protection which the
statute gives the composer for a limited period the public shall
derive the unqualified use and benefit of the work for a remaining
period. If there is no remaining period, the consideration for the
protection has failed.

It needs no statistics to establish to the common knowledge of the
committee that not one book in ten thousand has any commercial
value fifty years after its publication. It will probably be safer
to say that not one published work in a hundred thousand has any
life after fifty years. If, therefore, the author is given the
monopoly for fifty years, the public has nothing left to
compensate it for that monopoly and protection.

Not one work in a million endures so as to have any value after
one hundred years.

But the bill proposes, as to the great bulk of copyrightable
matter, that the period of copyright shall be substantially one
hundred years--fifty years after the death of the author.

It is respectfully submitted that this transcends the intention of
the constitutional limitation, and that the public would, by such
an enactment, be deprived of substantially all the compensation
which the Constitution intended should be reserved to it in return
for the copyright protection granted the author.

Whether the constitutional limitation should or should not be so
strictly applied, it seems beyond doubt that sound public policy
forbids thus bartering away all the public benefit arising from
the free right of publication after the expiration of copyright.

There is a second objection to the particular form in which the
bill gives this extended copyright term. There does not appear to
be any logical relation between the copyright protection and the
duration of the life of the author. The privilege or protection
granted is in no respect personal, except as to the revenue which
may be derived.

There does not appear any reason why the work of a mature writer
of 60, presumably capable of giving to the public compositions of
peculiar value, especially if they relate to scientific or
philosophical subjects, should receive less protection from his
copyright than would be granted to a youth of 20, whose immature
productions would obtain the protection of a presumably long life
before him (during which he would often regret his immature
publication).

Furthermore, the particular form or provision of the bill with
respect to joint authors (line 24, p. 14; line 26, p. 15), when
corrected to cure the obvious error in the phraseology and express
the doubtless intended meaning, opens the way most obviously for
practical fraud upon the public. An aged author, by associating
with himself in a nominal yet unimpeachably colorable way a
youthful assistant, and obtaining copyright in their names as
joint authors, will secure protection for his work concurrent with
the life of the junior and fifty years thereafter, instead of
concurrently with his own nearly ended life and subsequent fifty
years.

It is obvious that joint authorship will become exceedingly
popular if this paragraph of the bill is retained; and by the
expedient of triple or quadruple authorship the chances of a long
period will be greatly increased.

NOTE.--The very obvious error above indicated--line 24, page 14,
line 2, page 15--has probably received the attention of the
committee. The sentence supplying the connection from the
commencement of section 18 now reads: "That the copyright secured
by this act shall endure * * * in the case of joint authors,
during their joint lives and for fifty years after the death of
the last survivor of them." The gap which is left between the
dates of death of the first and last dying of the joint authors is
uncovered by the copyright under this form of statement. That is,
the copyright would lapse upon the death of the first dying--the
end of their joint lives--and revive at the death of the last
survivor. The correction is obvious. Make the sentence read: "In
the case of joint authors, until the death of the last survivor of
them and for fifty years thereafter."

It is believed that the present term of copyright should not be
disturbed unless to shorten it. Twenty-eight years, with a
possible extension of fourteen, exceeds the actual life of a great
majority of copyrighted publications and leaves the public nothing
for its concession of temporary monopoly to the inventor; but it
is, perhaps, a fair average, and at least it has caused no serious
complaint upon either hand.

An exception should, however, be made in respect to any protection
which may be given to anyone, whether composer or arranger, with
respect to the automatic reproducing devices--such as perforated
rolls--associated so closely, as these devices necessarily are,
with manufacture as distinguished from publications and with
inventions as distinguished from literary or artistic works. The
duration of the patents, whose owners must pay tribute to the
holders of any form of copyright upon the perforated rolls, are
granted only seventeen years' monopoly in which to derive all
compensation for their inventions.

The copyright protection, if any, granted in any form upon
perforated rolls should not exceed the term of patents--seventeen
years.

_5. Verification of authorship and ownership should be
required._--All our copyright laws hitherto have been
unaccountably lax in respect to the requirements for making prima
facie title to copyright by virtue of authorship or
proprietorship. It has only been necessary, and the present bill
only makes it necessary, that the applicant for registration under
the copyright statute should state, without verification of any
sort, that he claims as the author or proprietor, as the case may
be. So singularly loose is the requirement that the applicant is
not even required to declare that he is the author or proprietor,
but only to state that he claims as author.

How easily a fraudulently disposed claimant will satisfy his
conscience in stating that he claims as the author, when he might
hesitate to declare that he is, in fact, the author; and how much
more easily one who conceives that he has a shadow of right to
ownership will make the like statement that he claims as the
proprietor when he would hesitate to declare that in fact he is
the proprietor, is obvious without comment.

But it is certainly obvious that so vast and important a right as
that conferred by the copyright statute should not be vested and
given prima facie validity in anyone who has merely the effrontery
to declare even that he is the owner or that he is the proprietor.

Why should less be required of the claimant to copyright than is
required of the claimant to patent right?

The applicant for patent must make oath that he believes himself
to be the first and original inventor, and his oath must also
declare affirmatively the existence of all of the other conditions
precedent to his right to obtain a patent. Why should not the
author claiming copyright be subject to a similar requirement?

The assignee of an inventor desiring a patent to issue to himself
must file in the Patent Office an instrument in writing, signed by
the inventor, conveying to the assignee the whole or such portion
of the interest as it is desired to have appear in the name of the
assignee upon the issue of the patent, and must in addition
expressly request that the patent so issue to the assignee. Why
should less proof be required of one claiming copyright as
proprietor?

It seems that no argument is necessary to enforce these
suggestions. Under the present law and under the proposed bill any
publisher obtaining possession of an author's manuscript under any
color of right not involving him in larceny by reason of the
possession may proceed to put the work in print and make
application for copyright, not even averring that he is the
proprietor, but stating that he claims as proprietor. The
copyright certificate will issue, and his title to the copyright
will be prima facie established by the proceedings which he takes
pursuant to the statute and the action of the copyright office
therein; and the author, who may be ignorant of the proceedings,
who may have only entered upon negotiations with the publisher
without any intention of accepting the offers which may have been
made, finds himself in the position of being obliged to contest a
prima facie right on the part of the publisher to the copyright in
his work, with the alternative that if the publisher's title is
not conceded to be good the author's right is lost by publication.

How many authors have succumbed to the embarrassment of just this
situation, deliberately created by greedy publishers, will never
be known, but it is time that the statute which offers such
inducement to greedy human nature to perpetrate frauds of this
character should be remedied, and that the prima facie right
acquired under copyright statutes should have behind it at least
the support of the oath as to authorship and of an instrument of
assignment by the author to the party claiming as proprietor.

_6. Penal provisions._--It is respectfully submitted that the
penal provisions of this statute are grossly disproportionate to
the offenses or injuries to which they are directed, and obviously
provocative of blackmail and coercion, and in some instances
clearly unconstitutional and unenforceable. No attempt will be
made here to discuss all of these provisions, but attention will
be directed only to those which bear upon the particular matter on
behalf of which this presentation is made, namely, automatic
reproducing devices; and without discussion it is suggested as too
obvious for argument that a penalty of $10 for each and every
infringing copy of a perforated roll found in the possession of
the alleged infringer, his agents or employees, is grossly
excessive, in view of the selling price of such rolls, which
seldom exceeds $3, and probably averages not far from $1.

Severe penalties are only proper where the offense complained of
can not be committed by accident or inadvertence, and where there
can be no possible mistake as to a given act constituting the
offense. In any case in which there might be room for difference
of opinion, or where the offense might be committed unwittingly,
such penalties are grossly improper.

But when the situation is such that the party entitled to complain
or who might allege injury by reason of the alleged offense is to
be the beneficiary of the penalty, and especially, as in the
present bill, is to absorb the entire penalty, it is obviously
contrary to reason and good morals to make the penalty materially
exceed the damage, because there is thereby created a motive on
the part of the person alleging injury to promote and encourage
surreptitiously the alleged offense until it has grown to large
proportions, so that he may thereby reap a greater benefit from
the trespass than he could possibly have reaped otherwise from the
property trespassed upon.

In the case of the perforated rolls, all these objections to
severe penalties are found concurrent, for--

(_a_) There will easily arise wide and honest difference of
opinion as to whether two given perforated rolls are
infringements, one of the other, and even whether a given
perforated roll is an infringement of a particular musical
composition (if the bill should be retained in such form as to
make the original copyright apply to perforated rolls). It is well
known that controversies are constantly arising upon the question
of infringement as between two staff notations, the second author
often claiming and frequently establishing, contrary to the belief
of the first, that his composition was an independent one, both
having derived their theme from sources in the public domain.

A perforated roll presenting a composition only so similar to a
public and copyrighted composition as to raise a question of
infringement if it were a staff notation, instead of a perforated
roll, will raise the same question as a perforated roll. The
copyright owner will reap an advantage, it may be, of 10 per cent,
upon the selling price of the sheet music, let us say 15 to 25
cents for every copy sold. He will reap a profit of $10 as a
minimum upon every copy which he can find in the possession of the
alleged infringer, his agents, or employees. Is there any doubt
which remedy he will elect? Is there any doubt that he will await
his opportunity for finding a large stock in the hands of the
alleged infringer? Is there any doubt that a statute so framed
would offer almost irresistible inducement to blackmail, which
might be perpetrated under such circumstances?

The extravagant injustice of the provisions for impounding the
"goods alleged to infringe" upon the commencement of a suit and
for delivering up for destruction all copies, as well as all
plates, molds, matrices, and other means for making infringing
copies, have been well discussed by Mr. Walker. It is not deemed
conceivable that your committee will seriously entertain such
obviously oppressive legislation. On what possible pretense of
equity or justice may a complainant, who thinks that his copyright
has been infringed, upon that mere allegation lock up his
competitor's stock of goods, while he on his part monopolizes the
market during the pendency of a long litigation to determine the
justice of that which may have been only a colorable charge at the
start?

One's sense of justice is startled into horror at the suggestion
of subsection d, on page 18 of the bill, that "all plates, molds,
matrices, and other means for making infringing copies shall be
delivered up for destruction," even if it is understood that this
is to be done only at the conclusion of a suit. Whoever drafted
this provision was either malicious or ignorant. (This statement
is made with careful deliberation and we wish to repeat it: He was
either malicious or ignorant.) Mr. Walker's presentation must make
this clear. I make the same for my own client, which has an
equipment involving an investment of many thousand dollars for
producing perforated rolls, every element of which would enter
into the production of each single roll, and all of which would be
subject to destruction under the language quoted. Under this
provision of the bill a single accidental, inadvertent
infringement will subject that entire plant to destruction, though
the copyright owner may not be damaged 50 cents.

Could anything be easier than for a malicious manufacturer to ruin
his competitor by entrapping him into the manufacture of a single
infringing roll and then bringing suit under this section and
destroying his establishment?

Your committee will not doubt that the writer of this section was
ignorant of this possibility, if it acquits him of being malicious
in the drafting of this provision.

_7. Section 4966--Public performance._--Your committees have not
failed to notice the single provision of section 64 of the bill
which, "providing that all acts and parts of acts inconsistent
with are hereby repealed," makes exception of section 4966, and in
respect to that section provides that its provisions "are hereby
confirmed and continued in force, anything contrary in this act
notwithstanding."

The framers of this bill were more anxious than for anything else
that the monopoly of public performance given by section 4966
should in no respect be weakened, and although they have embodied
in this bill provisions in terms more stringent than those of that
section, fearing that these more stringent provisions might not be
constitutional, or that by some slip they might be found to leave
a loophole, they reversed the ordinary procedure, and, instead of
making the bill as a new act, repealing all inconsistent acts,
they make the section of the former act nullify the bill as to all
inconsistent features.

It will occur to the committee that this is an unscientific mode
of proceeding, and that the bill, when enacted into law, should be
clear and consistent within itself, and not subject to
nullification by its own terms in any respect.

But it is believed that section 4966 of the present statute has
been tacitly treated as meaning something which the legislature in
enacting it never intended, and that the provisions in the present
bill, developing into express terms that which has been tacitly
treated as involved in the terms of said section of the present
law, crystalizes into dangerous permanency a defect which would
have been eliminated from the present statute whenever the United
States courts had occasion to review it.

Protection for public performance is justifiable only in respect
to compositions which by their nature yield no considerable
revenue to the author by the sale of copies or otherwise than by
public performance. Dramatic compositions clearly fall within this
class. A dramatic composition is written primarily to be performed
and only incidentally to be read. Some dramatic compositions may
have such literary character that they would be bought to be read
and so little dramatic quality that they will not be largely
performed; but the dramatic composition whose value is in
performance and not in reading gets little protection from the
copyright statute without special provision giving monopoly of
public performance. A hundred copies will supply all the actors
who need it; no one else wants it; but a million people will be
glad to see it performed and will pay high prices for their seats.
The dramatic writer must get his revenue from the million--not
from the hundred--or he will fail of adequate compensation.

Recognizing this situation, Congress, in 1870, enacted the
following provision:

"SEC. 4966. Any person publicly performing or representing any
dramatic composition for which copyright has been obtained,
without the consent of the proprietor or his heirs or assigns,
shall be liable," etc.

In 1897 the section was amended by inserting the provisions now
contained in section 4966, making it include musical compositions,
the words "or musical" being inserted after the word "dramatic" in
the second line of above.

There can be no reasonable doubt that the intention of the
amendment of this section, by making it refer also to musical
compositions, was to include musical-dramatic with other simple
dramatic compositions; that is, to make the scope of the
protection take in all compositions whose value rested in dramatic
performance as distinguished from mere vocalization.

The word "perform" in the section clearly points to this
significance and intention.

It is not believable that Congress intended to provide by this
amendment that every member of a religious congregation joining
publicly in the singing of a copyrighted tune should be liable to
the penalties prescribed by this section; nor even that every
member of a church choir, having purchased the copies of the
copyrighted anthem, sold only for such purpose and useful only for
such use, should be subject to these penalties, if the publisher
omitted to grant expressly the permission to sing with the sale of
a printed copy.

But no other interpretation can possibly be derived from the
present section unless the word "perform" is taken as applying to
dramatic performance and as not including mere vocalization in
public.

The present bill is intended to leave no doubt upon this point,
and in that respect it is contrary to public policy, sound sense,
and every consideration of justice.

The holder of a musical copyright should not be vested, by virtue
of that copyright, with the right to sell his music, which is made
to be sung, and prohibit its singing; to sell his music, which is
made to be played, and prohibit its playing. Still more obnoxious
to justice is it that one who has been openly sold a copy of a
piece of music, and who has done with it that which constitutes
the only motive for buying it, namely, has sung it, or played it,
or procured some one else to sing it for his entertainment,
should, if he chances to do that in public, be penalized and put
in the position of one who has committed a misdemeanor or
transgressed another's rights. Reason and sense revolt at such a
statute or such an interpretation of a statute; and musical
composers demanding such rights place themselves in contempt of
civilized society.