Chapter IX: Section 4: is the section upon which everything more or less hangs, and (3)

Mr. HILL. There is very little that I need to say. The
paragraph relating to the copyright respecting the libraries has
been taken up very carefully by the executive board and the council
and by the delegates, and we are satisfied as an association with
the draft as submitted, and, personally, I approve of the change
which has been agreed to this morning between the publishers and
the delegates. That related to the additional proviso that they
should not be prohibited from importing foreign editions in these
exceptional cases, where they could not get the American edition.

I think it is only fair to state, Mr. Librarian, that while the
executive board and the council of the American Library Association
have both voted for the adoption of this draft there will be
individual opposition. There are some librarians and some libraries
that are opposed to any change in any part of the law which affects
importation, and so have reserved the right to oppose that part of
the bill. I think it is due to you that such statement may be made,
so that you may know the individual opinion as well as the general
one.

If Mr. Bostwick had been here, he would to-day have called attention to that. I do it simply because those delegates are not here to say that; and I do it in order to give Mr. Cutter's remarks a proper standing before you. Mr. Cutter, as I understand it, represents librarians and libraries who object to any diminution of the present privileges.

(The papers referred to during the foregoing statement by Mr. Putnam are as follows:)

THE NEW WILLARD,
_Washington, D.C., 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 copyright, 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 (p. 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) (p. 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"
(p. 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" (p.
18, line 4), between the words "of" and "all," the following: "any
device, contrivance, or appliance mentioned in section 1, clause
(g) and".

Hoping that these proposed amendments will meet with the approval
of the committee, I remain,

Yours, very respectfully,

HORACE PETTIT,
_For Victor Talking Machine Company_.

JOS. W. STERN & CO., MUSIC PUBLISHERS,
_New York, June 5, 1906_.

Dr. D. P. LEWANDOWSKI,
_Care of Raleigh Hotel, Washington, D.C._

MY DEAR DOCTOR: We herewith authorize you to represent us and
speak in favor of the copyright bill at the meeting of the
committee. Honorable Senator Kittredge, or any other honorable
gentleman who will do anything to further the passage of this
bill, will earn our everlasting gratitude and will be working for
the advancement of an industry which has been sorely oppressed by
piracy and injustice.

There is an excellent opportunity now to show fair play to a body
of citizens who have been working at a disadvantage and fighting
for years for their just rights and for proper and adequate
protection from the Government.

With best wishes, we remain,

Yours, very sincerely,

JOS. W. STERN & CO.

_To the Committee of the Senate on Patents, Senator Alfred B.
Kittredge, of South Dakota, Chairman._

GENTLEMEN: I appear before you this morning in the name and as the
representative of the firm of Jos. W. Stern & Co., music
publishers, of New York, and in their behalf I wish to state that
the bill on copyrights S. 6330, to amend and consolidate the acts
representing copyrights, which is before you this morning, is of
the highest importance, for the protection of the authors and
composers and music publishers, to protect their copyrights.

The old law is very vague and unsatisfactory. The proposed new law
would help music publishers and composers very much.

There has been a great deal of piracy going on and their best
"hits" have been copied and pirated.

The new law makes such piracy a criminal offense, punishable by
fine or a year imprisonment. If passed, as we hereby most humbly
pray that it should be so, it will punish the pirates, because the
fine alone can not stop their unjust deeds, and they laugh and pay
their fine, but a year of imprisonment will certainly change all
for the best. The said pirate would not risk a year of prison at
all times.

Then again, the new law provides that no phonograph company or any
makers of musical instruments, as well as makers of self-playing
pianos, can deliberately use the work of the brain of the composer
as well as the property of the publisher without permission to do
so or paying some remuneration for the same.

Imagine the injustice of the thing. A composer writes a song or an
opera. A publisher buys at great expense the rights to the same
and copyrights it.

Along comes the phonographic companies and companies who cut music
rolls and deliberately steal the work of the brain of the composer
and publisher without any regard for the said publisher's or
composer's rights.

They sell thousands and thousands of the "hits" of the publisher,
which he has worked hard to make, without paying, as stated
before, a cent of royalty for them.

The new law proposed remedies this, but of course the phonographic
companies are fighting the new bill tooth and nail.

In this brief outline I shall include another important statement
to show how much work, and anxiety of the brain a composer must
use to write something in poetry or music, and what anxiety and
worry he endures until the said "hit" is an accomplished fact.
Sometimes his entire family depends upon the publishing of this
brain work, and when it is accepted and the publisher issues the
same for the public's appreciation, behold, in the next few days
every sort of instrument is playing this man's composition.

I for one have suffered this injustice and piracy. Therefore I
feel how dreadful it is in general to suffer and to be deprived of
remuneration for the just and intelligent inventive brain work
which a man produces by his genius.

This is, gentlemen, an excellent opportunity to show fair play to
a body of citizens who have been working at a disadvantage and
fighting for years for their just rights and for proper and
adequate protection from the Government. I conclude by appealing
most earnestly and respectfully to the honorable gentlemen of the
committee to do their utmost to forward the passage of this bill,
and I am convinced that they will earn everlasting thanks and
gratitude for creating a law which will earn for them recognition
and will carry their name to history for having worked for the
advancement of an industry which has been sorely oppressed by
piracy and injustice.

Believing that my most humble indorsement of this new law and the
desire of the firm of Jos. W. Stern & Co., who have authorized me
to address this body in their behalf, will soon be upon the
statute books protecting copyright, I have the honor to remain,

Very respectfully, yours,

D. P. LEWANDOWSKI, M.D.
34 EAST TWENTY-FIRST STREET, _New York City_.

A. W. ELSON & CO., EDUCATIONAL ART PUBLISHERS,
_Boston, June 5, 1906._

HERBERT PUTNAM, Esq.,
_Librarian of Congress, Washington, D.C._

DEAR SIR: As I do not expect to be able to be present at the first
hearing of the copyright bill which is now introduced in Congress,
I write to ask whether the suggestions that are made on the
accompanying sheet can be placed in the hands of the committee.

I should like to appear in favor of these suggestions at any
subsequent hearing that may be given by the committee on the bill.

I have arranged the suggestions in the order of importance from my
own particular standpoint.

As this may reach you during or after the hearing before the joint
committee of the Senate and the House, I have mailed a duplicate
of this to the chairman of the committee.

Very truly, yours,

A. W. ELSON.

_Suggestions of additions and amendments to the copyright bill
introduced before Congress May 31, 1906, entitled "A bill to
amend and consolidate the acts respecting copyright."_

_Section 5 (subsection J)._--That the words "and negatives" be
added after the word "photographs," so that subsection J shall
read: "Photographs and negatives."

Negatives are made the subject of copyright under the present
copyright law, and there seems to be no valid reason why they
should be omitted in the new copyright statute. It would very
much simplify the copyrighting of all photographic reproductions
if negatives were made the subject of copyright, and for the
purpose of registration two prints of the negative copyrighted
should be filed in the copyright office. I would therefore
suggest that the following words be added to section 11, seventh
line, after the word "edition," "or if the work be a negative,
two prints made directly from it."

_Section 13._--In this section typesetting and the lithographic
process are singled out from all other processes connected with
the manufacture of printed books, and given distinct protection
from foreign competition over all other processes in making books
that are copyrightable in the United States. Any such
discrimination is unjust, and if this section is retained, the
protection should be broadened to include any other processes
besides lithography.

I would therefore suggest that section 13 be amended as follows:
After the words "lithographic process," in the seventh line, and
after the same words on page 6, first line, nineteenth line, and
thirtieth line, there be inserted the words "or any other process
or method," and after the words "a process," in the same line,
the words "or method."

That the word "lithographs" in the second and third lines of the
same page be erased, and the word "illustrations" be inserted in
place of it; and on the same page, in the third line of that
portion of section 13 on that page that the words "where" and
"either" be erased. My preference would be to see the whole
section dropped out, but failing in this no undue preference
should be shown any one or two methods connected with the
manufacture of books.

_Section 39._--In its present form could be made clearer if it is
intended to secure to an author of an original work of the fine
arts any copyright which he may have obtained under the statutes
on his work. On the other hand, if the section is intended to
secure to an author or artist any potential copyright in a work
on which he had not duly secured statutory copyright, then such
provision, it would seem, would be unreasonable and unjust to the
purchaser of the work; and I would therefore suggest the
following wording for this section: "The author of any original
work of the fine arts being the owner of such a work and having
copyrighted it according to the provisions of this act or any
previous United States copyright act, and who has marked upon
such original work such notice of copyright as may be required by
the act under which the work was copyrighted, shall not be deemed
to sell or transfer said copyright upon selling or transferring
the original work of art unless an agreement in writing covering
the transfer of said copyright be signed by the author."

_Section 37._--Is open to the same criticism as section 39. It
might be corrected by the following changes, viz: That in the
third and fourth lines the words "which is the subject of
copyright" be struck out and the word "copyrighted" substituted
for them.

_Section 8._--In providing the conditions under which a foreign
author or proprietor of any work may obtain copyright on such
work within the United States, section 8 grants certain
privileges to a foreign proprietor which are not granted to an
American proprietor of a foreign work; as, for example, an
American proprietor of a foreign painting who desired to copy and
publish it in this country.

I would therefore suggest that section 8 after the words
"provided, however" in the fifth line and through subsection
(_a_) read as follows: "That copyright secured by this act shall
extend to the work of an author who is a citizen or subject of a
foreign state or nation only when such author or the proprietor
of the work (_a_) shall be living within the United States at the
time of the making and first publication of the work or shall
contemporaneously with publication in some foreign country
publish the work within the limits of the United States."

A. W. ELSON,
_146 Oliver street, Boston_.

NEW YORK, _June 4, 1906_.

HERBERT PUTNAM, Esq.,
_Librarian of Congress, Washington, D.C._

DEAR MR. PUTNAM: I regret to find myself, after the strain of
breaking up my home, totally unable to attend the meeting of the
Senate and House committees on the 6th. In fact, it is out of my
power to go to Washington this week for either the formal or the
informal discussions.

It seems to me that my time of active work, relative to copyright,
is about ended; and possibly I ought to resign from the presidency
of the American Copyright League. I am no longer the president of
the National Institute of Arts and Letters, Professor Sloane
having become my successor. I think the later draft of your bill
is in excellent shape as a basis for consideration by the joint
committee.

Respectfully, yours,

EDMUND C. STEDMAN.

LEO FEIST, MUSIC PUBLISHER,
_New York, June 1, 1906_.

Hon. HERBERT PUTNAM,
_Librarian of Congress, Washington, D.C._

DEAR SIR: Very many thanks for your courteous communication of the
29th instant, and I assure you that I appreciate the compliment
paid in the sending thereof.

If all is well, Mr. Witmark and myself will be at the conference.

Earnestly hoping that the bill will be passed in its present
perfect form, believe me,

Very truly, yours,

LEO FEIST.

WILCOX & BULL, COUNSELORS AT LAW,
_Buffalo, N.Y., June 5, 1906_.

Hon. HERBERT PUTNAM,
_Library of Congress, Washington, D.C._

MY DEAR MR. PUTNAM: I beg to acknowledge, with thanks, various
circulars and documents relating to the new copyright bill,
including the proof copy of the bill as printed May 19, and the
printed copy of the bill as introduced May 31, with notices of the
first hearing before the joint committees of the Senate and House,
on Wednesday, June 6, at the Library building, and of the
preliminary conference to be held to-day, all of which have had my
careful attention.

I congratulate you that the bill has taken this definite form and
is now to be given a preliminary hearing so that it will be in
shape to be urged for passage next winter. The bill is a monument
to the industry and broad intelligence and information of those
who have been actively concerned in drafting it, and particularly
of yourself and Mr. Solberg. I am proud to have had any share,
however slight, in outlining it, and shall be glad to take part as
actively as possible in urging it upon Congress and commending it
to the people at large.

As affecting the interest of my client, the Consolidated
Lithograph Company, which is a large producer of lithographic and
other prints, engravings, etc., especially for use as posters, the
form of the bill seems satisfactory to me and I have no doubt it
will be so to my client. This refers particularly to the
provisions of sections 4 and 5, defining the subject-matter of
copyright and the form of applications for registration. These
provisions are in the highest degree liberal and enlightened.

The Consolidated Lithograph Company has suggested that I attend
the hearing in Washington to-morrow. I should like to do this, at
least for the purpose of showing the interest which we feel in the
measure and to assist in impressing the committees of Congress
with its importance, though I know that after this hearing the
bill will simply lie over for further consideration and for action
at the next session. But it seems impracticable for me to be in
Washington to-morrow, and I think that I can be of more service at
a later time, when I hope that the company will still be disposed
to send me there.

Very truly, yours,

ANSLEY WILCOX.

P.S.--Will you please send me an extra copy of the bill, or two if
you have them to spare?

STATEMENT OF WILLIAM P. CUTTER, ESQ., OF THE FORBES LIBRARY, NORTHAMPTON, MASS.

Mr. CUTTER. Mr. Chairman and gentlemen, I claim to represent no association, nor to represent myself personally. I claim to represent only the public libraries of the following cities: Chicago, St. Louis, Baltimore, Louisville, Pittsburg, Newark, Minneapolis, Los Angeles, and Springfield, Mass. Also the libraries of the following universities and colleges: Yale, Cornell, Colgate, Wisconsin, Michigan, Amherst, and Brown; the New York State Library and the Connecticut State Library; the Western Massachusetts Library Club, comprising a membership of forty libraries, and the Connecticut Library Association, representing the organization of libraries in Connecticut. I wish to speak a few moments on that provision contained at the bottom of page 24 of the Senate print of the bill.

Mr. WEBB. What section?

Mr. CUTTER. Section 30; the third subsection of section 30, at the bottom of page 24, line 25, including all after the words "United States"--in other words, that portion of the bill which prohibits importation by public institutions of a certain class of books.

You are well aware of the fact that existing law allows public libraries to import two copies of any book without any restriction as to what the book shall be. There are certain points that will make the suggested legislation a great hardship to the libraries.

Mr. CURRIER. Pardon me just a minute. Can you import two copies of an unauthorized edition?

Mr. CUTTER. Yes, sir.

Mr. CURRIER. Can you do that to-day?

Mr. CUTTER. Yes, sir; we can now.

Mr. CURRIER. A fraudulent reprint, for instance?

Mr. CUTTER. Yes, sir.

Mr. CURRIER. There is absolutely no restriction, as you understand it to-day?

Mr. CUTTER. There is no restriction at all, as I understand, on library importations; but there is in this bill in regard to it.

Mr. CURRIER. I was asking about existing law.

Mr. CUTTER. Yes; I understand that libraries can import any books that they wish.

Mr. CURRIER. I had the contrary opinion, but I may be mistaken.

Mr. CHANEY. You object to that entire part of the bill, do you?

Mr. CUTTER. Yes; I object to it principally for this reason: In importations for large libraries, such as those that I represent--it does not apply to small libraries which import only a small number of books--a case of books will come in from abroad, books that are not copyrighted in this country, English books. One book in that case might, by a mistake, be one which was copyrighted here, printed in England, and containing no notice of its copyright in the United States of America. If that fact was discovered it would send all of that box of books to public store; it would place all the box of books, as I understand, in danger of being destroyed; and it would place the librarian who did the importing in danger of having to show the Secretary of the Treasury, under this law, that he was not guilty of trying to import that book illicitly.

Mr. CURRIER. Under what section of this law? Let that go in the record right here.

Mr. PUTNAM. Sections 28 and 29, I think.

Mr. CUTTER. Section 28 is in regard to the condemnation, on page 21 of the Senate print. Sections 26 to 29 include the penalties that I have referred to.

Our objection to that is the fact that libraries in these days must have at their disposal as quickly as possible the printed thought of foreign countries. If there is any delay in our obtaining the box of books (and those who have had experience, as I have, for thirteen years in importing books for libraries in this country, know that there is often six months delay in getting a box of books through the custom-house where there is the least question as to any of them) it would mean, practically, that our reason for buying the books at that time had disappeared. We want the printed English thought as quickly as possible.

Mr. CHANEY. Do you think that is necessary to the efficiency of a public library?

Mr. CUTTER. I do.

Mr. CHANEY. That you should get those books immediately?

Mr. CUTTER. I do; yes, sir.

Now, my other reason is a commercial reason; and in order to state it I shall have to go somewhat into ancient history.

About the year 1901 certain publishers of this country formed an association called the American Publishers' Association, and, in conjunction with the American Booksellers' Association, entered into an agreement to control absolutely the selling price of books in this country. It was an agreement among the publishers that they would not furnish books to booksellers who would not agree to sell the books at a standard price--in other words, a trust proposition.

Mr. CHANEY. We have heard of trusts before. [Laughter.]

Mr. CUTTER. The libraries were granted a 10 per cent discount from the price of the class of books affected by this agreement, so-called net-price books. We discovered, however, on examination, that these new prices which were fixed were so much higher that the net result to us was an advance of 25 per cent in the price of the book, and we found that the majority of those books were not books written by American authors, but they were books written by English authors and copyrighted in this country, and that there was a difference in price amounting to the 25 per cent tariff on printed books. So that this question, gentlemen, is a question of trusts and a question of tariff.

Now, the librarians have been getting around that by importing English books, because the same book printed on the other side is sold in the case of these expensive books at a very much reduced price compared with the price on this side. If--I am going back now to my first position--if I am prevented, by the difficulties in getting through, by accident, a copyrighted book, from getting at the noncopyrighted book so long, then I will be forced to go to Mr. Scribner, who will buy the books for me abroad at his price, against my interest.

Senator MALLORY. Do I understand you to say that that book trust is still in operation?

Mr. CUTTER. Certainly.

Now, I am connected with a library that spends $12,000 a year for books in a country town. Of this sum $5,000 is spent for English books. I am a representative of a city government which taxes itself to a certain extent to educate the people in its community, and I object seriously to paying $1,000 of that $12,000 to American publishers as a tax. That is my point.

Mr. CURRIER. What changes in this bill do you suggest?

Mr. CUTTER. I should suggest the entire elimination of that provision.

Mr. CURRIER. Of the entire paragraph?

Mr. CUTTER. No; after the words "United States."

Mr. CURRIER. That was the suggestion I made some time ago--after the words "United States," in line 25.

Mr. CHANEY. Yes; precisely.

Mr. CURRIER. Would that be satisfactory to the people whom you represent?

Mr. CUTTER. That would be satisfactory. I think it would be satisfactory to all librarians.

Mr. HINSHAW. This would allow you to import, however, but one book, whereas you have had the privilege of importing two?

Mr. CUTTER. One book, but we are perfectly satisfied with that. I think any library would be. A ruling of the Treasury Department has held that a branch library is a library itself, so that in the case of a large library wanting a book for each of several branches it would be possible to import more than one.

Mr. CURRIER. With that stricken out, the people you represent would not object to sections 26, 27, 28, and 29?

Mr. CUTTER. No; it does not affect them.

The other point I wish to make is on behalf of another interest. I wish to speak a word in behalf of an interest which is not represented here at all--two interests, in fact. The first is the firms that are in the business of importing books into this country and are not represented and have not been asked to be represented; have not been asked to come to these meetings. There are certain firms that are not in the publishing business that are in the business of importing books.

Mr. CURRIER. I think we ought to say right there, as you say they have not been asked, that the committee invites everybody.

Mr. CUTTER. Yes; I mean up to this time they have not been asked.

Mr. CURRIER. Those who were not represented at the conference, as well as those who were.

Mr. CUTTER. Whether they were asked here or not I do not know. Of course, this being a public hearing, they had a right to appear. But the point I want to make is this: That a great many of our libraries have to import books through these men, because they get a cheaper rate of importation through them than through some of the firms that are also publishers of books. This would prevent the importation of some of these books through those firms. It would practically ruin their English business, largely ruin it; and on behalf of a library that uses that method of importation largely, it seems to me that some provision might be made for other importers than those who are publishers of books.

Those are the only arguments that I wish to present.

Mr. CHANEY. To what section of this bill do you now refer?

Mr. CUTTER. I am referring to the subsection of this same section on page 24--section 30.

Mr. CHANEY. Do you mean subsection E?

Mr. CUTTER. Yes.

Mr. CURRIER. No; the subdivision called "First."

Mr. CHANEY. Oh, I see.

Mr. CUTTER. I suggest this amendment to the clause reading, "When imported, not more than one copy at one time, for use and not for sale, under permission given by the proprietor of the American copyright."

I suggest leaving out the consent of the American copyright proprietor. That changes existing law only in these particulars: It allows the importation of only one copy instead of two copies, as the existing law does; it gives the importer who has established a business here based on legislation, and who is closely in touch--the firms that I speak of serve libraries and learned men mostly with expensive books and have practically no sale to the ordinary public--it would give them an opportunity, and it would give a scholar in this country who wants a book for a particular purpose for his own use and not for sale an opportunity to import it.

Mr. CHANEY. So that if you strike out "under permission given by the proprietor of the American copyright" it satisfies them?

Mr. CUTTER. It would satisfy the request of the importers, who are not publishers.

Mr. CURRIER. Do you appear for the importers?

Mr. CUTTER. I appear for one of them only.

The CHAIRMAN. Do you feel that you are authorized to speak for the others?

Mr. CUTTER. I am authorized to speak for one firm only.

The CHAIRMAN. Do you feel that you represent the other importing firms?

Mr. CUTTER. I do not; no. I am quite convinced that I would be allowed to represent them, but I have had no communication with them.

Mr. BONYNGE. But you think you state their views on the subject?

Mr. CUTTER. I have not any doubt of it.

Mr. CHANEY. You spoke of "ancient history" back as far as 1901. Do you regard anything back behind that as ancient history?

Mr. CUTTER. No; but it is ancient history in the book business. That is when the publishers of this country discovered that the Carnegie gifts had made the library trade so large that they must do something to make some more money out of it.

Mr. PUTNAM. With your permission, Mr. Chairman, I would suggest that Mr. Bethune, representing certain of the reproducing interests particularly--I ought not to limit that by the word "reproducing," but who represented at the conference the Reproductive Arts Copyright League--should be heard.

STATEMENT OF FANEUIL D. S. BETHUNE, ESQ.

Mr. BETHUNE. There are but two or three sections which the Reproductive Arts Copyright League wish at this time to comment upon.

Mr. Millet, on behalf of the artists, has stated that they are satisfied with the sections relating to paintings as they stand, but as I understand it the word "accessible," in section 14----

Mr. CHANEY. Whereabouts?

Mr. PUTNAM. It is the last line on page 10 of the bill.

Mr. CHANEY. I see.

Mr. PUTNAM. It is in the second paragraph in the Library print.

Mr. BETHUNE. That is such an indefinite, uncertain term that we think----

Senator LATIMER. What are you referring to; what term?

Mr. BETHUNE. The word "accessible"--"or if a work specified in subsections F to L, inclusive, of section 5 of this act, upon some accessible portion of the work itself or of the margin," etc.

Mr. CHANEY. Where would you put it?

Mr. BETHUNE. Let it be on some accessible portion, but let the bill provide that it shall be always uncovered. As it stands now, it might be on the back of the painting, and the painting might be in a box, and it would be accessible in a sense.

Mr. CHANEY. You would put in the word "uncovered?"

Mr. BETHUNE. It should be uncovered.

Mr. PUTNAM. Accessible and uncovered?

Mr. BETHUNE. Accessible and uncovered. We want to be able to ascertain at once by examining the painting in the frame, if it is in a frame, whether the picture is copyrighted or not.