Chapter VI: Section 4964: , page 14.--Witnesses not to be required for the

written consent of the copyright proprietor.

Act of March 3, 1891, page 18.--Only one fee to be required in case
of several volumes, or numbers or (in certain cases) parts of a
series deposited at the same time with a view to a single
registration.

Act of January 7, 1904, page 19.--Omitted as obsolete.

I have particularly noted in this memorandum the points in which the bill intentionally abrogates existing law and the more significant respects in which it modifies or amplifies it. The respects in which it intentionally abrogates existing law are very few, as shown in Part B of the memorandum. The phraseology of existing law is only here and there recognizable in the bill. That is because the bill attempts to be systematic and organic, and, second, because it has sought general terms, wherever descriptive, rather than particular specifications. Especially has it preferred this where the specifications might be limiting. This, as I have noted in the memorandum submitted to you, is particularly illustrated by the treatment of the "subject-matter." The bill contains only the general statement that the subject-matter is to include "all the works of an author," leaving the term "author" to be as broad as the Constitution intended; and, as you know, the courts have followed Congress in construing it to include the originator in the broadest sense, just as they have held "writings," as used in the Constitution, to include not merely literary but artistic productions.

After this general statement certain specifications follow in the bill of particular classes under which a particular application is to be made in the office, but these specifications are coupled with the proviso that they shall not be held to limit the subject-matter. The specifications so far as possible also substitute general terms for particulars. They omit, for instance, the terms "engravings, cuts, lithographs, painting, chromo, statues and statuary." They assume, however, that all of these articles will be included under the more general terms, as "prints and pictorial illustrations" or "reproductions of a work of art" or "works of art" or "models or designs for works of art." The term "works of art" is deliberately intended as a broader specification than "works of the fine arts" in the present statute with the idea that there is subject-matter (for instance, of applied design, not yet within the province of design patents), which may properly be entitled to protection under the copyright law.

The attempt to substitute general terms for particulars is evidenced also in the definition of the right, and of the acts which constitute an infringement of the right. The present statute (sec. 4952) defines the right to consist in the sole liberty to do certain things. The bill (sec. 1) defines the right to be the sole and exclusive right to do certain things, and it specifies those things; but its specifications are in terms very different from those in the present statute.

The present statute (secs. 4965 and 4966) specifies certain acts which are to be deemed an infringement. The bill, having defined the right of the copyright proprietor as the exclusive right to do certain things, defines an infringement to consist in the doing or causing to be done without his consent of any of those things, the right to do or authorize which is exclusively reserved to him. It contents itself with this, adding only the one specification that "any reproduction," without his consent, "of any work or material part of any work in which [his] copyright is subsisting," shall be an infringement.

So as to the person who may obtain copyright: The present statute mentions the "author, inventor, designer, or proprietor," and elsewhere the "originator." The bill rests with the term used in the Constitution, "author," adding only "proprietor," which is not merely in the existing statutes, but has been construed in a series of judicial decisions.

Copyright consists of the exclusive right within a defined period to do certain things with certain subject-matter and to prevent other people from doing these things. The fundamental provisions of the copyright law are therefore these four:

What is the subject-matter?

What are the acts?

How may the exclusive right to do them be secured?

And who may secure it?

Upon the third point, "How may the right be secured?" the bill modifies substantially the existing requirements of law. These make deposit and registration in the copyright office a condition precedent. They require the deposit to be at least coincident with the publication, and they stipulate that failure to comply precisely with this requirement shall avoid the copyright ab initio.

The bill, in section 9, initiates the copyright from the date of the publication of the work, with the notice of copyright affixed. So, in effect, does the present law initiate the copyright from that date, provided the deposit and registration be effected then; but by the bill the publication with notice not merely initiates the copyright, it "secures" it. That is the expression used in the bill.

Deposit and registration in the copyright office are still requisite, but a reasonable period after publication is allowed for them. The period is thirty days, and in the case of error or omission may be even an entire year, but with the proviso that after the thirty days no action for infringement may be brought until these requirements have been complied with. The right is to be exclusive for a limited period. This period is now twenty-eight years, with a possible renewal for fourteen years--a maximum, therefore, of forty-two years. The bill abolishes renewals and provides for three terms, according to the subject-matter. The shortest is twenty-eight years for labels and prints relating to articles of manufacture heretofore registered in the Patent Office, but which the bill proposes to be taken over into the copyright office. The second term, fifty years, is substantially identical with the present possible maximum of forty-two. It applies to some original and to all derivative works. It would probably cover the majority of copyright entries during any particular period--the majority in number, I do not say in importance. The longer term--the life of the author and fifty years after his death--applies only to original works, but applies to most of those.

As to the merit of these terms, Mr. Chairman, and their necessity you will hear discussion. I merely call your attention to them with, however, these suggestions, which I feel in duty bound to communicate, because they have been so insistently urged upon us:

First, that the present term, a maximum of forty-two years (and that a conditional maximum), does not insure to the author his copyright even throughout his own life, and it makes no certain provision for his immediate family after his death. These are admittedly grave defects, and they are perhaps not met by the fact--it is a fact--that at present the privilege of renewal is taken advantage of by only a small percentage of the authors or their families.

The second is, that a term as long as life and fifty years exists in fifteen countries, including France; that England, with the minimum term of life and seven years proposes a term of life and thirty years, and that Germany, with a term of life and thirty years, is discussing--informally thus far, but is discussing a term of life and fifty years.

The third suggestion is that a common disposition to question a long term for copyright, on the ground that a short term suffices for patents, is based upon false analogy. Literary and artistic productions and useful inventions may be equally the creations of the mind, and they are coupled in the Constitution; but they are coupled, it is pointed out, only as deserving protection. Their character, and the duration of the protection required by each, may be very different. It is alleged to be very different. The monopoly is different; the returns to the creator are different, and the interests of the public are different in the two cases. The monopoly by patent in an invention is a complete monopoly of the idea. The monopoly by copyright in a literary or artistic work is a monopoly merely of the particular expression of the idea. The inventor's exclusive control of his idea, it is said, may bar innumerable other inventions, applications of his idea, of importance to the public, while the author's or artist's exclusive control of his particular expression bars no one except the mere reproducer. The returns to an inventor are apt to be quick; the returns to an author are apt to be slow, and the slower in proportion to the serious character of his book, if a book. The returns to a successful inventor are apt to be large; the returns to even a successful author or artist are not apt to be more than moderate.

Then the idea, it is said, covered by an invention or discovery, may concern the essential welfare, even the lives, of the community, and should be freely available at the earliest possible moment not unjust to the creator of it. Now, it is remarked that no particular book, at least none currently copyrighted to-day, can be said to be essential to the welfare or protection of the community. Many a man's pleasure may be enhanced by it, some men's profit; but no man's essential welfare depends upon it, and no man's life, save, perhaps, the author's own.

I communicate those suggestions as having been pressed upon us.

In no respect are the present statutes alleged to be less satisfactory than in their provisions for the protection of the right, and redress to the copyright proprietor for invasion of it. One inconvenience is that they provide a different class of remedies and recoveries for different subject-matter; another is that they seem to confuse the duty of the Government to punish a deliberate infringement as it would punish any other theft with the right of the copyright proprietor for compensation for his particular losses. The bill attempts to provide uniform remedies, and it divorces the civil action from the criminal. As the memorandum states it, "Penalties imposed for acts in the nature of misdemeanors are no longer to be shared by the United States with a person suing for them;" nor "are sums recovered by way of compensation to the copyright proprietor to be shared by him with the United States." Nor is his right to recover such sums to be imperiled by the necessity of proving that the defendant has committed an offense against the community as well as profited at his expense.

The deliberate theft of a dramatic or musical composition by the willful performance of it for profit, without the assent of the owner, author, or copyright proprietor, is now by law a misdemeanor. The conference could not see why this provision should not apply to any infringement which is both willful and for profit, and section 25 of the bill extends it to all such.

The existing provision (sec. 4966, Rev. Stat.) which provides remedies and penalties for infringement of dramatic and musical copyrights, is of great moment to the dramatists and composers; and now that it is merged in the general provisions of this and other sections of the bill they are in great apprehension lest it may suffer accident, if accident befall these. To guard against this the general repealing clause of the bill excepts and continues in force section 4966 of the Revised Statutes, but it does so with the intention that this exception shall be dropped in case the general provisions stand.

The reason or merit of these and other provisions of the bill will at the proper time have to be made clear to you, if challenged. That is no part of my present duty, which is merely to introduce the bill to your attention, with some explanation as to how it came to be, and some note as to its leading features. But I except two matters, and I do so to avoid misapprehension; and I feel free to do so because both involve the administration of the copyright office. One is as to fees. The impression has gone out that the fee for registration is to be doubled. The fee for registration is now 50 cents, but 50 cents additional is charged for a certificate when furnished. The proposed fee is $1, but this is to include the certificate, which is to be furnished in all cases and as a matter of course. It ought to be furnished, in the opinion of the office, and no claimant of copyright ought to rest easy without it. It is the evidence of registration and deposit--indispensable formalities, even hereafter--and it is now to be prima facie evidence in a court of law of the facts which it sets forth.

If the copyright is worth the 50 cents for the registration, it seems certainly worth the additional 50 cents for the certificate. But I note here that objections are to be raised to the provision for fees, and particularly as working hardships in some cases not made exceptions, as the case of a series of studio photographs registered under one title at the same time is made an exception. You will have some suggestions as to cases in which the exaction of this fee, without some special modification in certain cases, would work an undue hardship.

On the other hand, the bill tends to reduce the aggregate fees payable by any one publisher and the aggregate receipts of the office by enabling a number of volumes of the same work, and in the case of photographs, prints, and like articles, an entire series, if registered at the same time, to be registered for a single fee.

The other matter is that of copyright deposits. The volume of these is now prodigious. During the last year alone the articles deposited exceeded 200,000 in number. A large proportion of these are of great value to the Library and are drawn up into it. The rest remain in the cellar. The accumulations in the cellar now number a million and a half items. Many of these would be useful in other Government libraries; for instance, medical books in the library of the Surgeon-General's Office. Some of them might be useful in exchange with other libraries. A few might have value in exchange with dealers. The remainder are a heavy charge upon the Government for storage and care, without any corresponding benefit. They ought to be returned to the copyright proprietors if they want them, or, if not wanted, destroyed. Such dispositions are, I believe, already within the authority of law; but it is fair that they should be expressed. The bill (secs. 58 and 59) definitely expresses them. I ask your attention to them in due course. They have been accepted by the conferences, and therefore by the interests outside of the Government most nearly concerned with their operation. But they may awaken some apprehension elsewhere because of a quite common misunderstanding of the significance of the deposit and its relation to the copyright protection.

The original purpose of such deposits was the enrichment of the Library. This is clear from their history, both in this country and abroad. They were made a condition of securing copyright, but they had no continuing relation to the copyright once secured. In England, for instance, the copies required (now five) are to be for the use of the libraries--five libraries--no one of which is the office of registration for copyrights. The earliest act in this country was that of Massachusetts, in 1783, which exacted a copy as a gift to the library of the University of Cambridge, Harvard University, "for the use of said university," which was not the office of copyright. The earliest act providing for deposit in the Library of Congress, that of 1846, provided that the copyright proprietor should give one copy of the book to this Library, and at the same time it provided that he should give one copy to the library of the Smithsonian for the use of that library.

In 1867 the library of the Smithsonian became a part of the Library of Congress. The act of 1870 provided two copies, both to be addressed to the Library of Congress. But by that same act of 1870 the Library of Congress became the office of registration for copyright; and from that time, and because the failure to deposit not later than the date of publication actually voided the copyright, an impression has grown up that the articles deposited are an integral part of the record of registration, and have a peculiar sanctity as such. The fact of the deposit has been and will be an integral part of the record, and in times past this could most readily be proved by the copies themselves, the law providing neither for a certificate to the claimant admitting the receipt of the deposit nor an entry in the official record showing it. But hereafter the fact of deposit will be proved by the certificate itself.

There is an impression--a very natural one, too--that the copies deposited are necessary evidence of the thing copyrighted, and essential as such in litigation. Now, during the past thirty-six years the copyright office has record or memory of only four cases in which articles deposited have been summoned into court, and an authority on copyright litigations remarks that in three of these he is quite certain that the reason was a fanciful one, and in the fourth he did not see any necessity for it.

For the matter of that, however, there is little prospect that any article of sufficient importance to be a subject of litigation would be deliberately destroyed, or would fail to be drawn into the permanent collections of the Library--at least one copy of it.

Mr. Chairman, having indicated something of what the bill is, let me say a word as to what it is not, in intention.

First. It is not an attempt to codify the common law. The conservative bar was very fearful that it would be. Even more than the present statutes, it leaves to the courts to determine the meaning and extent of terms already construed by the courts. It does this even in cases where the temptation to define was considerable and where foreign statutes attempt a definition. For instance, Who is an author? What is publication in the case of works not reproduced in copies for sale? What is fair use? Now, many such definitions were proposed and lengthily discussed, and omitted because they did not stand the test of the best expert opinion of the most conservative advisers of the conference, particularly the committees of the bar associations.

Second. The bill does not, in intention, attempt to regulate relations between authors and publishers which are or may be matter of private contract.

Third. It is not an attempt at abstract and theoretic perfection, nor is it an attempt to transplant to this country theoretic or what might be charged to be sentimental provisions of foreign law. It tries to be a bill possible for this country at this time and under conditions local here. It contains, therefore, some provisions which are, in our judgment, neither theoretically sound nor according to modern usage abroad nor satisfactory to particular participants in the conference. These are a compromise between principle and expediency or between one interest and another at the conference, between which we could not decide for either extreme--I mean decide in the sense of bringing before you a suggestion in this particular form. We had not any decision in any other sense; we were not a commission. The bill is a compromise. I doubt if there is a single participant in the conferences whom it satisfies in every particular.

Fourth--and I feel really, Mr. Chairman, in justice to the conferences, after their year of labor, impelled to say this--the bill is not a mere congeries of provisions proposed by a selfish group, each member of which was considering solely his own particular interest. It contains, of course, some provisions which concern only particular interests--for instance, the provision as to sound records, or that as to affidavit of domestic manufacturers. But these are easily distinguishable; we suppose and we should hope that they would be distinguished, and particularly so if, as we know to be true in the case of sound records, there is to be definite objection before you against the bill as it stands; and we should hope that that objection, with the arguments of those with whom the proposal originated particularly, should be set aside for special discussion distinct from the general discussion on the bill as a whole. I say there are provisions which concern particular interests, of course, particularly; but these we should hope would be distinguished in your consideration of it.

The bill is the result of a sincere attempt, as we have seen it, to frame a reasonable general statute. I say "sincere," and I feel the right to say it because I followed the conferences closely, and had the best opportunity to judge of their temper and disposition. If some of the interests were selfish in one direction, they were met by the selfishness of others in another direction, and both were under criticism from the general advisors and under the influence of the main body. And neither such interests--and I am speaking of history now, of course--neither such interests nor any other participant in the conference initiated the conference, nor determined its composition, nor controlled its proceedings. The conference was initiated by the Copyright Office at your suggestion, Mr. Chairman. It was composed of organizations invited by the office, and it was theoretically held in the office. The Librarian presided at it, and except for the purpose of some formal resolutions it never organized or in any other way passed out of the control of the office.

If the bill reveals some selfishness, it is perhaps condonable. It is the selfishness of men trying to protect their own property; for of course, as I have emphasized, the interests that were especially invited to the conferences were those that are concerned in an affirmative way with the protection of the right. The conferences were not generally representative--completely representative--in other respects. The bill has that purpose--that is, for the protection particularly of the property. It comes before you for consideration on the ground that it goes too far. It does not create, of course, a new species of property; it merely recognizes a species of property created by the Constitution and already recognized by statute. Its purpose is simply to secure to the man who has created it a species of property which peculiarly requires the protection of law, because the very act which makes it remunerative to him lays it open to expropriation--that is, the act of publication--and seems peculiarly entitled to the protection of the law, because it is that act, and that alone, which makes it of any use to the public; and of course it secures this protection--not permanently, but only against untimely expropriation.

It may be said that the public was not represented at the conferences. The public in this matter would, I suppose, belong to one of four classes: In the first place, the producer, the creator, with his publisher and manufacturer; or, second, one who is to enjoy the work as a consumer; or, third, one who wishes to utilize the work in some other work, or to reproduce and market it for his own benefit, when this can be done innocently; or, fourth, the student and critic of the rights and obligations of property, and of the regulation of this by law. There may be a fifth class, the mere pirate. He was not invited to the conferences, and I suppose he would not be to your hearings. But the innocent reproducer was not unrepresented at the conferences or in the discussions. In fact, most of the producers were also reproducers, and quite insistent upon their convenience as such. The original producers, publishers, and manufacturers were there as of right, and the student and critic through their interest and public spirit. As for the consumers, two considerable groups were actually represented, and more would have been if organizations could have been found to represent them. Others also there spoke for them.

But as I understand it, it is in the interest of the consumer just because it is in the interest of the producer that copyright laws were originally designed and were called for by the Constitution; and if this proposed one fails fairly to regard that interest of the consumer, its defects will surely be brought to your attention by the third great estate which is jealous of those interests--the newspaper and periodical press; for the bill is now before the public.

Finally, Mr. Chairman, notwithstanding the labor put upon it, the bill is doubtless still imperfect in expressing its intentions; and I have no doubt that while it is under consideration those especially concerned will ask leave to submit to you some amendments of phraseology. I understand that any such amendments proposed by participants in the conferences will be communicated first to the copyright office, so that they may be formulated by the register for your convenient consideration; and the office will gladly do the same for any that may reach it from any other source.

The relation of the office to this project has been peculiar, Mr. Chairman, and that alone has excused me in introducing the bill to you. But having introduced it, the office will, with your permission, relapse into its more normal position of informant to your committee on matters of fact, and an adviser when its opinion is asked. With the general structure of the bill, including its phraseology, the office will of course have especial concern. Upon the general principles involved and upon matters of practice the office will naturally have some opinions, and may not avoid ultimately expressing these, even though in doing so it incidentally supports a provision which concerns particularly a particular interest. It can not avoid this where a bill is referred to it by your committee for its opinion, and still less can it do it in the present case where it is itself in possession of the reasons which induce the various provisions and the principles supposed to underlie them. It must, as occasion requires and you think necessary, expound the bill. Mere advocacy, however, Mr. Chairman, of any particular provisions it must leave to others.

Mr. Chairman, ordinarily I assume that in such a case as this those who are in a sense proponents of the measure would be heard in the affirmative in argument in support of the measure. It is my understanding that in so far as the proponents can be said to be those who participated in the conferences, they do not care for leave to make any argument as such. Certain of them, representing typical interests, would, however, be glad to submit a word or two in behalf of those interests--a very brief word, no one of them speaking for more than five minutes. We have thus far (which I am under duty to communicate to you) notice of objections to two or three particular provisions and then to the bill substantially as a whole.

One of the particular provisions is that against reproduction of copyrighted musical compositions by means of some device or appliance for reproducing it to the ear. Another particular provision is that which, in two respects, curtails the privilege of American libraries to import foreign editions of works copyrighted here.

Mr. CURRIER. It does so in more than two respects, does it not?

Mr. PUTNAM. The present law permits two; the bill cuts the two to one.

Mr. CURRIER. Yes; but there are various other restrictions embodied in the bill, are there not?

Mr. PUTNAM. In regard to libraries?

Mr. CURRIER. In regard to importation for libraries.

Mr. PUTNAM. Yes; there may be other points. I was speaking of the two.

Mr. CURRIER. The individuals are cut out, are they not?

Mr. PUTNAM. The individuals are cut out.

Mr. CURRIER. That is one restriction.

Mr. PUTNAM. They are noted as cut out.

Mr. CURRIER. The number of books is reduced from two to one?

Mr. PUTNAM. In all cases; yes.

Mr. CURRIER. Then the phraseology is so changed that it must mean something. When you say, "To any book published abroad," beginning on page 16, "with the authorization of the author or copyright proprietor," what does that mean?

Mr. PUTNAM. Page 16 of the library print?

Mr. CURRIER. Yes; it is subdivision E, page 16.

Mr. PUTNAM. Section 30--"any book published abroad with the authorization of the copyright proprietor"--that is, the authorized foreign edition.

Mr. CURRIER. Well, that phraseology is new.

Mr. PUTNAM. I was not of the impression that the intent was new in that. It refers to the foreign authorized edition as distinguished from the foreign unauthorized edition, because the importation of any unauthorized edition is prohibited as a fraudulent invasion of the right. It may be, of course. If there is any diminution under that of the present privileges of libraries, there is a group of librarians who desire to be heard. I do not know that they had that so particularly in mind as the exception under subsection 3.

Mr. CURRIER. In subsection 3 there is still another new restriction, is there not?

Mr. PUTNAM. Yes.

Mr. CURRIER. As to the privilege of importation without the consent of the American copyright proprietor, etc.?

Mr. PUTNAM. Yes.

Mr. CURRIER. That is still another restriction?

Mr. PUTNAM. Yes; two copies reduced to one, this prohibition of the importation of the foreign edition of a book of an American author published here of which there is an authorized American edition----

Mr. CURRIER. And the cutting out of the right of the individual?

Mr. PUTNAM. And the cutting out of the right of the individual. I was speaking of libraries first; yes.

Mr. CURRIER. And then such restrictions as may be embodied in that phraseology?

Mr. PUTNAM. Yes; if there is any restriction there, that also.

Mr. CURRIER. I understood some two months ago that an agreement had been reached between the publishers and the librarians, satisfactory to both, which was to be embodied in the bill. Was that the proposition that is now a part of the bill?

Mr. PUTNAM. I think that can best be answered, Mr. Currier, by Mr. Bostwick, who is here, who was a participant in the conferences in behalf of the American Library Association. That is the general association of this country. Mr. Bostwick and Mr. Hill were the two delegates to the meeting; and Mr. Bostwick will say whether this provision is satisfactory to his association as an association.

Mr. CURRIER. I simply desire to say that my mail is filled with protests from librarians and from universities and colleges against this restriction.

Mr. PUTNAM. Yes; and as I was saying, Mr. Currier, we have already note of that protest. Mr. Cutter, Doctor Steiner, and perhaps others--certainly those two, however--Mr. Cutter being librarian of the Forbes Library, at Northampton, and Doctor Steiner being librarian of the Enoch Pratt Library, at Baltimore, are here in behalf of remonstrants against any diminution of the present privileges of libraries. I had understood that this provision as it stands had been accepted by the representatives of the association simply as participants in the conference. May Mr. Bostwick state as to that, Mr. Chairman? I only suggest it because you asked the question.

The CHAIRMAN. We have concluded that it is best to adopt the suggestion to hear first the proponents of the bill and then, at a later period, hear those who object to its provisions.

Mr. PUTNAM. In that case, Mr. Chairman, if you will let me suggest, the interests represented at the conference are easily classifiable. They were the creators of literary productions, the authors; they were the dramatists; they were the composers and the publishers of those productions, the manufacturers, the reproducers; they were these two associations, so far as we had them there, representing the consumers; and then there were the two committees of the American Bar Association representing our general legal advisers.

Mr. Bowker is here representing the author class particularly.

The CHAIRMAN. We will hear from Mr. Bowker.

Mr. SULZER. Mr. Chairman, I would like to have it noted on the record that I have received a letter from former Judge A. J. Dittenhoefer, the well-known lawyer of New York City, who represents the American Dramatists' Club and the Managers' Association, of New York, and who desires to appear at some subsequent time in favor of certain provisions in this proposed law.

The CHAIRMAN. Does he desire to be heard if the committee is in favor of them?

Mr. SULZER. No; not if the committee is in favor of them. That is the point.

The CHAIRMAN. Perhaps that can be taken up, then, at a later date.

Mr. SULZER. Yes.

STATEMENT OF RICHARD ROGERS BOWKER, ESQ., VICE-PRESIDENT OF THE AMERICAN COPYRIGHT LEAGUE.

The CHAIRMAN. Will you please state your name, Mr. Bowker, your residence, and whom you represent?

Mr. BOWKER. My name is Richard Rogers Bowker. I speak as vice-president of the American Copyright League, commonly called the Authors' Copyright League.

Mr. Chairman, the American Copyright League, for which I speak as vice-president in the absence of its president, Mr. Edmund Clarence Stedman, who regrets in this letter that ill-health detains him in New York, and who desires to be recorded as well satisfied with the bill as a basis for Congressional consideration, and in the absence of our secretary, Mr. Robert Underwood Johnson, of the Century, who has been our sentinel for years in respect to all matters as to copyright legislation, the American Copyright League asks that the first half hour be devoted by your committee to the originators of copyright property.

Mr. Clemens, I understand, has reached Washington, and hopes to be present at one of these sessions as a member of the council of our league. Mr. Bronson Howard, the president of the American Dramatists' Club, and also a vice-president of this league, I hope will be present to speak for the dramatists. Mr. Sousa and Mr. Victor Herbert are here to-day representing musical composers. Mr. Frank D. Millet is here as the delegate of the National Academy of Design and of the Fine Arts Federation, and possibly Mr. Carl Bitter, president, or Mr. Daniel C. French, ex-president of the National Sculptors' Association, may also be here. We ask that a half hour be given to those gentlemen presently; and I shall occupy but five minutes or so of that time.

The conference, sir, proceeded at its first session on a memorandum which formed the basis for discussion, presented by the American Copyright League; and I mention that to say that that memorandum included two important suggestions which were not incorporated in the bill--one the suggestion that the bill should be, as it were, a group of bills, representing separately and distinctively the literary, dramatic, musical, and artistic varieties of copyrightable property. An honest endeavor was made to do that, but it proved not practicable and workable. Again, members of our council, Mr. Stedman and Mr. Clemens among them, desired very much that the authors should be safeguarded in their relations with publishers by certain insertions in the bill. It was held by the legal authorities that that was not a proper subject of introduction in a copyright code; and on those two points the American Copyright League, I think I am authorized to state, recedes from any possible dissension. And I say it, sir, because there are doubtless many points on which the several organizations would prefer to have additions or omissions.

A little girl I knew spoke of a compromise as something where everybody got what they did not want. Now, in that sense this bill is not a compromise. It represents, rather, the consensus of opinion of the originators of copyrightable property, of the reproducers, publishers and similar interests, and of representatives, as Mr. Putnam has told you, of various other interests. On behalf of the league we believe, sir, that you have before you a working basis for a just, broad, clear, workable copyright bill; and we feel confident that such a bill will emerge from your deliberations.

We ask you, sir, to keep in mind two vital points: First, that the rights of the producing classes shall be first of all thought of, but not to the detriment of the great body of reproducers and readers, on whom the author classes depend for the possibility of realizing from their productions. As has been said to you, copyright is on a different basis from patents, in that it not only does not interfere with the rights or privileges of others as succeeding inventors, but that the world is the better for any original work contributed by help of the copyright laws to the community without detriment to anyone, and therefore it should have a broader scope before you in copyright legislation than in patent legislation; and we ask that in that view, in that spirit, the rights of the producing classes shall be kept in mind.

Secondly, sir, this is a very difficult and complicated question. Those of us who have met in conference have recognized most fully the care, fairness, and wise consideration which have been given to all interests by the copyright office and the difficulties under which a practical bill has been framed. We ask you, sir, in your considerations in the committee and in the discussions in Congress so far as they are shaped by the committee, that you will keep in mind, sir, the importance of keeping a consistent bill throughout these difficult provisions. The copyright office has been of the greatest service to all of us in that very function; and I have no doubt, sir, from our experience, that it will be of the greatest service to your committee.

The league had stood for a copyright commission instead of this conference. But when we find this bill, sir, presented as the result of only a year's work, and remember that the English copyright commission took years to produce a draft which has not yet, after nearly a generation, been enacted into law, we can not but express the greatest satisfaction with the result now before you. We do not feel, sir, that any bill can be presented to your committee which does not call for the most careful consideration, for protest from outside interests, and for discussion, not only in your committee and in the halls of Congress, but throughout the public. We do not feel that any such bill would be possible; and I wish very heartily, sir, to record the American copyright league as favoring the fullest discussion and the fullest consideration of any of what may be called the minority interests. We believe that the interests of the office are perfectly consistent with the interests of the public; and in that view, sir, we support most heartily, individually and as members of the conference, the bill which you have before you.

STATEMENT OF FRANK D. MILLET.

Mr. MILLET. I shall have very little to say, Mr. Chairman. The artists are interested in this bill because, as the committee undoubtedly understands, the copyright of a picture is often, almost always, more valuable to the artist than the original work--that is, of greater money value. We have had long experience with the law, and we have not found that we have been protected. So little protection has been afforded that it is no longer the habit for the artist to copyright his picture. We have gone out of the business of copyrighting, practically, as you will find if you will go to any exhibition, because we have not been able to get any relief in case our work had been infringed upon. We have always objected to the copyright notice which we have been obliged to put on the picture, because it is considered a disfigurement. That is another reason why we have not copyrighted. That has been a very great loss to us as a class. That has been one of the reasons why we prefer, many of us, to spend much of our time abroad.

If you will pardon me for a moment I will give a personal instance.

I have painted in England and in Europe over twenty years. I never had one bit of difficulty with my copyrights over there, and I have had considerable income from my copyrights; and I think $7 or $8 is about all the money I have ever gotten in America out of copyrights here.

Since the conferences began last winter two of my pictures have been reproduced by a journal in New York, one of them in color. They cut off my name and copyrighted the picture themselves. In the case of the other they left my copyright on and published it without my consent. I have absolutely no redress, because the law says that I can get a dollar for every copy found in their possession, and they were not fools enough to have any copies in their possession, of course. I relate this little personal tale, because that is what has been the experience of all the artists, painters, and sculptors.

We do not pretend to say that this bill, in these particular cases, or in the first case of notice, meets our highest desire, because we would like to have it exactly as it is abroad, no notice being required whatever. But we met our friends, our dearest foes, the reproducers, and made this compromise, which is satisfactory to us on the question of the notice, as to what we shall put on the picture without disfigurement, and we think that the bill is the best one that we could possibly agree to, and we are all of us fully in favor of the bill as it stands.

I thank you.

Mr. SULZER. Is the bill as it is drawn at present satisfactory to you?

Mr. MILLET. It is satisfactory to us.

Mr. SULZER. And you want it passed just as it is?

Mr. MILLET. We would like to have it passed as it is.

Mr. SULZER. That would protect the artists?

Mr. MILLET. As far as we can make out, that would protect us.

Mr. CURRIER. Is it the criminal remedy that is provided by this bill that would give the protection you need?

Mr. MILLET. That is one of the things.

Mr. BONYNGE. What are the new remedies given to the artists by the provisions of this bill?

Mr. MILLET. At the end of the bill you will find them.

Mr. CHANEY. Just state them from memory.

Mr. MILLET. There is a misdemeanor clause that we are very keen on, the same as for the dramatists. We do not see why it should not be a misdemeanor, to apply to us as well as to the dramatists--sections 23 and 25.

STATEMENT OF JOHN PHILIP SOUSA.

Mr. SOUSA. Mr. Chairman, I would much rather have my brass band here. I think it would be more appreciated than my words will be. [Laughter.]

Mr. CHANEY. We would rather have you, just now.

Mr. SOUSA. Thank you.

Mr. Chairman, I would like to quote Fletcher, of Saltoun, who said that he cared not who made the laws of the land if he could write its songs. We composers of America take the other view. We are very anxious as to who makes the laws of this land. We are in a very bad way. I think when the old copyright law was made, the various perforated rolls and phonograph records were not known, and there was no provision made to protect us in that direction. Since then, the talking machines have come out, and the claim is made that the record of sound is not a notation.

There are three ways for the composer to make a living by his music: By sight or by sound or by touch. The notation of my compositions or the compositions of any other composer for the blind must be entirely different from the ordinary, because it must be read by the sense of touch. The notation that is made for a combination of instruments is brought out by sound. The claim that is made about these records is that they can not be read by any notation--simply that no method has been found to read them up to the present time, but there will be. Just as the man who wanted to scan the heavens discovered a telescope to do it. No doubt there will be found a way to read these records.

We are entirely in favor of this bill. The provisions satisfy us, and we want to be protected in every possible form in our property. When these perforated-roll companies and these phonograph companies take my property and put it on their records they take something that I am interested in and give me no interest in it. When they make money out of my pieces I want a share of it.

Mr. SULZER. They are protected in their inventions?

Mr. SOUSA. Yes, sir.

Mr. SULZER. And why should you not be protected in yours?

Mr. SOUSA. That is my claim. They have to buy the brass that they make their funnels out of, and they have to buy the wood that they make the box out of, and the material for the disk; and that disk as it stands, without the composition of an American composer on it, is not worth a penny. Put the composition of an American composer on it and it is worth $1.50. What makes the difference? The stuff that we write.

Mr. BONYNGE. What is the protection by the terms of this bill that is given you?

Mr. SOUSA. That in any production of our music by any of these mechanical instruments they must make a contract with us or with our publishers; that they must pay us money for the use of our compositions.

The publishers of this country make contracts with the composers, and agree to give them a sum outright or a royalty on sales for each and every copy that they publish and sell.

The companies making records for talking machines take one copy of a copyrighted piece of music and produce by their method a thousand or more disks, cylinders, or perforated rolls. If they would buy one copy from my publishers and owners of my copyright and sell that one copy, I would have no objection; but they take the copyrighted copy and make what they claim is a noncopyrighted copy, sell it, and do not give the owner of the copyright a penny of royalty for its use; and they could not do this if the composer had not written it and the publisher had not published it, and I want to be paid for the use they make of my property.

Mr. WEBB. Does this affect records already made?

Mr. CURRIER. No; it does not affect existing copyrights.

Mr. SOUSA. No. That is a sop--I am willing to let it stand for the sake of the future, but I think it is wrong. That is a sop to them, the talking-machine companies, and hereafter they will make money after this law passes on the pieces that I made before the law went into effect.

Mr. CHANEY. So that we will get "El Capitan" from the phonographs in various places?

Mr. SOUSA. Yes, sir; and I'll get nothing for it; and I am the man that made "El Capitan." [Laughter.]

I speak in the interest of the publishers and the composers, and some of them asked me to come here because I could talk from the heart, and I do. I am sure of what I say. There may be some interests opposed to the bill for selfish reasons, but these interests know the bill simply gives us rights we are entitled to.

As to the artists, Mr. Millet said that he got $8.75 for one of his pictures. You can take any catalogue of records of any talking machine company in this country and you will find from 20 to 100 of my compositions on it. I have yet to receive the first penny for the use of them.

There is another point to consider. These talking machines are going to ruin the artistic development of music in this country. When I was a boy--I was born in this town--in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. [Laughter.] We will not have a vocal chord left. [Laughter.] The vocal chords will be eliminated by a process of evolution, as was the tail of man when he came from the ape. The vocal chords will go because no one will have a chance to sing, the phonograph supplying a mechanical imitation of the voice, accompaniment, and effort.

On this river, when I was a young man, we went out boating and the music of young voices filled the air.

Last summer and the summer before I was in one of the biggest yacht harbors of the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an æolian, or something of the kind. They were playing Sousa marches, and that was all right, as to the artistic side of it [laughter], but they were not paying for them, and, furthermore, they were not helping the technical development of music. Go to the men that manufacture the instruments that are nearest the people--the banjo, the guitar, and the mandolin--and every one of them will tell you that the sale of those instruments has fallen off greatly. You can not develop music without these instruments, the country singing school, and the country brass band. Music develops from the people, the "folk songs," and if you do not make the people executants, you make them depend on the machines.

Mr. CURRIER. Since the time you speak of, when they used to be singing in the streets----

Mr. SOUSA. Well, Mr. Currier, I am 50 years old----

Mr. CURRIER. I was just going to ask you: Since that time, the law has been passed to protect the authors of musical compositions, which would prohibit that. Is not that so?

Mr. SOUSA. No, sir; you could always do it.

Mr. CURRIER. Any public performance is prohibited, is it not, by that law?

Mr. SOUSA. You would not call that a public performance.

Mr. CURRIER. But any public performance is prohibited by the law of 1897?

Mr. SOUSA. Not that I know of at all. I have never known that it was unlawful to get together and sing.

Mr. CURRIER. It probably has not been enforced to that extent.

Mr. MCGAVIN. You think it ought to be against the law for some people to attempt to do it, do you not, Mr. Sousa? [Laughter.]

Mr. SOUSA. Yes.

Mr. CURRIER. It is possible that that has deterred the young people from singing.

Mr. SOUSA. Would you not consider it a greater crime to turn on a phonograph----

Mr. CURRIER. I do not consider singing a crime.

Mr. SOUSA. If you would make it a misdemeanor, do you not think it much worse to have a lot of these machines going than to have a lot of fresh young voices singing?

Mr. CURRIER. I think a great many people in this country get a great deal of comfort out of the phonograph.

Mr. SOUSA. But they get much more out of the human voice, and I will tell you why: The phonograph companies know that. They pay Caruso $3,000 to make a record in their machine, because they get the human voice. And they pay a cornet player $4 to blow one of his blasts into it. [Laughter.] That is the difference. The people, the homes, want the human voice. First comes the country singing school, and next comes the country brass band. Let us do something to help them. You can do it by making these people pay me for everything that I compose. [Laughter.]

STATEMENT OF VICTOR HERBERT, ESQ.

Mr. HERBERT. Mr. Chairman and gentlemen, it is hardly necessary for me to add anything, I think, to Mr. Sousa's statement. I think he has made the question very plain and clear.

I would like to say this, that both Mr. Sousa and I are not here representing ourselves as individuals and our personal interests, but we stand here for many hundreds of poor fellows who have not been able to come here--possibly because they have not got the price--brother composers whose names figure on the advertisements of these companies who make perforated rolls and talking machines, etc., and who never have received a cent, just as is the case with Mr. Sousa and myself.

I do not see how they can deny that they sell their roll or their machine, because they are reproducing a part of our brain, of our genius, or whatever it might be. They pay, as Mr. Sousa said, the singer who sings a song into their machines. They pay Mr. Caruso $3,000 for each song--for each record. He might be singing Mr. Sousa's song, or my song, and the composer would not receive a cent. I say that that can not be just. It is as plain a question, Mr. Chairman, as it could be, to my mind. Morally, there is only one side to it, and I hope you will see it and recommend the necessary law.

Mr. CURRIER. Just an incident: The talking machine company that pays a singer gets no protection on that record under the law, either, does it?

Mr. HERBERT. I think they do.

Mr. CURRIER. Could not a competing talking machine company immediately reproduce those records?

Mr. HERBERT. Well, they would go for them.

Mr. CURRIER. I have an impression that there is no law under which they could.

Mr. HERBERT. I think they would.

Mr. CURRIER. I think there is no protection at all.

Mr. HERBERT. I know that we are not protected. Since the courts have held that the perforated roll is not an imitation of the sheet music we have absolutely no ground to stand on.

STATEMENT OF MR. HORACE PETTIT.

Mr. PETTIT. I represent the Victor Talking Machine Company. While I am not here as one of the advocates or proponents of the bill, it is very fitting, I think, at this time, immediately after Mr. Sousa's and Mr. Victor Herbert's appearance, that I should state what we have to say in regard to the talking machines. It may be that Mr. Herbert and Mr. Sousa have been somewhat abused by the talking-machine companies. They, however, certainly do not show it in their appearance.

Our position is to be equitable and just in the matter. We believe that there should be protection, and we are willing that this bill, with certain amendments we have to suggest, should be passed, substantially on the lines indicated, so that the composer should have the protection against his music or his compositions being copied on a record of a talking machine; with the understanding, however, that it does not apply to subsisting copyrights. I believe that is the understanding as expressed, although there is some ambiguity in the language, and therefore I would suggest that section 3, in that regard, be modified, either by striking out the section or by adding to it. Section 3 reads (reading):

SEC. 3. That the copyright provided by this act shall
extend to and protect all the copyrightable component parts of the
work copyrighted, any and all reproductions or copies thereof, in
whatever form, style, or size, and all matter reproduced therein in
which copyright is already subsisting, but without extending the
duration of such copyright.

I therefore would add to that, in view of that somewhat ambiguous language:

_And provided_, That no devices, contrivances, or appliances,
or dies, or matrices for making the same, made prior to the date
this act shall go into effect shall be subject to any subsisting
copyright.

This, I believe, is the intention of the framers of the bill, although it is somewhat doubtfully expressed. So much in that regard.

Further, gentlemen, if the talking machine companies are to pay the author and composer, as they will under this act if passed, a royalty on the copyrighted compositions, the talking machine companies should also be protected. We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, or any of the opera singers, a thousand dollars for making a record. It is perfectly possible, within the known arts, for that record, after we have made it, to be reproduced by a mere copperplating process by somebody else and copied, so that we would pay the thousand dollars or so and have no protection against the party manufacturing a duplicate of it. Therefore, not only for that reason, but for the other reasons which I shall briefly mention, the talking machine manufacturers should be entitled to register the particular records which they prepare, and that, therefore, should be included in the act.

The bill evidently is intended to cover talking-machine records, although it is somewhat doubtfully expressed.