the English, German, French, Austrian, and Italian societies. Those societies were organized for the protection of the public performance rights of musical authors against piracy, and represent the leading composers and authors of music practically the world over. behalf, also, of these people we state we have no desire to control any performance that is given for purely charitable, educational, or religious purposes.

On

I think Mr. Solberg has stated that when he framed this bill it was done without conference or consultation with any of the interests affected by copyright. I knew nothing about the origin or preparation of this bill. The first time I saw it was when it was in the printed form in which it now appears before you for consideration. I unhesitatingly say that if I had been called in conference while the bill was in the course of drafting I am quite sure I would have made various suggestions with a view of making it more advantageous to the interests I represent. But there is no proper way of drawing a copyright bill other than the way adopted here. Some impartial, absolutely neutral source must prepare it, otherwise it is drawn from the selfish slant and point of view principally of a selfish group, without that meticulous concern and that due regard for the other interests affected by copyright.

Mr. REID of Illinois. Could you have made this thing with any more selfish slant in your interest?

Mr. BURKAN. I certainly could. But we accept it without the slightest criticism, because it possesses that absolute equality and fairness to all affected thereby, so essential for any measure intended to protect the creator of literary property against despoliation and to secure to him the full fruits of his literary efforts.

Now the most important, significant and serious portion of the bill, from the standpoint of the musical author, is the elimination therefrom of the so-called "compulsory license provisions" found in the present law. Those provisions are contained in section 1, subdivision (e) and section 25, subdivision (e) of the existing law, which provide that whenever the owner of any musical work composed after the 1st of July, 1909, shall himself have reproduced such work, upon music rolls or phonograph records, or permitted or knowingly acquiesced in such reproduction of such work, any other person may make similar use of the work upon the payment to the owner of a royalty of 2 cents on each such record or roll manufactured; and the musical author may require, and if so the manufacturer shall furnish, a report under oath on the 20th day of each month of the number of rolls or records manufactured during the previous month, and the royalty shall be due on the records or rolls during any month upon the 20th of the next succeeding month. In case of the failure of such manufacturer to pay to the musical author within 30 days after demand in writing the full sum of royalties due at said rate at the date of such demand, the court may award taxable costs and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of the act, not exceeding three times such amount. In other words, a defaulting manufacturer may be required to pay not exceeding 6 cents per roll or record in the discretion of the court, for a wilful refusal to pay royalties.

The act further provides that the musical author, if he himself reproduces his composition upon music rolls or phonograph records, or licenses others to do so, must file notice thereof in the copyright office, failing which it shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright.

Under section 25, subdivision (e), the manufacturer must serve notice of his intention to use the composition for reproduction on music rolls or phonograph records, by registered mail upon the copyright proprietor, at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do, the court may, in its discretion, award in lieu of profits and damages, the sum of 2 cents upon every music roll or phonograph record, and in addition thereto, a further sum not exceeding 6 cents per record or roll, and also a temporary injunction until the full award is paid.

The law itself without any further act of the parties to the transaction, constitutes the contract between the owner of the copyright and the mechanical instrument manufacturer. For that contract to come into being, but three things are necessary:

First. The use of the work for mechanical reproduction, either by the owner or by another with his permission or with his acquiescence. Second. The filing by him of a notice of these facts in the copyright office.

Third. The serving of a notice by the mechanical instrument manufacturer of his intention to reproduce the work in question and the sending to the copyright office a duplicate thereof.

As the term "compulsory license" implies, it becomes obligatory upon the owner to sell the right of mechanical reproduction of his copyrighted work at a price fixed by the statute, to any one that desires to buy, without regard to his character or his business or financial standing.

The musical composer is thus forced to enter into a business relationship with a stranger, although the relationship involves trust and confidence, because the compensation is not for a lump sum, but upon a royalty basis upon the number of records or rolls manufactured.

The law places the composer at the complete mercy of the manufacturer. The number of records and rolls manufactured, the matter of an accurate checking up of the number of such instruments manufactured, the keeping of accurate records and books, and the furnishing of accurate accountings, and the prompt payment of the moneys due are matters that vitally enter into the transaction.

The compulsory license feature of the law, therefore, subjects the composers as a class to restrictions in the use of their property that other authors and inventors are not subjected to. It is arbitrary, discriminatory class legislation in the highest degree.

This restriction destroys the composers' freedom to contract with respect to their property.

No other or similar compulsory license law has ever been enacted in the copyright or patent statutes of this country.

In order to fully understand this subject, it is quite necessary to take a survey of the situation as it existed prior to the enactment of the act of 1909.

ENDIAY [0,

Perforated sheets for operating automatic musical instruments and wax cylinders for use in phonographs were introduced in the eighties. The crudities of the mechanisms were such that they excited neither the curiosity nor the interest of the composers. They, in fact, paid no attention to them and regarded them at first as mere toys, then as fads.

The extraordinary improvements of recent years in the manufacture of these mechanisms had not yet taken place.

The first case of infringement arising out of the manufacture of these devices was Kennedy v. McTammany (33 Fed. 584), decided January 27, 1888. In that case the plaintiff, the copyright owner of a song, complained "that the defendant makes perforated papers which, when used in organettes, produce the same music.'

In holding that there was no infringement, the court said:

The sole question in issue is whether these perforated sheets of paper are an infringement of copyrighted sheet music. To the ordinary mind it is certainly a difficult thing to consider these strips of paper as sheet music. There is no clef, or bars, or lines, or spaces, or other marks which are found in common printed music, but only plain strips of paper with rows of holes or perforations.

* * I can not convince myself that these perforated strips of paper are copies of sheet music within the meaning of the copyright law. They are not made to be addressed to a machine. They are not designed to be used for such purposes as sheet music, nor do they in any sense occupy the same field as sheet music. They are a mechanical invention made for the sole purpose of performing tunes mechanically upon a musical instrument. The bill itself states that they are adapted and intended for a use wholly different from any use possible to be made of the ordinary sheet music. Their use resembles more nearly the barrel of a hand organ or music box.

Stern v. Rosey (17 App. Div. 562) followed this decision and held that wax cylinders for use in phonograph machines were not infringements of the composer's copyright, because they were "wholly incapable of use save in and as a part of a machine specially adapted to make them give up the records which they contained. These prepared wax cylinders can neither substitute the copyrighted sheets of music nor serve any purpose which is within their scope. In these respects there would seem to be no substantial difference between them and the metal cylinder of the old and familiar music box. * * * "1

These devices when first introduced were not regarded as occupying the same field as sheet music nor as competitive with sheet music. The extraordinary improvements in instrumental players, the composing of music specially designed therefor, the use of automatic recording devices, and the enormous circulation and sale of music rolls and phonograph records, made very serious inroads in the monetary returns from the sale of sheet music.

Neither case was appealed, but were decisions of courts of first instance.

In this state of the law, with this mechanical industry increasing the sales of records and rolls by leaps and bounds, and the composers receiving no remuneration therefor, the Aeolian Co., a larger manufacturer of music rolls, induced a number of music publishers to sign a form of license agreement with it under which it agreed to pay all proper expenses of conducting a suit for the purpose of testing the applicability of the copyright laws to perforated music sheets, and that if the court of last resort should in such suit decide that the copyright laws are applicable to such perforated music sheets, then

in such case, and from that time forward, the Aeolian Co. would pay to the publishers a royalty of 10 per cent of the retail sales price of these rolls, in consideration of which, the publishers agreed that the Aeolian Co. was to have an exclusive license to reproduce their compositions for a term of years.

These publishers were influenced to sign these agreements in the hope and expectation that in view of the advanced state of the art, that the highest court would hold that records and rolls were not a competitive field with sheet music and that they came within the control of the copyright proprietor. Thus they would reap some benefit from this form of exploitation of their works where theretofore they received nothing. A long, tedious, expensive litigation was in sight, which no one was willing to finance.

No composer, however, was party to any such agreement or agreements.

Such test suit was accordingly commenced and prosecuted through all the courts to the Supreme Court of the United States, in what is now known as the famous case of White-Smith Music Co. v. Apollo Co. (208 U. S. 1).

The district court (139 Fed. 427) August 4, 1905, dismissed the bill for the want of equity, upon the ground that a music roll was not a sheet of music within the meaning of the copyright statutes.

The decree was affirmed in the Circuit Court of Appeals for the Second Circuit (147 Fed. 226), May 25, 1906, the court saying on such affirmance, at page 227:

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.

In other words, while the then law was not sufficient to extend the copyright control to the manufacture of records and rolls, Congress ought to enact a law to protect the composer against the reproduction of his works upon these mechanical instruments in the same manner as it protected him against any other use of his property.

Mr. REID of Illinois. Is that Justice Day's decision?

Mr. BURKAN. No, sir; this is the decision of the circuit court of appeals.

From this affirmance an appeal was taken to the Supreme Court of the United States. The Supreme Court affirmed the lower courts, holding that music rolls were not copies of sheet music within the meaning of the then copyright act. (White-Smith Music Co. v Apollo Co., 209 U. S. 1, decided February 24, 1908.)

Mr. Justice Day, in his opinion, made this observation at page 18: It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturers thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the Government. Justice Holmes, in his specially concurring opinion, said at pages 19 and 20:

A musical composition is a rational collocation of sounds apart from concepts, reduced to a tangible expression from which the collocation can be reproduced either with or without continuous human intervention. On principle anything that mechanically reproduces that collocation of sounds ought to be held a copy,

or if the statute is too narrow ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose.

In other words, that Congress was the proper authority to accord to composers of music protection against this form of reproduction of their works.

A bill in the form of the revision of the act of 1909 was then pending. Long and patient hearings were held by this committee thereon. The committee finally reported the bill to the House, accompanied by a report of great length and most exhaustive in detail. That report was of great moment and of great importance, because it says what that committee intended regarding the extension of copyright control to these devices. The committee had intended at first to give to the composer full and complete control over the reproduction of his compositions in the manufacture of these devices. In expressing that thought it used the clearest and the precisest language in that report. I am referring the committee to the report on the act of 1909, Report No. 2222, accompanying bill 28192, second session, Sixtieth Congress. The committee said:

It was at first thought by the committee that the copyright proprietors of musical compositions should be given the exclusive right to do what they pleased with the rights it was proposed to give them to control and dispose of all rights of mechanical reproduction, but the hearings disclosed that the probable effect of this would be the establishment of a mechanical-music trust.

In other words, they had proposed and they had determined to give to the composer the same right of control over the reproduction of his music upon sound records and music rolls as the then Congress gave to the author of a novel in its reproduction thereof upon the screen--the exclusive control over his work with respect to its reproduction in the form of a motion picture.

Mr. REID of Illinois. Now read the next to or three lines. That will explain why they did not do it.

Mr. BURKAN. I am coming to it; I am not going to omit a letter word, or syllable of it. The report then states:

It became evident that there would be serious danger that if the grant of right was made too broad the progress of science and the useful arts would not be promoted but rather hindred, and that powerful and dangerous monopolies might be foisted which would be prejudicial to the public interests. This danger lies in the possibility that some one company might secure by purchase or otherwise a large number of copyrights of the most popular music, and by controlling these copyrights monopolize the business of manufacturing and selling the music-producing machines otherwise free to the world, patents for which might be owned by others.

Mr. REID of Illinois. Now, what is your answer to that?

Mr. BURKAN. Why, there is no more justification for that claim than there is for the claim that under the present coypright law a motion-picture manufacturer might go out and tie up every single author and fiction writer, every single publisher of novels, stories, and plays and that thereby he could secure a monopoly in the reproduction of those works and thus monopolize the business of manufacturing and selling motion pictures. There has been no such monopoly in the motion-picture field. Since 1909 American motionpicture manufacturers have produced the finest pictures in the world. There has been an absolutely free and open market for securing works of fiction for motion-picture reproduction.