That the works for which copyright may be secured under this act shall include all the works of an author.
That the works for which copyright may be secured under this act shall include all the works of an author.
Our position is that this is in direct contravention of the Constitution. If you will substitute in that clause the word used by the Constitution, and say that the works for which copyright may be secured under this act shall include all the "writings" of an author, then we do not object to that section.
Now, if you will take certain other sections of this bill, with that change made in section 4, and attempt to read them, particularly where the word "reproduce" occurs, or the word "reproductions" occurs, you will see the importance of it to us.
Take, for example, section 3, immediately above:
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.
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.
If you read that word "reproductions" with the word "works" in section 4 changed to "writings," reproduction means a very different thing.
If you will turn to section 18, on page 14, subclause b, you will find this language:
Any arrangement or reproduction in some new form of a musical composition.
Any arrangement or reproduction in some new form of a musical composition.
Mr.Chaney. What do you understand the word "works" to mean in section 4?
Mr.Cameron. It may mean anything that is reduced to writing, or that is not reduced to writing. It may be an oral speech that is absolutely wafted upon the winds of the air and never gets into permanent form. In proof of that we go to section 5, line 20: "Oral lectures, sermons, addresses."
The talking-machine art stands in a somewhat different position from that of the perforated music roll. You take a sheet of music and you have Sousa's or any other band play that music into the horn of an instrument, a patented apparatus. That machine engraves lines corresponding to what? To the sound waves produced by the band or the voice of the performer on the wax or other tablet.
Now, if you make that word "works" read "writings," as I understand, as the Supreme Court has interpreted the word "writings," it means this, in its broadest signification: That the idea of the author has been recorded in some tangible form, in such a way that another, through the eye, may have the idea of the author impressed upon his brain. That may be a painting; it may be the work of an artist. I think the Supreme Court has included a painting under that term because of that very fact, that the idea of the artist was recorded in some tangible form and, through the eye of the beholder, the idea of the artist was conveyed to the brain of the beholder. That is what a writing is, as I understand it, within the meaning of the Constitution.
Mr.Chaney. The effect of your argument is, then, to limit the word to something that can be read by anybody?
Mr.Cameron. Not necessarily by anybody.
Mr.Currier. But by somebody?
Mr.Cameron. Yes. I can not read Sanskrit.
Mr.Chaney. I mean to say, that can be read by persons understanding the same language?
Mr.Cameron. Yes; something that is capable of conveying to the reader, if you may call him such, the idea of the author.
Mr.Chaney. And in that respect it would cut out the music-roll proposition altogether?
Mr.Cameron. As my predecessor has told you, there is a dispute in regard to that, and I am not qualified to state. As far as I have been able to analyze the evidence, the preponderance is against the idea that the music roll can be read. But I do know this: There is a graphophone record of the disk form [exhibiting record to the committee]. There is a graphophone record of the cylinder form [exhibiting record]. I defy anyone—I defy Mr. Sousa to read that and tell whether it is one of his marches or whether it is a speech of a Member of Congress. [Laughter.]
Mr.Chaney. They are often very much alike. [Laughter.]
Mr.Cameron. They are both musical. [Laughter.]
Mr.McGavin. They are alike in volume of sound. [Laughter.]
Mr.Cameron. I am not making this statement theoretically nor as a lawyer. I make it as an expert in this particular art. I have spent months and months of time with the microscope myself striving to do that very thing, and I know it can not be done.
Now, let us go one step further. What is it that makes that graphophonic record valuable? I can take Mr. Sousa's score and I can select some person, some alleged musician in this audience, and I can hand him a graphophone and tell him to make that record, and it would not be worth one cent upon the market. It takes the genius of a Sousa to play into the horn. It takes the voice of the magnificent singer to sing into the horn; and it takes the skill of the mechanician who is operating the graphophone to make a fine record that has a marketable value.
You ask me if I would use Sousa's march, make that record and sell it, and not pay him any royalty. I answer, "Yes; I would;" because I have paid him royalty. Whenever Mr. Sousa publishes one of his pieces of music and puts it out upon the market and I pay the price of that music, that sheet of music passes from under the monopoly, just as when I patent a cornet and sell the cornet to Mr. Sousa, and he pays the price for it, it passes out from under the patent monopoly, and he has a right to use it. Suppose I should come here and say to you that every time one of Mr. Sousa's cornet players played the cornet that I had sold to him that he should pay me royalty for having played it! That is what he is asking of you. That is not all.
Mr. Sousa himself does not scorn, as he pretended to the other day, these "infernal talking machines." The day has been when Mr. Sousa himself came with advance scores and begged to have them put upon the machines, in order that they might popularize his own music. Nor is that all. He to-day is under contract, and he plays into these "infernal machines" with his band, and he is contributing, as he told you a few days ago, to stifle these "beautiful young voices that now have disappeared throughout our city and our land." [Laughter.] He does it for the almighty dollar. That is what he is after, and he frankly told you so.
Mr.Sousa. I am honest, anyway. [Laughter.]
Mr.Cameron. You are; and, as I said to you the other day, I respect you for it. All the men urging this bill are not as honest as you are, sir.
Mr.Chaney. That is neither here nor there. We give them all credit for being honest.
Mr.Cameron. I would not have made that remark if I had not been interrupted.
It was stated a moment ago, and it is a fact of which I wanted to speak, that the intention here is to give everyone a fair show. The gentleman here on my left (Mr. Webb) suggested that this bill would not prohibit the perforated music rolls (and the same question would apply to the graphophonic cylinder) from the reproduction of those pieces of music or other copyrightable works which had appeared and been copyrighted prior to this act. In that he is in error. Section 3 says:
Any and all reproductions, or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting.
Any and all reproductions, or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting.
So that it does not go only to matter that is copyrighted subsequent to the passage of this act.
Mr.Webb. I was speaking particularly of section g. That was the section that the gentleman was objecting to, and I referred to that particular portion.
Mr.Cameron. The act, however, would apply by reason of section 3 to subsisting copyright.
Mr.Webb. Yes; that may be so.
Mr.Cameron. There is a situation in the talking-machine art that is perhaps divisible. You see two distinct forms of records. The company which I represent—the American Graphophone Company—makes both of those forms. There are a great many other companies, some of them making the machines and the records, and some of them making only the records. Some of them make the cylindrical form of record and some of them make the disk form of record; but there are two large, prominent companies, one of which makes the disk form of record and the other of which makes the cylindrical form of record. As I say, the company which I represent makes both.
Follow me now, if you please. There is also as close a musical trust, as has already been said to you by my predecessor, in this country as it is possible to form. That extends not only throughout this country, but throughout the world. There are a few musical geniuses who are able to stand above it and make them scramble for the genius. You have two of them with you to-day, Victor Herbert and John Philip Sousa. But John Philip Sousa can not speak for the struggling young composer who is not powerful enough to compel this trust to come to him instead of the young man going to the trust.
How does that effect us? Did you hear any opposition to this bill from the attorney of the Victor Talking Machine Company? No. They make the disk form of record. Have you heard any opposition from the National Phonograph Works—the Edison Company—in regard to this bill? No. They make the cylindrical form of record. Why does the Victor Talking Machine Company come here with such a virtuous show of regard for the author, and say they have no objection to this? Why is not the representative of the Edison Company—the National Phonograph Works—here opposing this bill? Because, as I charge, and I think I can substantiate it before I get through—not here, but I mean before the hearings before this committee are through—there is under way the same iniquitous proceeding that was outlined to you by my predecessor in connection with the music rolls.
Mr.Pettit. That is absolutely untrue, as far as the Victor Talking Machine is concerned.
Mr.Cameron. You can have a chance to reply when your time comes.
One company gets the exclusive right to make the disk form of record from copyrighted music, and the other the exclusive right to make the cylindrical form of record. Let us assume for a minute that what the gentleman says is literally true. Let us assume, I say. Is it not possible for just that combination to be made, and should the American Graphophone Company, which has millions of dollars invested in the enterprise, honestly and fairly built up under the laws of this country, money put in and money which it had an absolute right to presume the law would protect—should that company be placed in the position where it should be practically driven out of business by any such monopolistic combination? Will you gentlemen give them that opportunity?
I am not prepared to say that this music publishers' combination is the most gigantic trust on earth, but it is an absolutely close and effective trust. You may reply that we have the right to play and put upon these records all of the old noncopyrighted productions, those that are now within the public domain. To that I reply that the perforated music roll man or the talking machine man who attempts to rely solely upon old music will go out of business inside of eighteen months. He has got to meet the demand for the popular airs of the day. He has got to be able to produce Sousa's and Victor Herbert's latest productions. "I want what I want when I want it." That is where the public stands. [Laughter.] You wait three years instead of fifty, and where would we be?
Moreover, we go to Japan, we go to China, we go to the various countries of the earth, and make these records—get the original records. We do not make the original record on that disk. We do not make it upon that cylinder. We make an original record from the voice of the singer. That original record in the case of the cylinder is first very carefully covered with plumbago, to render it electrically conductive. It is then electroplated with copper; by applying cold, the original record is shrunk out, and you then have a mold, which has on its interior a perfect counterpart of the sound groove cut upon the face of the original record. We pour into that mold melted wax, or a composition that is called wax in the trade. When that is hot, it takes the impression of the mold and retains that until it sets; and as it cools it contracts, and we are then able to withdraw that from the mold, and after trimming the ends, that reproduction, that copy, is as perfect a record as the original one. If it were not so, we could not make and sell a record for fifty cents when we have to pay the singer from $500 to $1,000 or $3,000 for making the original record.
Mr.Webb. I was going to ask, How do you get Mr. Sousa's pieces? Do you pay him for it?
Mr.Cameron. We do not; no, sir.
Mr.Webb. Who does?
Mr.Cameron. The Victor Talking Machine Company has an exclusive contract with Mr. Sousa, and he gets paid for that. He did not tell you that the other day.
Mr.Sousa. That is absolutely untrue.
Mr.Cameron. If it is untrue I am ready to beg the gentleman's pardon. I had that information direct this morning, but I will gladly withdraw it upon Mr. Sousa's word—gladly. I do not want to make any misstatement.
Mr.Sousa. I have never received one penny for my compositions from any kind of talking machine, nor have I ever made a contract with any of those companies.
Mr.Cameron. I did not state that. I stated that Mr. Sousa, with his band, played into the horns of these instruments to make these records and was paid for doing it.
Mr.Sousa. An organization known as "Sousa and his band," employed just as any other body of musicians, in which I have no part myself, plays into the instrument. That goes under arrangements made with the management of that organization to play anybody's compositions that these firms may elect; it may be a noncopyrighted piece or a copyrighted piece, or anything else.
Mr.Cameron. I am very glad Mr. Sousa stated that. He says that he does not play his own music only, but his band stands ready to play any other man's music, copyrighted or not copyrighted, into these machines.
Mr.Sousa. Not myself; no.
SenatorLatimer. I want to ask a question of Mr. Sousa, so as to clear the matter up a little further. The statement is that you have a band that plays into these instruments, and you, I understand, have denied that?
Mr.Sousa. No, sir; I do not deny that "Sousa and his band," an organization known as "Sousa and his band," play for talking machines.
SenatorLatimer. Do I understand you to say that you have no connection with that band?
Mr.Sousa. I am the director of that band, but I have no personal part in the performance of those pieces. I have never been in the gramophone company's office in my life.
Mr.McGavin. Do you play for anyone else besides the Victor Talking Machine Company?
Mr.Sousa. My manager has a contract with them for so many performances.
SenatorLatimer. You have an interest in the band and receive profit from it?
Mr.Sousa. Yes; surely.
Mr.Webb. You allow your name to be used all over the country?
Mr.Sousa. In the performance of these pieces, certainly.
Mr.Cameron. That was my charge.
Mr.Herbert. In regard to the untruth the gentleman has stated——
TheChairman. Do you want to deny any statement that he has made?
Mr.Herbert. Yes. In regard to this, naturally it would be inferred that it was the same case with me. In fact, he mentioned us two together. A band played into these instruments, calling itself "Victor Herbert's band," and I sued the talking machine company. That is what I got out of the company.
Mr.Cameron. The gentleman misunderstood me. I have made no statement in regard to him, and I have no information in regard to him one way or the other.
Mr.Currier. He made no charge against you, Mr. Herbert.
Mr.Herbert. Since our names have been linked all the time, I thought he intended what he said to apply to me also.
Mr.Pettit. I would like to say to Mr. Cameron in regard to his statement about the Victor Company and Mr. Sousa, that whenever we have used Mr. Sousa's music, or rather whenever we used his band on Victor records, we always paid him for it—that is, we pay Mr. Sousa for playing.
SenatorLatimer. I want to bring out one point in connection with that. In making these records, if I understand, now, Mr. Sousa has a band that represents him, playing these pieces, and you pay for that music when you get it, or do you not?
Mr.Cameron. Whoever employed Mr. Sousa pays for it.
SenatorLatimer. Then it is paid for when you get these records?
Mr.Cameron. I do not wish to be misunderstood. We can take and do take one of Sousa's marches and have another band, with which Mr. Sousa is not connected, play, and we make the record; and in that case Mr. Sousa does not get any of the compensation whatever. None of that goes to him.
Mr.Webb. But you do not advertise it as being played by Sousa's band?
Mr.Cameron. Not at all. We advertise it as Sousa's march.
Mr.Webb. You advertise it as a march by Sousa as a composer, but played by somebody else as the executant?
Mr.Cameron. Yes. That is recognized as such a valuable thing to the composer, that John Philip Sousa has been to the office of the American Graphophone Company, in years gone by, with advance scores, and asked them to send them out, to advertise and help John Philip Sousa along. He will not deny it. Moreover, we are flooded to-day with artists that are struggling on the lower rounds of the ladder, that are not as high up as John Philip Sousa was a few years ago, either, begging us to do the same thing for them. I mention that to show you that even John Philip Sousa, before he got where he bestrode the musical world like a colossus, even he recognized the advertising value of the talking machine to a composer. We are not doing him such a great injury.
Mr.Sousa. I would like to say, Mr. Chairman, that the gramophone, these talking machines, are really of very recent date. I believe the gentleman will agree with me when I say that if we go back fifteen years or sixteen years ago, we looked upon them purely as a toy. I remember the first one I saw here in this city where I was born. A gentleman had a man bark into it, and it was a remarkable thing to hear this thing bark——
TheActing Chairman. I would suggest, Mr. Sousa, that you are taking up this gentleman's time. Unless you want to specifically deny something that he has said, or ask a question, it is hardly fair to him.
Mr.Sousa. If I ever did allow the Gramophone Company to do it, it was because I did not think it was as important to them or to me as I do now.
Mr.Cameron. Please do not confuse us with the Gramophone Company. It is a different thing.
Mr.Currier. Do you wish to deny that you are a musical colossus? [Laughter.]
Mr.Sousa. No. I will admit that. [Laughter.]
Mr.Cameron. One thing more in regard to the constitutional question which I mentioned. I shall submit, or the company I represent will submit, a written brief. You will be addressed on that point much more ably than I can address you by Mr. Walker, who will succeed me.
I want, in closing, however, to emphasize one fact which my predecessor, I understood, was told was unnecessary. With all deference to the chairman, who said so, I disagree with him. That is the fact that not only was the American Graphophone Company and the talking-machine interests not notified, not only were these conferences—quarterly conferences, we might call them, held in secret——
Mr.Currier. I think you gentlemen had better all make it clear, when you speak about these conferences, that you do not refer to committees of Congress.
Mr.Cameron. No, sir; we do not. We refer to these star chamber proceedings, before this bill was introduced into Congress.
Mr.Currier. By whom? Not by anybody connected with the Congress?
Mr.Cameron. By Herbert Putnam and the men he brought around him. That is by whom.
Mr.Currier. I wanted it made clear that you were not referring to any committees of Congress.
Mr.Cameron. Every effort was made to keep us from knowing that any such bill was under way. It was not merely an act of omission, but it was an act of commission. That is not all. Not only were the American Graphophone Company not notified, but, if you will turn to the list of those present, you will find that one of those whom I have mentioned here, the representative of the Victor Talking Machine Company, at the third stage of the proceedings, was present—as what? As one of the musical publishers of the country, representing the Victor Talking Machine as one of the musical publishers of this country. See how close the association is.
The gentleman who follows me will point out that association a little closer. I think by that time the committee will realize that my suggestion of a close cooperation between the National Phonograph Works, the Victor Talking Machine Company, and the Musical Publishers' Association is well founded.
I thank you.
TheChairman. Gentlemen, we will meet to-morrow morning at 10 o'clock to hear Mr. Walker.
Mr.Burkan. I represent the publishers and the composers. An attack has been made here, and we feel that we should get at least several minutes to answer the charges that have been made.
Mr.Currier. You will have some time to-morrow. We meet at 10 o'clock to hear Mr. Walker for an hour. After that you gentlemen will have an opportunity to be heard, undoubtedly.
Mr.Cromelin. I was to appear here to-day for the manufacturers, in behalf of the talking machine interests, and was to follow Mr. Cameron. If the chairman pleases, I should be very glad to continue the first thing to-morrow morning, and let Mr. Walker follow.
TheChairman. I could not consent to that, because I understand that Mr. Walker has been notified that he will be heard the first thing to-morrow morning.
Mr.Cromelin. I think Mr. Walker will agree to that.
Mr.Walker. It will be quite consistent with my convenience to let this gentleman precede me for whatever time he wishes.
TheChairman. How long would you want?
Mr.Cromelin. Probably fifteen minutes to half an hour.
TheChairman. With that understanding, Mr. Walker, he will precede you.
Mr.Walker. Yes, sir. And I am to have an hour after that?
TheChairman. Yes.
(Thereupon the committee adjourned until to-morrow, Saturday, June 9, 1906, at 10 o'clock a.m.)
Committee on Patents,
House of Representatives,
Saturday, June 9, 1906.
The committee met at 10 o'clock a.m., conjointly with the Senate Committee on Patents, pursuant to adjournment.
Present: Senators Kittredge (chairman), Clapp, and Smoot; Representatives Currier, Dresser, Bonynge, Campbell, Chaney, McGavin, and Sulzer.
Mr.Putnam. I have one or two communications, Mr. Chairman, in effect addressed to the committee, which I offer for the record.
TheChairman. They may be inserted.
The communications referred to are as follows:
Washington, D.C.,June 8, 1906.TheJoint Committee on Patents,United States Senate and House of Representatives.Gentlemen: On behalf of the Photographers' Copyright League of America, having participated in the conferences called by the Librarian of Congress upon the subject of a new copyright law, we beg to say that we give our hearty assent to the principles of the bill as proposed. Of course, there are minor matters which might have been otherwise drafted by us, but we as cheerfully surrender such particular items, as did many other interests represented at the conference.Copyright legislation has for its basic principle the protection of the property of the copyright owner, and though remedies for damage are manifestly necessary, prevention of injury is the matter of highest importance to the copyright owner. Legislation which acts as a deterrent is the active principle of protection prescribed by the Constitution. For these reasons we believe the pending bill has been framed upon logical and consistent lines which, if enacted into legislation, will doubtless form precedent for other countries.Very respectfully,Photographers' Copyright League of America.B. T. Falk,President.Pirie Macdonald,Delegate.Horace Pettit Law Offices,Philadelphia, June 1, 1906.Herbert Putnam, Esq.,Librarian of Congress,Washington, D.C.Dear Sir: Referring to the proposed bill to amend and consolidate the act respecting copyright, a copy of which has been handed me, with your circular letter regarding suggestions, I would say that I would propose that the following clause be added continuously to the end of section 3:"And provided, That nothing herein contained shall apply to sound records made or to be pressed from dies or matrices manufactured prior to the passage of this act."That the following be added to section 18, paragraph (b), line 7, of said paragraph, between the word "composition" and the word "any," viz, "including any talking-machine record."The amendment to section 3 is mainly designed to protect talking-machine manufacturers who have invested very large sums of money in records and in dies or matrices for pressing the same, many of which contain musical compositions the notation of which has been copyrighted, but which under existing laws these records do not in any manner infringe. To now take away the right to use these matrices and records, into which so much money has been put, would be very unjust and inequitable and work a great hardship upon the talking-machine manufacturers—that is, if my reading and understanding of this bill is correct. This would tie up a very large amount of capital, and place the talking-machine record manufacturers at the mercy of the owners of subsisting copyrights.The object of the amendment to section 18, paragraph (b), is to relieve any doubt that records containing the characteristic articulation of the human voice, or the characteristic instrumentation by a performer, adapted for reproducing these characteristic utterances and performances to the ear are intended to be included as copyrightable matter under section 4 of this bill.I think there will 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.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 Aramas' 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 personality of every voice and instrumentation recorded.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 were not included. It is doubtless the intention of the framers of this bill to include such sound records as copyrightable matter, but in order to relieve the bill from any doubt it may properly be expressed in this section as I suggest.Hoping that this will meet with your approval, I remain,Yours, very truly,Horace Pettit.The Playwrights League Club,New York, N.Y., June 2, 1906.Librarian of Congress,Washington, D.C.Dear Sir: We are in receipt of your favor of the 31st ultimo, with copy of proposed copyright law. After careful consideration the provisions of this law seem admirably suited to the purposes, and its framers deserve great commendation.As circumstances do not permit my attendance at the hearings, I would consider it a favor if you would read this letter to the committee, if not all of it, then the portions which may not be referred to at the hearing, should anything herein referred to fail to be considered. The latter paragraphs of the letter are especially brought to your attention.In section 1, subdivision C, provision is made for the protection of an "oral delivery" which has been prepared. Would it not be well to specifically allow a speaker to announce at the conclusion of an extemporaneous address his intention of copyrighting it, not permitting this announcement, however, to interfere with the liberty of the press in reporting portions of it?Section 9 directs that notice of copyright shall be given at each public delivery of a lecture or similar work. Does "similar work" include dramatic composition? Is the proposed notice to be given orally, or by publication on a programme, if there is a programme? It would seem that in the case of a dramatic composition theatrical managers should be compelled by law to print on each programme copyright notice of the play or plays produced, being allowed, where there is no programme, to announce it orally.It would also seem important that in the case of a dramatic composition publicly acted in foreign countries notice of copyright in the United States, together with legal title of the work in English, be printed on the programmes, as well as on the manuscript copies of the play. This would serve as a notice against translators, who otherwise would have great difficulty in finding out whether a foreign play had been copyrighted here, since the name of the play or its English equivalent rather, would be very uncertain. Does the new law specifically require all titles to be also in English?Does the law provide for the registration of the title in advance of the deposit of copies as at present—a valuable privilege?Section 20 seems calculated to work an injustice to novelists. That the author's exclusive right to dramatize his copyrighted work should cease in the event of his being unable within ten years to induce managers to produce his dramatization would be unfair—would, in fact, encourage producers to wait until after ten years before producing a dramatization of a novel. Would it not be sufficient to state that the exclusive right terminates at the end of ten years provided the author does not file at least an unpublished dramatized version?Does this section 20 mean that a foreign dramatist who deposits an unpublished and untranslated copy of a dramatic composition loses his rights if his play is not produced publicly in ten years, or does it allow him to deposit a translated unpublished copy any time within ten years, in order to protect his rights?Section 45 might be profitably augmented by including the privilege of allowing an author who writes under a pen name to print the notice of copyright also under the same pen name. This would be a considerable privilege, since at present he must go through the complicated process of assigning his copyright to another if he does not wish his real name to appear. In his claim for copyright he could state both his real name and his pen name in which he wished the copyright to appear. This would work injustice to no one and would be a great convenience to authors whose real names are of an uninspiring nature.This section 45 might also contain a provision allowing an author to change the title of an unpublished work without deposit for further copies, provided he paid a fee, since almost every unpublished play is renamed. The duplication of copies of the same work under different titles is of no service to the copyright office and is frequently an expense to authors. The production of a play under any other than its copyrighted title should invalidate the copyright.The requirement of section 60, raising the copyright fee from 50 cents to $1, will work a real hardship to many writers, particularly those who write short plays for vaudeville and have a hard time to make a living, to those who write many plays without ever securing any returns, and to the writers of words of songs, whose work is apt to be stolen unless copyrighted and who receive a very small compensation in any event, as a rule. We would strongly recommend that for unpublished works and short articles in periodicals especially copyrighted and for photographs the fee be held at 50 cents, or even reduced to 25 cents.Upon the enactment of the new law the copyright office will receive from the dramatic writers a great many more works than are at present offered, owing to the unsatisfactory condition of the existing law. The number of dramatic compositions offered will also be greatly increased by the favorable fact of the omission on the notice of copyright of the year. At present the author of an unpublished play must state the year of his copyright on his title-page, and as it is often ten years or more after a play is written before it secures a production, this telltale date proves a great drawback in submitting the play to managers, and therefore many authors prefer to run the risk of losing their plays rather than to affix this hall-mark of antiquity. The prospect of this increased revenue should be sufficient to induce the makers of the law to reduce the copyright fee on unpublished works.I should recommend also that a specific clause be added making it a misdemeanor to copy from an unpublished manuscript any portion without authority, or to be found in the possession of an unpublished copyrighted manuscript or parts thereof without authority. This would correct two grave abuses, one, the stealing of an author's ideas and dialogue by a manager to whom the play might be submitted, and the second, the stealing of manuscripts after a play is produced. One bureau openly advertises and continually sells for a few dollars manuscripts of produced plays, and the sale of such manuscripts enables infringers to deprive authors of great sums in royalties. The adoption of such a section as this will, of course, be sharply contested, but there is absolutely nothing inequitable in it for any person not intending fraud.It might also be well to deny the privilege of copyright to authors who allow their plays to be publicly performed without first securing a copyright.I trust that none of these suggestions will be taken as a criticism of the proposed law, which will confer great benefits upon and will greatly stimulate native art, but I am confident that the importance of some of the proposed additions and the convenience of others will at once be seen.Allow me to thank you for your courtesy in sending us the copy of the proposed law, and to request the favor of any further matter which the copyright office may have to issue upon the subject.Yours, respectfully,The Playwrights League Club,ByEdwin Hopkins,President.Briesen & Knauth, Counselors at Law,New York, June 8, 1906.Register of Copyrights,Library of Congress, Washington, D.C.Sir: On behalf of a number of clients, who are interested in the new copyright bill, we respectfully beg to suggest that in order fully to carry out the broad purpose of the framers of the bill, the bill should be amended substantially as shown in the accompanying draft amendment.The bill as it now stands does not provide for the registration, by means of one entry, of a great many works of literature or art which from necessity are printed on detached sheets.Section 60 of the bill provides that several volumes of the same book or a series of photographs, drawings, etc., relating to the same subject—with variances only in pose or composition—may be registered for one fee. But a connected series of instruction carded for educational use, a series of color prints to be used on toy building blocks, sliced animals, games of authors, and other card games are protected. There is no doubt that a new game, such as pit, flinch, etc., should be copyrightable as a unit, whether with or without rules for instruction, in such a manner that all the artistic work and literary work may be fully covered by copyright, although the items of the series are not physically connected, and are not each provided with separate copyright notice.While the experts in charge of the bill may be able to phrase this purpose in words more apt than those contained in the proposed amendment, there is no doubt that it is the intention of the framers of the bill to include the articles referred to in this letter, and also that the bill as it now stands does not cover such articles.Respectfully,Briesen & Knauth.Proposed amendments to bill S. 6330.Section 5, page 4, after line 7 insert "(m) Miscellaneous."Line 12, change period to colon, and add:"And provided, furthermore, That a series of copyrightable works, assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, fee and notice should the applicant elect, whether or not the items comprising said series are actually joined by binding or otherwise."Section 60, page 38, line 15, change period to comma, and add: "or of a series considered as the subject-matter of a single copyright registration as provided for in section 5 of this act, where the items composing it are deposited at the same time under one title with a view to single registration."
Washington, D.C.,June 8, 1906.
TheJoint Committee on Patents,United States Senate and House of Representatives.
Gentlemen: On behalf of the Photographers' Copyright League of America, having participated in the conferences called by the Librarian of Congress upon the subject of a new copyright law, we beg to say that we give our hearty assent to the principles of the bill as proposed. Of course, there are minor matters which might have been otherwise drafted by us, but we as cheerfully surrender such particular items, as did many other interests represented at the conference.
Copyright legislation has for its basic principle the protection of the property of the copyright owner, and though remedies for damage are manifestly necessary, prevention of injury is the matter of highest importance to the copyright owner. Legislation which acts as a deterrent is the active principle of protection prescribed by the Constitution. For these reasons we believe the pending bill has been framed upon logical and consistent lines which, if enacted into legislation, will doubtless form precedent for other countries.
Very respectfully,
Photographers' Copyright League of America.B. T. Falk,President.Pirie Macdonald,Delegate.
Horace Pettit Law Offices,Philadelphia, June 1, 1906.
Herbert Putnam, Esq.,Librarian of Congress,Washington, D.C.
Dear Sir: Referring to the proposed bill to amend and consolidate the act respecting copyright, a copy of which has been handed me, with your circular letter regarding suggestions, I would say that I would propose that the following clause be added continuously to the end of section 3:
"And provided, That nothing herein contained shall apply to sound records made or to be pressed from dies or matrices manufactured prior to the passage of this act."
That the following be added to section 18, paragraph (b), line 7, of said paragraph, between the word "composition" and the word "any," viz, "including any talking-machine record."
The amendment to section 3 is mainly designed to protect talking-machine manufacturers who have invested very large sums of money in records and in dies or matrices for pressing the same, many of which contain musical compositions the notation of which has been copyrighted, but which under existing laws these records do not in any manner infringe. To now take away the right to use these matrices and records, into which so much money has been put, would be very unjust and inequitable and work a great hardship upon the talking-machine manufacturers—that is, if my reading and understanding of this bill is correct. This would tie up a very large amount of capital, and place the talking-machine record manufacturers at the mercy of the owners of subsisting copyrights.
The object of the amendment to section 18, paragraph (b), is to relieve any doubt that records containing the characteristic articulation of the human voice, or the characteristic instrumentation by a performer, adapted for reproducing these characteristic utterances and performances to the ear are intended to be included as copyrightable matter under section 4 of this bill.
I think there will 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.
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 Aramas' 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 personality of every voice and instrumentation recorded.
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 were not included. It is doubtless the intention of the framers of this bill to include such sound records as copyrightable matter, but in order to relieve the bill from any doubt it may properly be expressed in this section as I suggest.
Hoping that this will meet with your approval, I remain,
Yours, very truly,
Horace Pettit.
The Playwrights League Club,New York, N.Y., June 2, 1906.
Librarian of Congress,Washington, D.C.
Dear Sir: We are in receipt of your favor of the 31st ultimo, with copy of proposed copyright law. After careful consideration the provisions of this law seem admirably suited to the purposes, and its framers deserve great commendation.
As circumstances do not permit my attendance at the hearings, I would consider it a favor if you would read this letter to the committee, if not all of it, then the portions which may not be referred to at the hearing, should anything herein referred to fail to be considered. The latter paragraphs of the letter are especially brought to your attention.
In section 1, subdivision C, provision is made for the protection of an "oral delivery" which has been prepared. Would it not be well to specifically allow a speaker to announce at the conclusion of an extemporaneous address his intention of copyrighting it, not permitting this announcement, however, to interfere with the liberty of the press in reporting portions of it?
Section 9 directs that notice of copyright shall be given at each public delivery of a lecture or similar work. Does "similar work" include dramatic composition? Is the proposed notice to be given orally, or by publication on a programme, if there is a programme? It would seem that in the case of a dramatic composition theatrical managers should be compelled by law to print on each programme copyright notice of the play or plays produced, being allowed, where there is no programme, to announce it orally.
It would also seem important that in the case of a dramatic composition publicly acted in foreign countries notice of copyright in the United States, together with legal title of the work in English, be printed on the programmes, as well as on the manuscript copies of the play. This would serve as a notice against translators, who otherwise would have great difficulty in finding out whether a foreign play had been copyrighted here, since the name of the play or its English equivalent rather, would be very uncertain. Does the new law specifically require all titles to be also in English?
Does the law provide for the registration of the title in advance of the deposit of copies as at present—a valuable privilege?
Section 20 seems calculated to work an injustice to novelists. That the author's exclusive right to dramatize his copyrighted work should cease in the event of his being unable within ten years to induce managers to produce his dramatization would be unfair—would, in fact, encourage producers to wait until after ten years before producing a dramatization of a novel. Would it not be sufficient to state that the exclusive right terminates at the end of ten years provided the author does not file at least an unpublished dramatized version?
Does this section 20 mean that a foreign dramatist who deposits an unpublished and untranslated copy of a dramatic composition loses his rights if his play is not produced publicly in ten years, or does it allow him to deposit a translated unpublished copy any time within ten years, in order to protect his rights?
Section 45 might be profitably augmented by including the privilege of allowing an author who writes under a pen name to print the notice of copyright also under the same pen name. This would be a considerable privilege, since at present he must go through the complicated process of assigning his copyright to another if he does not wish his real name to appear. In his claim for copyright he could state both his real name and his pen name in which he wished the copyright to appear. This would work injustice to no one and would be a great convenience to authors whose real names are of an uninspiring nature.
This section 45 might also contain a provision allowing an author to change the title of an unpublished work without deposit for further copies, provided he paid a fee, since almost every unpublished play is renamed. The duplication of copies of the same work under different titles is of no service to the copyright office and is frequently an expense to authors. The production of a play under any other than its copyrighted title should invalidate the copyright.
The requirement of section 60, raising the copyright fee from 50 cents to $1, will work a real hardship to many writers, particularly those who write short plays for vaudeville and have a hard time to make a living, to those who write many plays without ever securing any returns, and to the writers of words of songs, whose work is apt to be stolen unless copyrighted and who receive a very small compensation in any event, as a rule. We would strongly recommend that for unpublished works and short articles in periodicals especially copyrighted and for photographs the fee be held at 50 cents, or even reduced to 25 cents.
Upon the enactment of the new law the copyright office will receive from the dramatic writers a great many more works than are at present offered, owing to the unsatisfactory condition of the existing law. The number of dramatic compositions offered will also be greatly increased by the favorable fact of the omission on the notice of copyright of the year. At present the author of an unpublished play must state the year of his copyright on his title-page, and as it is often ten years or more after a play is written before it secures a production, this telltale date proves a great drawback in submitting the play to managers, and therefore many authors prefer to run the risk of losing their plays rather than to affix this hall-mark of antiquity. The prospect of this increased revenue should be sufficient to induce the makers of the law to reduce the copyright fee on unpublished works.
I should recommend also that a specific clause be added making it a misdemeanor to copy from an unpublished manuscript any portion without authority, or to be found in the possession of an unpublished copyrighted manuscript or parts thereof without authority. This would correct two grave abuses, one, the stealing of an author's ideas and dialogue by a manager to whom the play might be submitted, and the second, the stealing of manuscripts after a play is produced. One bureau openly advertises and continually sells for a few dollars manuscripts of produced plays, and the sale of such manuscripts enables infringers to deprive authors of great sums in royalties. The adoption of such a section as this will, of course, be sharply contested, but there is absolutely nothing inequitable in it for any person not intending fraud.
It might also be well to deny the privilege of copyright to authors who allow their plays to be publicly performed without first securing a copyright.
I trust that none of these suggestions will be taken as a criticism of the proposed law, which will confer great benefits upon and will greatly stimulate native art, but I am confident that the importance of some of the proposed additions and the convenience of others will at once be seen.
Allow me to thank you for your courtesy in sending us the copy of the proposed law, and to request the favor of any further matter which the copyright office may have to issue upon the subject.
Yours, respectfully,
The Playwrights League Club,ByEdwin Hopkins,President.
Briesen & Knauth, Counselors at Law,New York, June 8, 1906.
Register of Copyrights,Library of Congress, Washington, D.C.
Sir: On behalf of a number of clients, who are interested in the new copyright bill, we respectfully beg to suggest that in order fully to carry out the broad purpose of the framers of the bill, the bill should be amended substantially as shown in the accompanying draft amendment.
The bill as it now stands does not provide for the registration, by means of one entry, of a great many works of literature or art which from necessity are printed on detached sheets.
Section 60 of the bill provides that several volumes of the same book or a series of photographs, drawings, etc., relating to the same subject—with variances only in pose or composition—may be registered for one fee. But a connected series of instruction carded for educational use, a series of color prints to be used on toy building blocks, sliced animals, games of authors, and other card games are protected. There is no doubt that a new game, such as pit, flinch, etc., should be copyrightable as a unit, whether with or without rules for instruction, in such a manner that all the artistic work and literary work may be fully covered by copyright, although the items of the series are not physically connected, and are not each provided with separate copyright notice.
While the experts in charge of the bill may be able to phrase this purpose in words more apt than those contained in the proposed amendment, there is no doubt that it is the intention of the framers of the bill to include the articles referred to in this letter, and also that the bill as it now stands does not cover such articles.
Respectfully,
Briesen & Knauth.
Proposed amendments to bill S. 6330.
Section 5, page 4, after line 7 insert "(m) Miscellaneous."
Line 12, change period to colon, and add:
"And provided, furthermore, That a series of copyrightable works, assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, fee and notice should the applicant elect, whether or not the items comprising said series are actually joined by binding or otherwise."
Section 60, page 38, line 15, change period to comma, and add: "or of a series considered as the subject-matter of a single copyright registration as provided for in section 5 of this act, where the items composing it are deposited at the same time under one title with a view to single registration."
Mr. Chairman, I ask leave to interpolate a word to the group of interests adverse to these "musical-device" provisions of the bill. I say it for the Government. And in order to avoid a syllable more than is necessary I have written it.
The reasons, gentlemen, why your group was not invited to the conferences were made plain in my opening statement. First, the conference was a conference of associations, and your interests are not organized into an association. But, second, the conference was to be particularly of those interests concerned "in an affirmative way"—that is, in amplifying the copyright protection; and your interests are negative. We quite anticipated the issue raised by these provisions, but it was not an issue which seemed appropriate to the conference nor for other reasons one likely to be settled by the conference.
Mr. Thomae represented that his interests might in one aspect be affirmative also and asked to hear the discussion. He was permitted to. He was not invited; he did not participate; he uttered not a word in the course of the entire proceedings. But he asked to come and listen, and he was permitted to. On the list of the few others present as observers you will find the name of Gen. Eugene Griffin. General Griffin came to us in March saying that he understood some such provisions as these were under consideration; he had some interest in a concern which would be affected; could he attend the conference and hear what was proposed? Certainly. And he did. Mr. Thomae was to us but the maker of a particular typical device. With Mr. Thomae as a competitor among you we had no concern. What device or company General Griffin was interested in we did not know and I do not know to this day. But we took care to insert the names of both gentlemen on the printed list of those present, so that you and others might be free to make such inference as you chose from the fact of their presence. And this list was furnished freely to all requesting it.
These conferences have been going on for a year past. The fact that they were being held, their purpose, and the associations participating in them was freely published. Among these associations were the composers and the music publishers. In the Apollo suit then pending they were trying to secure protection of this sort under existing law. There was every reason to suppose that they would urge it in the new statute. Did any of you ever inquire of us whether they were doing so? As long ago as last December the President announced to Congress, and in the most public way to the country, that the bill had already been prepared. Did you ask us for it? Did you even ask whether such a bill would be likely to include any such provisions? As long ago as January the music trade journals began to refer to the fact that it would do so. Did you then ask leave to come to the next conference? Did you ask even as to the character of the provisions? Did you communicate with the Copyright Office in any way in the matter? You know you did not.
The fact that you did not is not to prejudice you in any way, and the fact that you did not participate in the conferences I have myself emphasized to the committee to your advantage, pointing out that these provisions had been inserted without discussion at the conferences by any interest naturally adverse to them. The fact is to your advantage. I earnestly suggest that you avoid giving it a twist such as Mr. Cameron gave it yesterday; I mean by such expression as "star chamber proceedings." We can't let such imputations against the Government stand uncorrected. But we hate to have to divert attention from the main issue in order to correct them. The main issue is the merit of these provisions. We are as anxious as is the committee to know your substantial objections to them. And our interest is absolutely identical with that of the committee in seeing that the objections you show shall have due value and effect.
(The following letter was subsequently written by Mr. Putnam, and by direction of the chairman made part of the record:)