Chapter VII: Section 4: is the section upon which everything more or less hangs, and (1)

that is [reading]:

That the works for which copyright may be secured under this act
shall include all the works of an author.

That is all that it says in that regard. The purport, however, is to cover substantially everything that was covered by the former copyright act. In section 18 the different things copyrighted are specified, in which section the duration of the terms are provided. Section 18 states, for instance:

For twenty-eight years after the date of first publication in the
case of any print or label relating to articles of manufacture.

Then comes a proviso, and then:

(b) For fifty years after the date of first publication in the case
of any composite or collective work; any work copyrighted by a
corporate body or by the employer of the author or authors; any
abridgment, compilation, dramatization, or translation; any
posthumous work; any arrangement or reproduction in some new form
of a musical composition; any photograph; any reproduction of a
work of art.

I would suggest that you include in there, on line 14 of page 14, after the word "composition," the words "any talking-machine record;" so that there would be no room for doubt but what talking-machine records are intended to be included.

For this purpose I would also amend section 5 (p. 4, lines 2 and 3) by adding between lines 2 and 3, before the word "Phonographs," the following: "(j) Talking-machine records."

I want to say one more word in that regard: The talking-machine record is a new art. At the time that the former acts were passed and the Revised Statutes it had not acquired the state of perfection in which it is to-day. The talking machine is a writing upon a record tablet--not to be read visually, but audibly to be read through the medium of a vibrating pencil engaging in the record groove. This reproduces the thing that is uttered, in the characteristic manner in which it is uttered, and therefore that particular thing ought to be the subject-matter of a property right.

For instance, we might say that a particular piece would be sung or played by some country brass band, such as Mr. Sousa alludes to. The instrumentation there of that particular piece as recorded would be as different from the instrumentation of the particular piece when played by Mr. Sousa himself, from the stage of one of the great opera houses, as could be imagined; and what should be protected there is the particular instrumentation as it is played by Mr. Sousa, as he has rendered it. The same thing applies to any orator, or any actor, or any recitationist. It is a picture of the voice, as perfectly as a photograph is the picture of a man, or of a thing; and all the personality and all the characteristics of speech of the man uttering it are there recorded.

Mr. BONYNGE. Do you mean that if that lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it, so as to prevent him from giving another reproduction of the same lecture to another talking machine?

Mr. PETTIT. No, sir. That would be his right. His lecture is copyrightable. He has a perfect right to copyright that in the ordinary manner, and he has the further right, if he pleases, to have it copyrighted through the means of a talking-machine record, or, with his permission, we could do so. But wherever the thing is primarily copyrighted we could not use it in any sense without his permission.

Mr. BONYNGE. Yes; but after he has copyrighted it and you have got his permission to use it in your particular talking machine and have paid him whatever you may have agreed to pay him as compensation for the use of it, would you seek to prohibit him from giving that same lecture to another talking machine?

Mr. PETTIT. That would depend entirely on the terms of the contract; but that is not the idea at all. It is merely the means of recording a voice, the production of a particular man or band, or instrumentation, with all the characteristics of that particular voice or instrumentation, which we think should be subject to copyright.

Mr. CHANEY. Do you not think, then, if you want that sort of an amendment to section 18 that you should also amend section 4?

Mr. PETTIT. No, sir; I do not think that is necessary.

Mr. CHANEY. You think that includes it?

Mr. PETTIT. I think section 4 is broad enough to include it. You will understand that section 4 is understood to include a photograph. It is understood to include everything which is the subject-matter of copyright.

Mr. CHANEY. I was just about to ask this: Understanding that this talking machine is a new arrangement, and was invented later than the date of the original copyright law, by that very fact it might be necessary to mention it in section 4.

Mr. PETTIT. Well, I assumed that the word "author," as used by the Librarian of Congress in presenting the bill, was sufficiently broad to include anything which was originated of that character: and, as interpreted by the courts, for instance in the Sarony case (111 U. S. Repts., 59), it has been decided that the word "writing" was broad enough to include a photograph, and that therefore it would not be necessary to amend section 4, provided section 18 had specifically in it the words "talking-machine record," showing that it was meant to be included. Of course I should not object to including it. I should not object at all to having section 4 amended for that purpose, but I doubt whether it would be necessary under the circumstances.

Mr. CHANEY. You would be satisfied without its amendment?

Mr. PETTIT. I think so, provided the talking-machine record was inserted in sections 5 and 18.

There should be no question but that the particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra, etc., independent of the composition itself, whether it is copyrighted or not, should be equally entitled to protection, as a photograph or reproduction of a work of art.

The present-day thoughts and ideas may be recorded and reproduced through this new form of writing--that is, by recording the uttered sound upon a properly prepared surface in a sound groove, by which the varied undulations of the voice are formed in the groove by corresponding undulations, lateral or vertical. Here we have a true writing of the voice, recording uttered sound, recording not only words, thoughts, and ideas, but also recording the special particular expression and characteristic method of speech employed by the person uttering the sound. In other words, we have the exact voice, with all its individuality recorded, to be reproduced through the medium of the reproducing device employing a stylus operating in the groove.

Certainly a sound record is within the contemplation of the Constitution and should be unquestionably included in this proposed new act relative to copyrights.

It matters not whether the subject-matter of the record is otherwise copyrightable or not. If the piece played is copyrighted as a musical composition it can not be reproduced on a sound record, in accordance with the bill, without the permission of the composer. A Paderewski, however, may play the copyrighted selection, and a record of his rendition of it, with all his personality and individuality thrown into the piece, should be entitled to a copyright on a sound record for reproducing purposes.

This is true, also, of the voice of a Caruso or a Melba singing either a copyrighted or uncopyrighted piece. It is true, also, as a further illustration, of the recitation by Henry Irving of "Eugene Aram's Dream." What is here copyrighted in these records is the individuality and personality of the rendition by the performer. It is the picture of the voice or of the instrumentation as, for instance, a copyrighted photograph is a picture of a person or thing.

Should another performer play the same piece played by a Paderewski the personality of Paderewski would be absolutely wanting, and the same difference between the two performances of the same composition would be in the respective sound records as would exist at the actual performance of the respective pieces. The same differences between Caruso's rendition of a selection from Rigoletto and a concert-hall singer's rendition of the same would exist in the sound record and the reproduction therefrom as would exist in the actual singing of the selection. This is true regarding the personality of every voice and instrumentation recorded.

A large portion of the selections, musical and recitational, on talking-machine records are not copyrightable or copyrighted. These records, however, with all their originality, personality of the recitationist or singer, and peculiarity of arrangement, etc., should be copyrighted, and the private competitor prevented from purloining an artistic and characteristic production.

So-called talking-machine records in this respect differ quite materially from the mechanical organ and piano for the reason that a so-called talking-machine record is an exact record of all the modulations, and all the characteristic articulations of the voice, as well as of all the characteristics of an instrumentation. In other words, it is an exact picture of all the merits and demerits of the original, and the original is reproduced with an exactness, so that frequently, at a distance, in the present perfected state of the art, the reproduction may very well be mistaken for the original.

This record of the voice and instrumentation for sound reproducing is an art which was not commercially available or perfected when the earlier copyright laws were passed, and therefore was not included.

The following were submitted by Mr. Pettit at the meeting of June 8, 1906, embodying his proposed amendments to the bill:

JUNE 7, 1906.

_To the honorable Joint Committee of the Senate and House of
Representatives._

GENTLEMEN: Referring to the proposed bill, "To amend and
consolidate the acts respecting copyrights," now before the
committee, I would propose the following amendments:

Amend section 3 (p. 3, line 8) by adding continuously at the end of
said section the following:

"_And provided_, That no devices, contrivances, or appliances, or
dies, or matrices for making the same, such as referred to in
clause (_g_), section 1, made prior to the date this act shall go
into effect, shall be subject to any subsisting copyright."

Amend section 5 (page 4, lines 2 to 3) by adding between lines 2
and 3, before the word "Photographs," the following: "(_j_)
Talking-machine records."

Amend section 18, clause (_b_), (page 14, line 14) by adding
between the word "composition" and the word "any" the words "any
talking-machine record."

Amend section 23 by striking out from the clause marked "First"
(page 17, lines 18 to 20) the following: "or any device especially
adapted to reproduce to the ear any copyrighted work."

Amend section 23 by inserting in the clause marked "Fourth" (page
18, line 4), between the words "of" and "all," the following: "any
device, contrivance, or appliance mentioned in section 1, clause
(_g_) and."

These amendments to section 23 are for the purpose of making the
penalty relative to unlawful use of devices, etc., enumerated in
section 1, Clause Z, one dollar instead of ten, which latter amount
is excessive. It puts the device for reproducing sound on basis of
books, etc., instead of in the class of paintings, statuary, or
sculpture.

A brief memorandum of argument will be submitted later.

Senator SMOOT. I would like to ask Mr. Sousa a question. I was very much interested in your statement, Mr. Sousa, pertaining to talking machines taking the place of the human voice, and I will ask you this question: If you were protected in your productions and received a royalty from the talking machines, would that lessen the use of the talking machines any and strengthen the use of the voice and the brass band and the home choir, and so on?

Mr. SOUSA. I do not think so, but I think it will reduce two wrongs to one.

Senator SMOOT. Then, it is simply a question of your receiving the royalty that you think you are entitled to?

Mr. SOUSA. Yes, sir.

Senator SMOOT. I think there are other causes besides the general use of the talking machine that account for the fact that there is less singing than there used to be. I think we do not live quite as close to nature as we used to, and that that is what used to make us sing.

Mr. SOUSA. That is very true. But the more leeway you give the talking machine the greater encroachments they will make. If they are made to pay a royalty on all compositions that they use, perhaps they will not have so many bad ones in their records. [Laughter.]

Senator SMOOT. That is what I intended to find out, as to whether it was simply a personal affair.

Mr. CAMPBELL. Is not the real reason that if it protects you and other composers, there is an incentive to you to compose?

Mr. SOUSA. Oh, yes; I can compose better if I get a thousand dollars than I can for six hundred. [Laughter.]

Mr. CAMPBELL. That is the real reason.

STATEMENT OF PAUL FULLER, ESQ., OF NEW YORK.

Mr. FULLER. My original rôle, Mr. Chairman and gentlemen, was as one of the members of the Bar Association of New York, and as chairman of the committee to express to you gentlemen all the efforts that had been made and the most extraordinary result that has been accomplished from conflicting interests in getting up the framework of this bill, and to say on behalf of a number of the conferees, we will call them--the American Publishers' Copyright League, the America Publishers' Association, the National Academy of Design, the Fine Arts Federation, the Music Publishers' Association, the American Library Association, the Print Publishers, the Engraving Copyright League, the United Typothetæ, and the National Typographical Union--that they felt that a great achievement had been reached in getting the framework of this bill in its present condition. It is in such shape now that when anything is the matter with it we know where to apply the remedy. In the present chaotic condition of the copyright laws it would require an X ray to find where the mistake was and how to remedy it.

I did not intend to say more than a word, but the suggestions made by the last speaker, Mr. Pettit, are of so vicious a character--not intentionally so, but they show precisely how a good bill can be made bad--that I am going to extend my remarks for the five or ten minutes required to point out why they should not be regarded at all.

For instance, take section 3. Our friend wants to alter that, and it is absolutely unalterable if justice and common sense are to prevail. All that section says is that the copyright shall extend to 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.

If there is no copyright subsisting to keep a man from singing my song through a phonograph, there is no harm done. If it is subsisting, he must pay the penalty, and the courts will ultimately determine that. The question is now before the courts. It seems to me strange that any court should hesitate to say that a man who not only copies my notation, but who actually reproduces the music, the sound, should not be required to pay me for that privilege. If a man engraves my music and sells it by the sheet, he is a counterfeiter, and I can get money from him and punish him, but if he does more than that--if he completes that counterfeit to the extent of the reproduction of the actual sound that the composer had in his brain when he put it there--they say he has not imitated. That question is before the courts. Do not touch it. Do not touch it. This new law makes it certain for the future, but do not endeavor to touch the past. Let the courts decide what the present law is.

I say that the present law will protect these gentlemen from that piracy--because it is the ultimate form of piracy. It goes further than the reproduction of the composer's music sheet. It reproduces the sound. So that they have taken everything from the music man when they reproduce it on the disk. Therefore I say leave this provision in the bill: "And all matter reproduced therein in which copyright is already subsisting." Do not touch it.

In section 18 my friend (Mr. Pettit) wants to have the disks copyrighted. Mr. Bonynge put his finger right on the point of that proposition, and perhaps it is unwise for me to say anything further. That is a patentable device, and it has been patented, and there is nothing original on that disk--nothing original to the company that makes that disk. The company has borrowed it or bought it or stolen it from somebody else, and they want to copyright that. For heaven's sake, let the copyright stop somewhere.

Mr. Bonynge said: "Would you prevent the man who sang into your phonograph, or talked into it, from singing or talking into any other?" Certainly not. It is not an original production. It is not the work of an author or composer or artist. There is nothing intellectual about it, except that it is scientific, and the scientific part of it is protected by his patent. The reason I am so emphatic about that is that when you endeavor to put in the ideas of patents and the protection of inventions into this law you dislocate it and disarrange it.

Senator LATTIMER. The musician may memorize that music, and may entertain an audience with it, but he can not sing it into a phonograph; is that it? According to your position, as I understand it, the singer may take the music of Mr. Sousa, commit it to memory, and may stand before an audience and entertain the audience with Mr. Sousa's music and reproduce it to the audience, but he can not reproduce it in a phonograph?

Mr. FULLER. If he has paid Mr. Sousa for the privilege of that public performance. But he can not, at the same time, under the payment for the privilege of a one-night stand, sing it into a phonograph and give it to a million people all over the country.

Mr. BONYNGE. And he can not give that public performance unless he has paid Mr. Sousa his royalty?

Mr. FULLER. No.

Mr. MCGAVIN. Would not the copyrighting of this phonograph record give the musician, say Mr. Sousa, double protection? He already has the protection of the copyright on his sheet music, has he not?

Mr. FULLER. Yes.

Mr. MCGAVIN. And he would have the further protection of the copyright of the music as it goes into the phonograph, would he not?

Mr. FULLER. No; it is the talking-machine people who want a copyright on that, and to hold it against the original composer.

Mr. CHANEY. I did not understand Mr. Pettit that way.

Mr. FULLER. Mr. Sousa is entitled to it, whether he prints his music on a sheet of paper or whether he prints it on a disk; but the man that prints it on the disk is not entitled to it. That is all.

Mr. BONYNGE. He has not originated anything.

Mr. FULLER. No.

Mr. BONYNGE. Except that the disk is a patentable thing, and on that he has a patent.

Mr. FULLER. Yes. The bill is a compromise, and one which every lawyer here and every lawyer who was at the conference thinks he can better; but it is the best that could be had to protect and satisfy all the interests. It has been stated that perhaps none of the interests are entirely satisfied. If that is true, it is the best kind of a bill. There are only two kinds: The bill that is perfect, the one that satisfies everybody--and there is none such; and the one that satisfies nobody, because nobody has had injustice done.

Mr. SULZER. Mr. Chairman, I move that two copies of the proceedings of these hearings be printed, one for the Senate and one for the House.

Mr. CHANEY. I second that motion.

(The motion was carried, and the committee thereupon adjourned until to-morrow, Thursday, June 7, 1906, at 10 o'clock a.m.)

COMMITTEE ON PATENTS,

HOUSE OF REPRESENTATIVES,

_Thursday, June 7, 1906_.

The committee met at 10 o'clock a.m., pursuant to adjournment, conjointly with the Senate Committee on Patents.

Present: Senators Kittredge (chairman), Mallory, and Latimer; Representatives Currier, Hinshaw, Bonynge, Campbell, Chaney, McGavin, Sulzer, and Webb.

Mr. PUTNAM. Mr. Chairman, Colonel Olin was next upon the list of those who were to speak for particular groups in the conference. Colonel Olin participated in the conference as counsel for the American Publishers' Copyright League, and I think that he tends in his remarks to express something of the sentiments of some others of the publishing group.

STATEMENT OF STEPHEN H. OLIN, ESQ.

Mr. OLIN. Mr. Chairman and gentlemen, a number of different bodies, mainly publishing and reproducing bodies, which participated in this conference, thought it proper, in view of the dignity of this occasion, the unprecedented meeting of the committees of the two Houses, that they should collectively say in very few words what they all thought of this bill, that so they could best serve the committee, so they could best provide that nothing should belittle the force of the language of the President or the clearness of the presentation as to the bill made by the Librarian.

These bodies who have authorized me to speak in their behalf in this matter are the Academy of Design, the Fine Arts Federation, the American Publishers' Association, the American Publishers' Copyright League, which two bodies include practically all the publishers of the United States; the United Typothetæ, which include all the great employing printers of the United States; the Music Publishers' Association, some forty-two music publishers who, by habit, not only represent themselves but those musicians who rely upon them for protection; the Photographers' League of America, the Print Publishers' Association, which two bodies represent largely the illustrating interests of the country; the International Typographical Union, which, as the committee knows, represents the typesetters and printers; and finally the American Library Association, wish me on their behalf to say that this bill in its present form has their substantial approval. It is understood that suggestions of modifications as to detail may be made by these organizations individually through the Librarian of Congress; and I submit their signed paper to that effect to the committee.

Mr. Chairman, it seems to me that this simple statement on behalf of these bodies carries a very strong prima facie argument in favor of this bill. The greater part of the effort of the authors of this bill has been to provide in that field of copyright which Congress has already bounded and established, and which the existing law creates, a reasonable and orderly regulation; to provide against these conflicts and uncertainties and difficulties which the repeated amendment of the law has brought about.

I think everybody would, further, be glad if there could be such a bill as most men could read with some intelligence; that would not need not merely a lawyer, but a copyright lawyer, to interpret. I think most men would be glad, furthermore, in view of the importance of international copyright, if it were such a bill as an intelligent foreigner could understand and an intelligent foreign lawyer could advise about, and such a bill as that the people who are used to it here would thereby be taught something of the general copyright law and could better understand foreign rules. But at any rate, these organizations whose names I have read to you represent, with some few exceptions, roughly, the whole body of men interested in the actual working of the law. Most of them, I think, except those who are purely authors and creators, like the arts associations, have at some time or other been on each side of a copyright controversy. In their business some of them are owners of copyrights and desire to enforce their copyright as far as possible, and most of them are also desirous at times of using literary or artistic matter which is protected by copyright, and they desire that the law shall be precise, so that they can understand their rights and not unwittingly be guilty of offense.

So, for all these reasons, it seems to me that when they come to you and say, substantially, "This law is satisfactory to us," you may be sure that prima facie there is a law here that is an improvement on what at present exists, and which, on the whole, will give a reasonable and sane regulation of this most important matter. And of course if any of them come to you with special ideas as to improvement, you will hear and pass upon them for what they are worth.

I am going to leave that without any argument, because it seems to me the fact itself is persuasive and that it must impress this committee with the substantial value of this bill that has been presented.

There is one thing which the committee will naturally scrutinize with great attention, and that is every provision of this bill which in any respect seems to extend the field of copyright as Congress has previously bounded it; that is to say, which gives copyright upon some new article, or extends the term of copyright, or gives copyright to people who did not formerly possess it, or which in any degree limits the right of the public as against the copyright owner. The bill, I think, makes no very large incursion into that region, but it is that region which, I am sure, this committee will principally wish to examine. With your permission, I shall briefly speak of those things which occur to me as to such extensions.

First of all, the bill does extend the privilege of copyright to preventing the reproduction of musical sound or spoken words by machinery. That was spoken of before the committee yesterday. All that I can say about it is that this body whom I represent, although some of them have special interests in it (and they wish to be heard on it hereafter), in general look upon the matter as the circuit court of the United States in the second circuit looked upon it in their last decision on the subject, as being a matter germane to the copyright law, relating to the same kind of rights that Congress has hitherto protected, and that they see no reason why such rights should not hereafter be properly protected; and they respectfully refer the committee, so far as their suggestion goes, to the special information and advice of those on both sides of the question who have the greatest interest in it and the greatest capacity to inform the committee in regard to it.

The CHAIRMAN. Can you give the citation of the decision that you have mentioned?

Mr. OLIN. I can hand it to you. A printed copy of the decision was handed to me yesterday. It has not yet been reported.

Mr. CHANEY. That was the decision that was distributed yesterday?

Mr. OLIN. Yes; that is the one.

The CHAIRMAN. Unless there is objection on the part of the committee, we will have this decision put in the record.

(The decision referred to is as follows:)

UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT.

White-Smith Music Publishing Company, appellant, against Apollo
Company, respondent.

Judges Lacombe, Coxe, and Townsend.

These causes come here upon appeal from a decree of the United
States circuit court for the southern district of New York
dismissing bill alleging infringement of copyright. The facts are
stated in the opinion of the court below. (139 Fed. 427.)

Per curiam: The questions raised in these cases are of vast
importance and involve far-reaching results. They have been
exhaustively discussed in the clear and forcible briefs and
arguments of counsel. We are of the opinion that the rights sought
to be protected by these suits belong to the same class as those
covered by the specific provisions of the copyright statutes, and
that the reasons which led to the passage of said statutes apply
with great force to the protection of rights of copyright against
such an appropriation of the fruits of an author's conception as
results from the acts of defendant.

But in view of the fact that the law of copyright is a creature of
statute and is not declaratory of the common law and that it
confers distinctive and limited rights, which did not exist at the
common law, we are constrained to hold that it must be strictly
construed and that we are not at liberty to extend its provisions,
either by resort to equitable considerations or to a strained
interpretation of the terms of the statute.

We are therefore of the opinion that a perforated paper roll, such
as is manufactured by defendant, is not a copy of complainant's
staff notation, for the following reasons:

It is not a copy in fact; it is not designed to be read or actually
used in reading music as the original staff notation is; and the
claim that it may be read, which is practically disproved by the
great preponderance of evidence, even if true, would establish
merely a theory or possibility of use, as distinguished from an
actual use. The argument that because the roll is a notation or
record of the music, it is, therefore, a copy, would apply to the
disk of the phonograph or the barrel of the organ, which, it must
be admitted, are not copies of the sheet music. The perforation in
the rolls are not a varied form of symbols substituted for the
symbols used by the author. They are mere adjuncts of a valve
mechanism in a machine. In fact, the machine, or musical playing
device, is the thing which appropriates the author's property and
publishes it by producing the musical sounds, thus conveying the
author's composition to the public.

The decree is affirmed, with costs.

Mr. OLIN. The second extension or modification of the present rights of the copyright proprietor as against the public are those instances mentioned yesterday by the chairman of the House committee in regard to the exceptions to the prohibition of importation. As the law stands to-day the importation into this country of a book which is copyrighted here is prohibited, and there are certain exceptions, in the first case, of certain libraries and colleges who may import not exceeding two copies in one invoice, and individuals who may import not exceeding two copies in one invoice. This bill makes a modification of the present rule.

I would like to call the attention of the committee to the reason why the present law is as it is, and the reason why this suggestion of amendment is made. Of course, prior to 1891 there was nothing like this in the law. The law was perfectly simple, and had been perfectly simple for a hundred years. There could be no importation of the copyrighted article from abroad without the consent of the copyright proprietor. With his consent it could be freely imported. So far as I know there had never been the slightest dissatisfaction on the part of copyright proprietors or of the public with the working of that rule. As a matter of fact, it was to the interest of the copyright proprietor to bring in, I will say, the English edition of the book which he was publishing here, and to sell it--and so far as the public wanted it they always got it--at his shop or at other shops, through the regular channels of trade, so that the public and he alike were perfectly satisfied.

Mr. CURRIER. Were there any importations before 1881?

Mr. OLIN. Before 1891? I think there were.

Mr. CURRIER. With the consent of the copyright proprietor?

Mr. OLIN. I think, as a matter of fact, if you went into a bookstore you always found and could buy, at a somewhat higher price----

Mr. CURRIER. That is not the question. Were there any importations of such books?

Mr. OLIN. There were, by the copyright proprietors, who put them on sale and sold them through the trade.

Mr. CURRIER. Importations solely by the proprietor of the copyright--not by individuals?

Mr. OLIN. Yes, sir; not by individuals. Congress undertook in 1891 to do two things: First, to admit to the privileges of copyright the foreigners resident in certain countries; and, second, to require that the manufacture of copyrighted books should be by American typesetters and plate makers here in this country. And they undertook to do these things with the minimum changes in the language of the statute. They inserted a few words in one section, and then a few words in another, and both of the desired results were brought about, just as they exist to-day. Then, in the last part of the discussion in Congress, as I remember it--and I am open to correction as to the historical account--it became apparent that the typesetter was not duly protected if only those changes were made, for the reason that the copyright proprietor, having the free right to import books from abroad, might perhaps comply with the typesetting clause colorably only, in an imperfect way, and might satisfy the public demand for his books by importation of those set up and printed abroad. Therefore, at the typesetters' request, there was imposed a prohibition of importation which affected the whole world, including the copyright proprietor. Nobody could import books.

Mr. CURRIER. That was a perfectly satisfactory provision.

Mr. OLIN. That was a perfectly satisfactory provision, both to the copyright owner and to the typesetter; but then the general public were heard, and they said "no;" an English edition may be better than an American edition, for one reason or another, and you must not deprive us of the privilege of getting the best books. Libraries were heard, and individuals were heard. And Congress then hit upon this expedient, which was very simple and on the whole has been very effectual. Congress said:

But this prohibition shall not apply in the cases mentioned in
certain specified sections referred to of the tariff act.

The sections of the tariff act referred to enumerated a certain number of classes which Congress had thought were worthy of benefit from the Government to the extent of allowing them to import books in limited numbers free from duty. So there was ready-made for the hands of Congress a certain list of people who import books who might be allowed to benefit at the expense of the copyright proprietor, just as they had been theretofore benefited at the expense of the customs. That is the law as it stands to-day.

Then Congress added this further provision, that any individual also shall be allowed to import not exceeding two copies in one invoice on payment of the duty thereon, for use, and not for sale.

Like every other provision of a law after it has been duly tested by use, it is fair to bring it before the legislature again and to call attention to its results, and that is especially true where the provision of law was necessarily adopted with haste and was obviously a mere expedient for arriving at a wished-for result. And when this conference convened the publishers said: "To some extent this section has worked badly in certain ways," which I shall now point out. The librarians in libraries and the colleges have generally availed themselves of this privilege, being coupled with the privilege to import without the payment of duty, and have imported copyrighted books in those ways in large numbers. How far individuals have availed themselves of their privilege it is impossible, or at all events would be difficult, to tell; probably not to any great extent. The number of men who care so much for an English edition of a book that they are willing to write for it to a London bookseller and import it themselves is not very large.

So far as it goes, the privilege of importation is an inroad on the rights given to the copyright proprietor. It is an inconsiderable inroad so far as most popular books--novels and the like--which have circulation are concerned. The few hundred books that come to individuals here amount to not a very substantial burden upon the proprietor of such copyrights. But there are certain classes of books, expensive to produce, and with a very limited circulation--books of a scientific character, books illustrated with plates--and they circulate among the precise classes; that is, the libraries and the colleges and these individuals who are particular about their libraries, the precise individuals who import books under these exceptions; and there were instances brought before the conference where publishers here had declined to undertake a book which would have been valuable to the public, which would have been valuable to the typesetter to set up, and the American publisher to bring out, and to the American bookseller to sell, for the reason that the very limited public which these books addressed would all, in the natural course of events, have their demands filled through these exceptions to the prohibition of importations.

That did not hurt the libraries or the individuals who habitually get English editions. It did hurt, we maintain, the American public, the reading public, and a great many individuals among the American producing classes. So that there was a modification requested of the present rules, and the modification in regard to the libraries is this: There is to be not exceeding one copy to be introduced on an invoice, the privilege is not to relate to books which have their origin here in America. With your permission, I will briefly explain those two points. In the first place, ordinarily a library or a college needs only one book at a time. If it needs another copy of the same book it is not too much to ask that it make another importation to bring it in. Under the present rule, while delicate and careful men would not take advantage of it, it is constantly a temptation to a librarian who can import free of duty and free of the copyright proprietor's claims, two copies of a book from England, to import one for the legitimate use of the library and one for some other use. The effect of that influence can not be particularly measured.

The other point is one which can be clearly understood. It is now the right of colleges and libraries, an important right, that in case of an English book they should be able to get the English edition, which in some instances is more complete or for other reasons better than the American edition. But it can almost never be an important right to obtain the English edition of an American book since the American edition is almost always more complete, or equally complete. So that the right to import the foreign edition of an American book, a book of American origin, would ordinarily be confined to the Tauchnitz and the like editions with which the gentlemen of the committee are all familiar, where a continental publisher publishes English and American books for the benefit of travelers, and they are not allowed to be reimported into England or America. It seems to the publishers fair that the same rule which applies to every Englishman and every American as to such Tauchnitz editions should be applied to libraries; that is, that they should get the American edition, and not the other, of which the only advantage is cheapness, arising from its special purpose.

Whether or not these are reasonable changes has been very largely passed upon, it seems to me, in the controversy that has gone on with the American Library Association, which is a very powerful and very diligent and active association, and which has been very much interested in these matters; and in laying before you their approval of the bill in its present shape, it seems to me that as to this clause it must establish in the minds of the committee a clear prima facie case, at least, that this compromise that is agreed upon is a reasonable compromise. There are gentlemen here who represent certain libraries who, I understand, think that it is not a reasonable compromise.

Mr. CURRIER. That minority is a very strong one, is it not?

Mr. OLIN. I think it is a strong one; and they undoubtedly will be heard. They object that this compromise goes too far; and all that we can reasonably ask the committee at this moment is that if it occurs--if it seems to the committee that what this minority of librarians have to say overcomes the presumption of fairness that arises from a compromise satisfactory to the majority--that then the publishers may have their opportunity of showing to the committee that it is a fair compromise and a reasonable disposition of the matter.

Now, we come to the next clause of these exceptions.

Mr. CURRIER. Just an instant. Would the people you represent object seriously to an amendment to subdivision 3, on page 16, which would strike out all after the words "United States" where they occur?

Mr. OLIN. On page 16?

Mr. CURRIER. In the tenth line of subdivision 3.

Mr. OLIN. Are you reading from the printed form of the bill?

Mr. CURRIER. The library print.

Mr. CHANEY. Section 21?

Mr. CURRIER. I have not compared them. I have been using the library print all the time.

Mr. CHANEY. Just take the other bill.

Mr. PUTNAM. Section 30 of the bill.

Mr. CHANEY. Page 24 of the Senate bill.

Mr. CURRIER. Now, strike out all after the words "United States," in the twenty-fifth line, down to the fourth section.

Mr. OLIN. I am now speaking merely for the publishers, whom I do represent generally, and not for these other associations.

Mr. CURRIER. I was simply asking if the people whom you represent would make serious objection to that amendment.

Mr. OLIN. Speaking only for the publishers, I think they would. I think they would wish to be heard fully on that before any such change was made.

Mr. CURRIER. Right in that connection, let me call your attention to the first subdivision, beginning on line 13, which deals with the importation for an individual.

Mr. OLIN. On what page?

Mr. CURRIER. Page 24, line 13.

Mr. OLIN. Yes.

Mr. CURRIER. We would understand, would we not, that that was a practical prohibition of importations by individuals?

Mr. OLIN. No, sir.

Mr. CURRIER. Do you imagine that a book would ever be imported by an individual under that provision?

Mr. OLIN. I should think they would be habitually, and to a much larger extent than at present; and I will give you my reasons for it.

Mr. CURRIER. Would it not be a considerable inconvenience to secure the permission of the proprietor of the copyright?

Mr. OLIN. I should think none at all.

Mr. CURRIER. We would be glad to hear you on that, because it occurred to me that that was an absolute prohibition, in effect.

Mr. OLIN. I am glad to have my attention called to this, because this is a matter where we have not been able to make any compromise. There are no representatives of the public who could discuss such a compromise, and we come before the committee to submit it to their judgment as to its fairness in the first instance.

What I want to call the attention of the committee to is that the effect of this is simply to put the business back, as to importing one copy, to the condition that existed before 1891 as to importing all copies. We would be very glad, the copyright proprietors would be very glad, and the public would be very glad if it could altogether go back to that condition; that is, if you say books shall not be imported without the consent of the copyright proprietor. The copyright proprietor would then, as he did before, import books and put them into the trade and sell them freely.

Mr. CURRIER. Yes; the proprietor would import, but I think, in answer to an inquiry a few moments ago, you said that under the former law individuals did not import.

Mr. OLIN. No; but they did not need to.

Mr. CURRIER. Under that provision beginning on line 18, while the proprietor might import, do you think an individual would ever import--go to the trouble of getting the consent of the proprietor?

Mr. OLIN. I think the practical working of that would be just this----

Mr. CURRIER. I am only asking for information.

Mr. OLIN. The practical working would be this: Scribner & Co. would publish here a book which was also published in England. An individual would wish to get a copy of it in the English edition, and he would either go to the Scribners' store, or write to him, or he would go to his bookseller, who would send word to the Scribners, asking that a copy should be imported for that individual through Mr. Scribner, and Scribner would import it for him. That is to say, the individual would have far less difficulty, wherever he was situated throughout the country, in getting the English edition of the book than he has at present, when he himself writes to an English bookseller in London and imports it himself.

Mr. CURRIER. I am not expressing any opinion at all as to the correctness of that proposition, whether the individual should not be prohibited from importing.

Mr. OLIN. My point is that the facility with which the individual would obtain an English edition of an American copyrighted book would be greatly increased by the passage of this bill, because it would put it in the regular course of business, just as it used to be before 1891, for the owner of the American copyright to see to those importations. The law would not allow the proprietor himself to make the importations, but he would be exceedingly glad to import that book for A, B, C, D, and E, all over the country, and to make it just as easy as it was possible to do for them to get that English edition.

Mr. CURRIER. I am not at all sure that that is not so, but I think you agree with me that the individual himself, under that provision, would never directly import a book.

Mr. OLIN. I think he would not.

Mr. CURRIER. The proprietor would always do it for him.

Mr. OLIN. It would be so much easier for him to make the proprietor his agent, and the proprietor would be so glad to act as his agent, and it would be so much to the interest of both parties that that should be so that that would be naturally the course that it would take.

Mr. HINSHAW. Under existing law is the proprietor of the American copyright seriously injured by these importations?

Mr. OLIN. In ordinary cases, as I said, he is not seriously injured--that is, in the case of popular books he is not substantially injured at all. He does not know how much he is injured, because there is no means of estimating the precise amount. It is an injury, but how great he does not know.

Mr. HINSHAW. It is a sufficient injury, so that you think it ought to be restricted?

Mr. OLIN. It is a sufficient injury, especially in the cases that I have spoken of, where valuable books that cost very much to produce and that have a limited field of sale are in question, and there it does repeatedly prevent such books from being published in America.

Those are the only two limitations which affect the general public until we come to this provision of the bill which increases the term of the copyrights in different cases. As to them, of course the main argument is made by the producer, the author, or artist. He is the one who wants that addition to the term, and it is a matter of no great importance to these general organizations of reproducers whom I represent, one or two of them permanently and some only for the moment. But we may fairly make these observations: First, I repeat what was very clearly put by the Librarian yesterday, that the copyright is simply in the form of an idea, as the patent right is in the idea itself, and that consequently there is never like oppression to the public from the monopoly.

If I have a patent on a needle with the eye in the point, nobody in the country can use that until my patent is out, and that is a great oppression. If I write a book about a needle with the eye in the point, or about anything else under the sun, my idea, for what it is worth, is at everybody's disposal when my book is published. He can not copy my form, but whatever good the idea does him in his own thinking or his own work he has. That is the first consideration which has always actuated Congress and all governments, so far as I know, in making the copyright term much more extensive than that of the patent.

Then the next is a practical consideration which I think must be within the knowledge of every member of the committee, and that is that for practical purposes in most cases the public gives up nothing by extending the term, for the reason that at the end of forty-two years a very great majority of copyrights--I hesitate to say how large the majority would be--has become worthless. As a matter of fact, it is familiar to every member of the committee that people do not reproduce books that have fallen into the public domain by the expiry of the time of the copyright, except in very special cases of particularly popular works. So that in most instances the public would not be giving up anything really in adding to the end of this term a certain number of years.

Then, next, there is the consideration that in practice it is true that the public does now get the fullest opportunity to buy cheaply (which, I think, must be the only interest of the public as distinguished from the interest of the different producing classes) because books start at a certain price and at the end of a year they go down below that price. At the end of two years there are new editions at perhaps half the price, and in a very few years the publisher is making every effort to attract the public by every reduction that is possible.

There is one other consideration that I think may possibly be alluded to, and that is that since this term was fixed, partly by the improvements of science and partly by changes in legislation, the actual value of a given term of copyright has diminished. Part of the value of a term of copyright was always that at the expiration of the term the owner of the copyright had the plates and had the books and could compete to great advantage with other people. His right, his privilege in that respect, has been largely taken away by these photographic processes which have come into use. It is not necessary for the man who wishes to publish a book to go to work and have type set for it. He simply takes the existing edition and he photographs it, and he does that with great cheapness. Perhaps there would be an answer to this suggestion that the public should have the advantage that would come from all such cheapening processes; but it seems to me that it could reply that Congress has prohibited the copyright owner from taking advantage of these processes, by saying that he at first must make his book, as long as the copyright exists, in the most expensive way, from plates made by American mechanics and who receive American wages; and consequently that he is handicapped from the beginning.

I do not wish to press this argument unduly. It is something, it seems to me, that may be suggested to the committee, whether or not this committee is now to act with the same liberality which Congress showed when the existing term was fixed, if it would not necessarily in some degree extend the term by reason of the facts to which I have referred.