still in his brain, or on a piece of paper. Carl Bohm came to me when I was in Berlin. One of his compositions is "Calm is the night." He tried here for many years. He got $15 for it. Then there was Schwarenka. The Polish dance brought $35. As far as the composers dealing with individuals direct, that is not getting by. The composer, as far as a business matter is concerned, has not much idea of how to go about it and gets discouraged peddling around, needs money, and drifts into the publisher..

The principal thing I want to say in a few words is this. The word composer and musician has been used many times. Do you realize we are only taking up one side of the composers here, and those are the composers of popular, or so-called popular music that may last 30 minutes or 30 days. The writer of song music is the man who spends. Take your society, Burkan; let us get out of the society and name a man out of the society. Victor Herbert, who is dead, was, perhaps, the most prominent member of your society, with all respect to the very great things of one or two others. Mr. BLOOм. There is John Philip Sousa.

Mr. SCHAAD. When you get on the musical subject, name a few musicians writing what we call serious music, cultural music that goes into the home for 25 or 100 years. Name a few members of that

kind.

Mr. BLOOM. Victor Herbert.

Mr. SCHAAD. Yes.

Mr. BLOOM. Kreisler.

Mr. SCHAAD. He has written a few good things.

Mr. BLOOM. Misha Elman.

Mr. SCHAAD. He is not known as a composer. When we speak of composers we speak of the man who will spend 15 years in acquiring a technique in which to create properly and setting it down on paper properly, and then spend three years to write one work.

Mr. BLOOM. What composer of that kind is there?

Mr. SCHAAD. John Powell, who spent 3 years in writing one composition and 15 years learning how to write.

Mr. BLOOм. Čadmon.

Mr. SCHAAD. He has been successful with his songs; the song 'Blue Water," and those things. I hope he is making some money although he told me he has not. There is Carrie Jacobs Bond. She has been more fortunate, but she has copyright protection.

Mr. BLOOM. No; she has published her own music for thirty-odd

years.

Mr. SCHAAD. Cadman was telling me how little he benefited from the large sale of particular things. The class of composers like Powell create for the joy of creation. The man who has anything to create is not prompted by the amount of money he will get. That comes from here and here, head and heart. He puts that down in a spirit of joy, and when he gets it down and it is done, whether he gets anything for it is not the thing that moves him to do it. What we are dealing with to-night is commercial composition on a basis of commerce, turning it out in large lots and pushing it before the American public. The American public to-day are becoming accustomed to hear that, not the cultural songs like Homeric lyrics, but the folksongs, such as Suwanee River. The whole tendency is to commercialize it. What

is that coming to for the people who write music that is fine music but is not popular music.

Mr. BLOOM. As to that man who writes the wonderful masterpiece, don't you think that he wants to get all the money he possibly can out of it?

Mr. SCHAAD. No; it is the joy to him.

Mr. BLOOM. He wants to give it to you?

Mr. SCHAAD. Not to us, because we have no particular use; we spend 90 per cent.

Mr. BLOOм. What does he want to do with it?

Mr. SCHAAD. He comes to New York at his own expense, and wants to hear the record, wants to hear that creation come to life in the hands of a master musician. That is the real creative impulse. He writes it for the joy of doing it.

Mr. BLOOM. What percentage of those things would you make rolls for?

Mr. SCHAAD. A large percentage to-day. If you have the time I will show you our catalogue.

Mr. BLOOM. Of these composers that do not want to get anything out of it?

Mr. SCHAAD. Not that they do not want to get it or that they will not receive your pay, but they are in a different class. There is a distinction. We are only too glad to pay them. Do you plug their work through the publishers, a work that you know is good but does not strike the public taste?

Mr. BLOOM. Do you not know that you can not plug a composition of that kind, a symphony orchestra or a big singer to play it? You can not plug a masterpiece the same as a popular piece.

Mr. SCHAAD. If you discriminate to that extent, do you discriminate between trash and what is fairly good ballad or melody, or something that is in good taste? If you put the same energy behind that, your turnover will not be so fast, but in the end you get more because you put it on a basis that will sell from year to year. I have been in business 27 years, before we had the player. I sold music rolls in those days and sell the same things now, for 27 years, because they were good, and for 27 years more, because the creation was something worth while.

Mr. BLOOM. Do you make rolls of Paderewski's compositions?
Mr. SCHAAD. Yes.

Mr. BLOOM. Do you pay him royalty?

Mr. SCHAAD. No.

Mr. BLOOM. Is there a copyright on his works?

Mr. SCHAAD. If there is a copyright we pay him royalty.

Mr. BLOOм. He would take it?

Mr. SCHAAD. They all take it and we are glad to pay it, but I say all the pressure on this is being put on the commercial composition, and the question is whether this is for art or whether it is for the man who gets nothing, because the real hard working musician will not get any more under this law than your law or any other law.

Mr. LANHAM. The initial urge is not money. He can not keep from it.

Mr. SCHAAD. That is it.

REBUTTAL STATEMENT BY M. LLEWELLYN RANEY

MR. CHAIRMAN AND GENTLEMEN OF THE COMMITTEE: Your hearing of interested counselors nears a close. The testimony has been varied and voluminous, running the entire gamut from indorsement complete to rejection in toto. So that despite your patient courtesy and close attention, which it is more than a perfunctory duty to acknowledge, it would be a marvel if the end did not find you a bit confused. But this should pass upon reflection, and the only justification of my reappearance is the hope that as a representative of the public I may hasten such clearance.

Difficult, however, as you may think your position, you are fortunate in comparison with your predecessors who offered what became the act of 1909, the present statute. The basis of your consideration is a full measure drawn by a detached expert working in solitude to summarize 25 years of experience in the highly successful administration of the Copyright Office, a man personally as widely beloved as he is officially trusted, who but for a luckless fire that destroyed the manuscript and apparatus of a life's magnum opus would have been the modern historian of copyright. You are engaged in the sixth general revision of this legislative subject since the original act of 1790. If those seven texts were set in parallel columns, no competent judge could fail to remark that the measure now on your table is in a class to itself. In clarity, straightforwardness, comprehensiveness, and most important of all-in singleness of purpose, the Solberg bill has not been approached. A rare piece of draughtsmanship, not perfect, I think, but far and away most nearly so.

On the other hand, Mr. Currier and his associates 18 years ago were looking at a pact drawn by middlemen. There was a big campaign on at the time. The publishers and booksellers had combined in 1901 to introduce the net price system and were in court then to enforce their claim, under the term "vend" in the copyright law, to control resale by notice without privity of contract, and, under the term "exclusive" in the Constitution, to escape the Sherman act. The three conferences (at which the public was stated to be unrepresented) for framing the initial bill of 1908, were held in June and November, 1905, and March, 1906. The first court verdict adverse to the publishers was rendered July 11, 1905, in the United States Circuit Court, Southern District of New York, and affirmed June 16, 1906, in the United States Circuit Court of Appeals for the Second Circuit. The copyright bill introduced in Congress in the following December was in part an attempt to save by legislation what was being lost in court. Among other clauses it contained the following:

*

"That the copyright secured by this act shall include the sole and exclusive right: * *(b) To sell, distribute, exhibit, or let for hire, or offer or keep for sale, distribution, exhibition, or hire, any copy of such work."

The first two of three unanimous adverse Supreme Court verdicts were rendered June 1, 1908, and with the rendition of the third on December 1, 1913, the American Publishers Association was dissolved and $140,000 damages assessed. It was on January 20, 1909, that the last desperate drive was launched to nullify the Bobbs-Merrill decision by writing in the bill the following clause:

"That subject to the limitations and conditions of this act copyright secured hereunder shall be entitled to all the rights and remedies which would be accorded to any other species of property at common law."

Their attempts all failed, including that to extend the common law beyond unplublished works, where it had been made to stop by the Statute of Anne, in 1709, if indeed it ever existed, as is most doubtful, and whatever excellence the present law has is due to the defeat of its progenitors by the indefatigable efforts of Chairman Currier, the facts assembled by the register, and the brilliant service of a New York attorney, Mr. William Allen Jenner, whose committee arguments and two pamphlets, "The publisher against the people, a plea for the defense,' and "The Octopus," so stirred and delighted Congress for two critical years.

If, therefore, Mr. Chairman, you are ever tempted to commiserate yourselves on your plight in our flood of words, remember your predecessors in the last revision, and reflect that we have here a boat which has weathered a quarter of a century and its skipper knows but two ports and a straight line between themthe author and his public. Stay aboard.

Now, where lies the unique competence of this measure? Mainly, as already indicated, in its singleness of purpose. It has but one theme and that is the assertion, over and over again, of the author's right under Constitutional grant to have his work at his sole disposal. Every other topic is excluded as irrelevant to a copyright statute, no matter how worthy and necessary otherwise of consideration. If you would use the author's work, you must come to terms with

him, and if you proceed without his consent you will be brought to book. The number of profitable uses that may be made of his "writings" multiplies with the progress of invention, but his is still the "exclusive right" of possession and disposal for the "limited time" of the law. No matter what the mode of multiplication-whether by printing, by performance, by radio, the screen, or what not-no proper copyright statute will allow its employment by one whom the author refuses to engage. He must have no competition in the reproduction of his work. The first, last, and only obligation of the copyright law to an author is to give him absolute charge of the gate to the plant of his work. Patrol that wall against intrusion. Arrest, eject, and punish any that does break in ("infringe"). Protection against robbery is the whole duty of the legislator, so far as a writer is concerned. That can not be said too often or too variously, for it is a rare statute that is fully consistent with that simple conception. Remember it is only a negative, not a positive assertion. The Government's "No" is added upon the author's denial to a given reproducer.

The bill under consideration shows conspicuous fidelity to this principle. The existing law, however, violates it in two notable instances here cancelled. First, a writer in English is refused a property right in his production unless manufactured in the United States. That is a most wrong-headed way of attaining a very proper objective. It is as indefensible as to decree that a man's watch may be lawfully stolen if it was made in Switzerland. My title to a house would not be invalidated if I gave the contract for its erection to the abductor of my child instead of the savior of its life. I should deserve ostracism, but the house could not be taken. So the American author ought to print here, and, fortunately, there is a practical legal way of making him, but not by saying to him that unless he engages a certain workman, the gates to his plant will be thrown open to thieves. The proper method if the facts warrant, is to increase the duty on American books made abroad. A discriminating duty of 25 per cent against imported American books as against the usual 15 per cent on English books was introduced into the present tariff act at my suggestion, and that is the patent line of relief, if it can be justified to the tariff commission. It need hardly be added that such an invasion of a foreigner's ownership, especially when that foreigner is as worthy a personage as a creator of literature, music, or art, is particularly mortifying, and will bar us decisively from entrance into the International Copyright Union.

The other outstanding case of the present law's invasion of the author's right to barter on his own property is the fixing of royalty on mechanical reproductions. Here the author is compelled not only to admit undesired workmen into his plant, but to accept for his product a price established by law-an odd experience in America, and one made none the less unseemly through its subsequent adoption by certain countries abroad. And the evidence amassed by counsel appears conclusively to prove that the injury has gone beyond the composer's dignity, and seriously affected his revenue, however advantageous a contract the rendering artist may have been making. The limitation is removed in our bill, though it is to be noted that section 7 properly allows copyright in a phonographic record, roll, etc., provided this is subject to all the rights of the owner of the copyright in the work at base.

Such must be our verdict each time, as between authors and their reproducers, if the "exclusive" of the Constitution is to exclude. In fact, the term "reproduction" and the like has no place in a copyright statute except as it afford opportunity to say this is the author's right. From this idea our bill never deviates a hair's breadth. Indeed, that is its very being. So, for further example, the contributor to a newspaper or periodical (sec. 6) is declared the owner of the copyright in such contribution, "and in the absence of agreement to the contrary shall be deemed only to have licensed the publisher to print and publish" it.

So much for the author's rights. None will deny that this bill is a drastic assertion of them.

But there is another party to copyright-the public, namely. How do the consumers fare? How ought they to fare? Well, the Constitution says that the purpose of copyright is to promote the progress of science and useful arts; that is to say, the fostering of public education. It was the people's advancement that the framers sought by this device. If it fail in that, it fails in all. This is the final test. The means chosen were to tempt authors and inventors to action, and the incentive was the giving them a property in their productions for a term of years. It took mankind many a weary century to grasp that thought. In Greece and Rome and during the Middle Ages, authorship was an aside or dependent on

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wealthy patronage. Anybody could copy. And the author did not improve matters when he gathered assurance enough to talk about his alleged natural right in his production. There are still a few people who talk that way. As a matter of fact, there is no such thing as a natural right. We have a natural instinct, as Matthew Arnold pointed out, to possess and have at our disposal what we acquire or make. Society finds it profitable to lend the sanction of law to the gratification of that instinct, so far as the public weal may allow. It may often be impracticable to comply, or at least to the full. We grant a man the chickens he has bred even if they wander off his premises, but if the bob whites of his hatching fly to a neighbor's woods the law does not attempt to bring them back. The game, shall I say, is not worth the candle. So a brilliant talker might like to corner his sayings, but society can not see a practical way to permit him, while with an author the attempt is made, though his production is hard to keep. He is an interesting and useful person, while he will not have the strength to produce if his energies must be spent in making a livelihood otherwise, since inspiration does not spout willy-nilly at regular intervals like a geyser. But it is to be ever remembered that such proprietary right as he exercises is not an inherent one; rather it is the grant of society, to be harmonized with other grants, so that a restriction on the privilege may be as important as his enjoyment of the residue. We agree to bar out undesired reproducers, but, inside the pale, alone with his public, he can not do with his work just what he pleases. He must not be obscene, for instance, nor plagiarize. He is not justified in bedeviling the consumer needlessly. I am inclined to say that no use the people wish to make of his published work should be inhibited unless thereby profit due him goes to another's pockets, but this does not mean free broadcasting and the like. Creation is after all its own most satisfying reward, and it might well be the only one if an author could but live on air. Let profit be the touchstone.

Now if this bill is subject to serious criticism at all, it will be found in its treatment of the public. In this thought turn to section 12. Here the following words in lines 20 and 21-"the exclusive right to produce, perform, or distribute their works by any means whatsoever"-I should be inclined to change to read "the exclusive right to reproduce or initially dispose of their works." And in harmony with this idea, paragraph (a) now reading "To copy, print, reprint, publish, produce, reproduce, or transmit the copyright work in any form; and to vend or otherwise dispose of such work and to authorize its public use in any manner or by any means whatsoever" might reappear as "To copy, print, reprint, publish, or reproduce the copyright work in any form, and initially to dispose of such work in any manner. Compare both of these readings with the simple and nearly sufficient provision of the existing law-“To print, reprint, publish, copy, and vend the copyrighted work." I am omitting "produce," for why legislate against a miracle? If two persons do independently create the same work, can you stop one of them? The exclusive right of reproduction will, of course, be given to the one first essaying it, but the law can not enter till then, except to protect the ownership of the manuscript. Again, the generic "reproduce" is substituted for the specific "perform," and "dispose of" for "vend," as well as "distribute" for taken literally the latter would stop a public library's circulation, though naturally no one would expect any such application. For similar reason "transmit" is dropped. So also "to authorize its public use in any manner or by any means whatsoever," as too sweeping a power. A free public reading from contemporary poets, for example, would thus be unlawful in the lecture room of a neighborhood library, unless the reader secured in advance the written consent of all the copyright owners on both sides of the Atlantic. And yet that would but advertise the author and bring emolument to no other. Note finally the word "initially" bracketed with "dispose of," for this would block the improper claim to control of resale.

Next in paragraph (i) of this same section, I regret the withdrawal of the words "for profit," found in the present law. The principle has already been enunciated. Let us turn now to section 41. This contains the traditional prohibition against the importation of piratical reprints, but it goes further than the existing statute (Sec. 31 (d) third), in that it cancels the privilege of educational institutions, public libraries, and the like to import for use and not for sale a single copy of an authorized foreign reprint of a book by an American author copyrighted in the United States, whenever an agreement to exclude shall have been made and recorded. This change brings embarrassment to conscientious library officials. The case against it has been well stated in a letter just sent the chairman of this committee by Mr. Hiller C. Wellman, librarian of the city library, Springfield, Mass., and a former President of the American Library Association. The letter follows: