Committee Prints

The U.S. Copyright Act of 19091 recognized for the first time recording and mechanical reproduction rights as part of the bundle of exclusive rights secured by statutory copyright in certain classes of works, limiting such mechanical reproduction rights in musical compositions by compulsory license provisions.

Shortly before the passage of the 1909 act, the U.S. Supreme Court, in construing the then-existing copyright statute," in the oft-cited case of White-Smith Music Publishing Co. v. Apollo Co., had held that the making and sale of a pianola roll of a copyrighted musical composition did not constitute copying (or publication or, inferentially. vending), and hence was no infringement, of the copyright in such

1 Act of March 4, 1909 (35 Stat. 1075), effective July 1, 1909, 17 United States Code 1 et seq. (1952).

Quaere, whether "recording rights" and "mechanical reproduction rights" are synonymous. If the former are broader than the latter, the compulsory license provision might apply only to the latter. The terminology of the Copyright Act is far from consistent. See pp. 13-14, 54, infra.

Recording has been held violative of common-law rights. George v. Victor Talking Machine Co., 38 U.S.P.Q. 222 (D.N.J. 1938), rev'd on other grounds, 105 F. 2d 697 (3d Cir. 1939), cert. denied, 308 U.S. 611, Sup. Ct. 176, 84 L. Ed. 511 (1939). This has long been the assumption of the music publishing and recording industry. See pp. 46-48, Common-law rights are perpetual until publication (see note 71 infra), and are not subject to the compulsory license provision of the U.S. Copyright Act.

infra.

Dramatic works (sec. 1(d)) and musical compositions (sec. 1(e)): Prior to the act of July 17, 1952 (66 Stat. 752), effective January 1, 1953, 17 U.S.C. 1(c) (Supp. 1955) no recording rights attached to nondramatic literary works. Corcoran v. Montgomery Ward & Co., 121 F. 2d 576 (9th Cir. 1941), cert. denied, 314 U.S. 687, 62 Sup. Ct. 300, 86 L. Ed. 550 (1941) (setting to music and recording poem held not to infringe statutory_copyright in poem). See H. Rept. No. 1160, 82d Cong., 2d sess. (1952); Cane, "Belated Justice for Authors," 36 Stat. Rev. 21 (Aug. 22, 1952); Schulman, "Recording Base Widens," 1 American Writer 13-15 (October 1952). Only mechanical reproduction rights in musical compositions are subject to compulsory licensing. (See p. 56, infra.) 5 Act of Mar. 3, 1891 (26 Stat. 1106), Rev. Stat., sec. 4952 (based on act of July 8, 1870 (16 Stat. 212)), sec. 86, which provided that the author of a copyrighted musical composition should have "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same." In 1870, although the mechanical piano (with interchangeable boards or perforated cards) had been previously invented, recording was mainly limited to the single-selection music box, barrel organ, bird organ, chiming clock, or snuff box. Sheet music was the medium through which new songs were enjoyed in the home. By 1900, pianolas, pianophones, aristons, aeolians, aerophones, polyphones, clarophones, phonographs, gramaphones, and graphophones were in widespread use, and a substantial industry had been built up around them and the interchangeable parts they played.

• 209 U.S. 1, 28 Sup. Ct. 319, 52 L. Ed. 655 (1908) (Holmes, J., concurring). Lower courts had previously ruled to the same effect. Stern v. Rosey, 17 App. D.C. 562 (1901); Kennedy v. McTammany, 33 Fed. 584 (C.C.D. Mass. 1888), appeal dismissed, 145 U.S. 643, 12 Sup. Ct. 983, 36 L. Ed. 853 (1892). Accord: M. Witmark & Sons v. Standard Music Roll Co., 213 Fed. 532 (D.N.J. 1914), aff'd, 221 Fed. 376 (3d Cir. 1915) (pre-1909

work).

And, by analogy, disks, bands, and cylinders, which, along with pianola rolls, comprised the interchangeable parts then used in mechanical music-producing machines. (See note 5 supra.) For the problems posed by motion picture sound tracks, long-playing records, wire and tape recordings, electronic devices, etc., see p. 54, infra.

musical composition. The result of this case, but not the underlying rationale, was changed by two provisions of the 1909 act: Section 1(e) which, among other things,10

(1) Recognized recording and mechanical reproduction rights in musical compositions, except those by foreign authors unless their nations granted similar rights to U.S. citizens," published and copyrighted 12 after July 1, 1909, the effective date of the act; and

(2) Subjected such mechanical reproduction rights to compulsory licensing,13 and

Section 25 (e) 1 specifying further remedies for infringement of mechanical reproduction rights.15

I. ANALYSIS OF PERTINENT PROVISIONS OF PRESENT COPYRIGHT LAW

A. LEGISLATIVE HISTORY OF PRESENT COMPULSORY LICENSE PROVISIONS

As early as 1905,16 work was commenced on a series of bills looking toward the codification of the Federal copyright laws.17 The Librarian of Congress held three conferences with authors, publishers, and

8 The Court applied a visual test of copying by endorsing the definition of a copy of a musical composition, within the meaning of the Copyright Act, as "a written or printed record of it in intelligible notation" (209 U.S. at p. 17, 28 Sup. Ct. at p. 323, 52 L. Ed. at 662). A copy had to appeal to the eye, not the ear. Cf. 2 Bl. Comm. 405–406. The Court concluded, after suggesting possible legislative relief, that the copyright statute as it then stood did not include records such as pianola rolls as copies or publications of the copyrighted music. Holmes, J., concurred on the basis of the facts and opinions in the United States and abroad, saying:

"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.'

209 U.S. at p. 20, 28 Sup. Ct. at p. 324, 52 L. Ed. at p. 663. See Universal Copyright Convention, art. VI, discussed in note 71 infra.

See p. 12, infra.

10 Sec. 1(e), besides recognizing recording and mechanical reproduction rights in musical compositions, provides for the right of public performance for profit of musical composi tions and the right to make any arrangement thereof or the melody thereof in any system of notation. Public performance rights in musical compositions had been expressly recognized in the act of January 6, 1897 (29 Stat. 481), the limitation "for profit" being added by the 1909 act. Rights to arrange or adapt musical works are expressly conferred in sec. 1(b). Besides sec. 1(e) rights of public performance for profit, arrangement, and recording and mechanical reproduction, musical compositions are presently protected against printing, reprinting, publishing, copying, and vending (sec. 1(a)), and dramatizing, arranging, or adapting (sec. 1(b)).

11 See note 55 infra.

12 See note 57 infra.

13 The compulsory license provision of sec. 1(e) was the first of two instances (for second, see note 66 infra) of a compulsory license in Federal copyright and patent_enactments, but is not entirely without precedent. Congress, under the Articles of Confederation, having no power over copyright, recommended in 1783 that the several States enact copyright legislation. Of the 12 original States (Delaware being the exception) which did so between 1783 and 1786, four statutes (Connecticut, Georgia, New York, South Carolina) contained compulsory license with security provisions applicable when copies of a copyrighted book were not supplied in reasonable quantity and at reasonable price. "Copyright Enactments of the United States, 1783-1906," pp. 11-31 (2d ed. 1906); Fenning, "Copyright Before the Constitution,' 17 J. Pat. Off. Society 379. 380, 383 (1935). Compulsory patent licensing is one of the most controversial subjects in the patent field. The Temporary National Economic Committee favored an amendment to the patent laws which would require licensing of patents at reasonable royalties. sequently as an adjunct of enforcement of the antitrust laws in the patent field, a number of antitrust civil decrees required defendants to license patents either at a reasonable royalty or royalty free. A congressional subcommittee reviewing the American patent system has undertaken a study of all antitrust decrees requiring compulsory licensing of patents to determine their effectiveness in promoting competition and the practical problems involved in the administration of compulsory licensing. S. Rept. No. 1464, 84th Cong., 2d sess., p. 11 (Jan. 16, 1956). Several foreign countries adopted compulsory license provisions patterned on sec. 1(e) of the U.S. Copyright Act. 1 Ladas, "The International Protection of Literary and Artistic Property," pp. 429-432 (1938). See pp. 3641, infra.

14 17 U.S.C. sec. 101 (e) (1952); see p. 13, infra.

15 See pp. 13-21, infra.

16 For a summary of developments, see 37 Music Trades 5-6 (Mar. 13, 1909). 17 H. Rept. No. 3380, 58th Cong., 3d sess. (1905).

Sub

other interested groups in 1905-6 in New York City and Washington, D.C. At the last conference a draft bill, containing the following provision, was discussed: 18

That the copyright by this Act shall cover and protect the words and music of any song, opera, operetta, oratorio, mass, choral work and cantata, as well as each separate number or part thereof issued in separate form, together with all subsequent translation, arrangement or setting of the original work in any mode of notation, system of signs, figures or devices, or any form of reproduction whatsoever; and the music and words of a mixed composition may be jointly protected under one copyright or may be separately copyrighted.

A series of bills were introduced in Congress, during the 3 years from 1906 to 1909, to recognize recording and mechanical reproduction rights in musical compositions.

1. The 59th Congress

(a) S. 6330 and H.R. 19853

On May 31, 1906, identical bills were introduced by Senator Kittredge (S. 6330) and Representative Currier (H.R. 19853) providing that the copyright should include the sole and exclusive rights 19

(g) to make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this Act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.

The bills were referred to the Committees on Patents of both Houses which held joint hearings on June 6-9, 1906.

John J. O'Connell, as representative of several New York playerpiano manufacturers, claimed at the hearings that the above-quoted paragraph (g) would give a monopoly of the music-roll business to one company.20 He indicated, in response to questions, that the piano manufacturers were not opposed to giving the composer some return provided this was done in such a way that every manufacturer would have the right to use the music upon paying for it. John Philip Sousa and Victor Herbert complained that manufacturers of music rolls and talking-machine records were reproducing part of their brain and genius without paying a cent for such use of their compositions.21

No further action was taken at that session. New hearings were commenced at the next session in December 1906. Thereafter, the Senate Committee on Patents, by a divided vote (three members dissenting), reported the original bill, while the House committee, one

1 Sec. 42, Conference, Mar. 13-16, 1906.

S. 6330, H.R. 19853, 59th Cong., 1st sess. (1906).

The Aeolian Co. had received from numerous music publishers exclusive long-term license agreements to manufacture perforated music rolls in consideration for its carrying the White-Smith Music Publishing Co. case (see note 6, supra) to the U.S. Supreme Court in hope of a decision recognizing mechanical reproduction rights. There was considerable disagreement at the congressional hearings whether such license agreements would survive an adverse Supreme Court holding and apply if mechanical reproduction rights were recognized by legislation. Hearings on S. 6330 and H.R. 19853, 59th Cong.. 1st sess., pp. 23-26, 94-97, 139-148, 166, 185-198, 202-206 (June 6-9, 1906). See note 44, infra.

Id., at p. 84.

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