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facie evidence of the facts stated therein as regards copyright registration.

Section 50 substantially reenacts the act of March 3, 1891, although the provision regarding the sale of the consolidated catalogues and indexes and the turning in of the money thus received to the Treasury of the United States is new.

Section 51 is new, but deemed by your committee to be a proper provision.

Sections 52 and 53 are inserted for the following reason: The Librarian of Congress states that the volume of the copyright deposits is now enormous and 200,000 articles a year are now being added to the great accumulation. Many of these articles are valuable to the Library and are used by it. The rest remain in the cellar, and the accumulations there number a million and a half of articles. There are many articles there that would be useful in other Government libraries. Some might be used in exchange for other articles. The remainder are a heavy charge upon the Government for storage and care, without any corresponding benefit.

The impression that the deposited articles are a part of the record and are necessary evidence of the thing copyrighted is not well founded. In the last thirty-six years there have been only four cases in which articles deposited have been taken into court, and it is said that in none of these cases was there any necessity for such use of the deposited article. It is believed by your committee that the sug. gestions of the Librarian of Congress embodied in these two sections are wise ones and that the rights of all parties interested are carefully safeguarded.

Section 54 provides for fees. Under existing law the fee for recording title, etc., is 50 cents and the fee for the certificate, if called for, is also 50 cents. Section 54 provides for the issuing of a certificate as a matter of course and makes the fee just what it would be under existing law if the certificate was called for.

It was felt by your committee that this fee of $1 would be a burden to photographic establishments, which applied for many thousand copyrights, and so we provided that in the case of photographs the entire fee should be 50 cents unless a certificate was requested. Under existing law the fee for recording and certifying any instrument was $1. The provision in the present bill makes that fee depend upon the length of the instrument. Certain other fees, for search, etc., are new. The proviso regarding one registration fee in case of several volumes of a numbered series of any work is new, but is believed to be in the interest of the public.

Section 55 is new.

(REPT. 7083




MARCH 2, 1907.—Committed to the Committee of the Whole House on the state

of the Union and ordered to be printed.

Mr. BARCHFELD, from the Committee on Patents, submitted the

following as the


[To accompany H. R. 25133.]

We disagree with a portion of the majority report submitted by the Committee on Patents on House bill 25133, reported on January 30, 1907.

The bill is a redraft of House bill 19853, which was introduced in this House on May 31, 1906. In its original form the bill had a provision (subdivision g, section 1) securing to musical composers the exclusive right to reproduce their compositions by mechanical means, such as perforated rolls and disk or cylinder records.

The greater part of the time given by the committee to public hearings on this bill was taken up by the consideration of this provision.

In these hearings the fact was brought out very strongly that the manufacture of devices for the mechanical reproduction of music has assumed gigantic proportions and is still growing in bulk of output, as well as in the range of practical application.

Though its beginnings date back but a few years, this industry is now producing and marketing every year many millions of perforated music rolls for player pianos and of records for talking machines. While there has been much conflicting argument as to whether these appliances are proper subjects of copyright, it is not questioned that each of them represents a musical composition and will, when operated with a proper instrument, reproduce the music of that composition to the ear. The appliance does away with the personal performer and at the same time with the sheet of music which is required by the performer to guide him in striking the proper notes.

Two distinct stages are to be traced in the development of automatic musical instruments. The first stage was that of the music box and barrel organ. The fact that the manufacture of these instruments was mainly a Swiss industry is important, because it is responsible for the present condition of the law of musical copyright in most of the countries of Europe.

The characteristic feature of the music box and barrel organ is that the cylinder which serves to reproduce the music is a permanent, unchangeable part of the instrument, and that, therefore, the reproductive capacity of each instrument is once for all limited to the very small number of melodies set on the cylinder. As each instrument will serve only to play the same tunes over and over again, the manufacturers confine their repertory to a few airs of established universal popularity. Instruments of that description are not adapted to replace sheet music as a means of communicating musical ideas.

But a very different situation has been created by the invention and extensive use of instruments operated with independent, exchangeable record appliances. Any musical composition, the reproduction of which is desired, may be transferred to a perforated roll, disc, cylinder, or other record appliance or to a matrix, mold, or die from which a large number of the records may be produced. So that as complete a repertory of records may be supplied for such an instrument as of sheet music for the piano; and these records are capable of being mechanically duplicated to the same extent as sheet music. These modern instruments and appliances have proved highly perfectible. They have already been so improved as to be capable of producing the musical composition as artistically as the piano. And pianos with a player attachment are now being made which can be operated either by hand or by means of music rolls.

It is not difficult to foresee the effect that the development of this industry must have on the use of sheet music. It is already supplying part of the demand that otherwise would have sought satisfaction by means of sheet music. Its increased importance in the future is assured by the fact that it is doing away with the laborious studying and tiresome practicing that are necessary to master the instruments played by hand from written or printed scores.

The final tendency will be to make the mechanical form of reproducing music the rule and the use of sheet music the exception.

It can not be doubted that these new conditions call for an appropriate change of the law if its object is to be secured, namely, the encouragement of authors by securing to them the exclusive right to the use of their works. The inadequacy of the present laws to deal with conditions created under new reproductive processes was, indeed, one of the main considerations that caused the agitation for a revision of the copyright laws of which the present bill is the outcome.

The conferences referred to in the majority report were largely the results of the widespread conviction that the present copyright laws do not give sufficient protection to authors in view of the changed conditions brought about by new methods and new inventions. In that part of the President's message to Congress in December, 1905, wherein a revision of the copyright laws was urged, the President

expressed the same opinion in saying that the copyright laws “omit provision for many articles which under modern reproductive processes are entitled to protection.”

The extensive use of automatic musical instruments is by far the most important change in the conditions affecting the workings of the copyright law

If we should fail to make provision in this bill meeting the change described, we would leave undone the most needful part of the work involved in a revision of the copyright laws under present circumstances.

The condition that now exists with regard to automatic reproduction of music is discouraging to composers. In a petition which was addressed to the Congress by a large number of composers, the latter expressed themselves as follows:

A law that will admit of the indiscriminate appropriating of the property of another for profit is eminently defective.

Under the present conditions the composer is obliged to submit, and without recourse, to the injustice of having his compositions—the product of his brain, genius, and talent, and that should be made his property rights-appropriated at will and manufactured into phonograph records, perforated rolls, and other devices and vended for the unjust enrichment of the manufacturers and at enormous profits, the composer receiving nothing.

In matters of musical copyright the first consideration is due to the composers. Unless they are encouraged in their efforts, the art of music can not be promoted.

The present condition of the law can not encourage the composers. A new practice of exploiting their works has grown up and bids fair to soon outstrip the old style of sheet music; but while their rights in sheet music are recognized, they must see millions of automatic records sold without their leave being asked and without their right to a share of the profits being admitted.

It must be admitted, nor is it denied in the majority report, that the composers are entitled to be relieved from their present unprotected position with regard to mechanical reproduction. But it is recommended to postpone any change in the law until the determination of a case now pending in the United States Supreme Court and involving the right of mechanical reproduction of copyright music.

We do not approve of that course.

The case referred to (White-Smith Co. v. Apollo Co.) involves the question whether the copyright in a musical composition is infringed by the making of perforated sheets by means of which that composition may be reproduced on a player piano. The issue hinges on the construction of that part of section 4965 of the Revised Statutes which declares the unauthorized copying of a musical composition an infringement. The construction of the public performance provision, section 4966, is not involved.

The decision of the court can have no binding force beyond the precise issue presented. If the court should decide in favor of the plaintiffs, the judgment would affect those perforated sheets only that were before the court and would bind the parties to that action only. It would not preclude any manufacturer from claiming that the particular rolls or records that he makes are different from those involved in the Apollo case and are not copies, nor would it stand at all in the way of such claim being sustained in another action. In this connection reference may be made to the fact brought out at the hearings, that in Germany and France certain forms of record appliances are deemed infringements, while others are not.

Why should Congress instead of granting relief to the composers now, leave them to the uncertainties of a litigation? If it is proper to extend copyright protection to these mechanical forms of reproducing music, an express provision should be inserted in the law. That was the course adopted when the improvement of photography made a change in the law necessary. Photographs and the negatives thereof were expressly added to the list of subjects of copyright.

Mention is made in the majority report of the O'Connor Act, passed in England last year. That law contains very severe criminal provisions, authorizing summary punishment of persons guilty of printing, selling, or keeping in their possession pirated copies of musical works; also authorizing the arrest without warrant of street vendors of pirated copies and of canvassers for the sale of the same; and further authorizing the searching of premises and the seizure and destruction of pirated copies and plates for the same.

It is then specially provided that the severe provisions of this act, and of this act only, shall not apply to perforated music rolls and records for the reproduction of sound waves.

All other remedies for the protection of musical copyright and all the prior laws defining it are left in full force and effect. One of the unrepealed laws, the act of 1902, contains a section defining musical copyright under the copyright laws then in force to include the exclusive right to make any new adaptation, arrangement, or setting” of the copyrighted work“ in any notation or system,” and defining pirated musical work to mean any such “work written, printed, or otherwise reproduced” without the consent of the copyright preprietor. This is still the law in England for all purposes, excepting the summary punishment and seizure under the act of 1906.

The condition of the musical copyright law in the countries of Europe has been urged as a reason why the protection asked for by the composers should not be granted by Congress. Most of these countries were influenced in their position on this question by their relations with Switzerland and by the Berne International Copyright Convention. In France an act was passed in 1866 as a condition of securing a commercial treaty with Switzerland, by which the manufacture and sale of instruments for the mechanical reproduction of musical airs are declared not to constitute an infringement of copyright.

Switzerland obtained the adoption of a similar provision in almost identical words as paragraph 3 of the final protocol of the Berne convention. These concessions were sought by Switzerland and were granted solely with a view to protecting one of the important Swiss industries, the manufacture of music boxes, musical clocks, and barrel organs. In Europe the existence of this clause in the Berne convention has stood in the way of the extension of the musical copyright so as to include the modern mechanical means of reproduction. Nevertheless, it has been recognized in some of these countries that such protection should not be entirely denied to the composers because of a provision which was clearly not intended to have that effect. In France it has been held that the Swiss proviso

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