member dissenting, reported against extending copyright to include recording and mechanical reproduction rights.22

(b) S. 1890 and H. R. 25133

Senator Kittredge persisted at this session, introducing on January 29, 1907, a bill (S. 1890) defining the exclusive rights secured by the copyright of a musical composition as including the right 23— to make any rearrangement or resetting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.

2. The 60th Congress

(a) H.R. 243, S. 2499, S. 2900, and H.R. 11794

At the next Congress, bills were introduced in December 1907, providing that perforated rolls, records, and matrices for the same, did not constitute arrangements or adaptations of a musical work.24 Shortly thereafter, two bills were introduced providing that the exclusive rights in a musical composition included the right 25____

to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.

At this time, the White-Smith Music Publishing Co. case 26 was before the U.S. Supreme Court. The congressional committees decided to postpone action pending the decision of the Supreme Court. The case was argued on January 16 and 17, 1908, and decided on February 24, 1908.

Joint committee hearings were resumed on March 26, 27, and 28, 1908.27

(b) H.R.20388

Antitrust considerations previously raised now began to appear in the drafted bills. On April 6, 1908, Representative Campbell introduced a bill which provided, among other things, that any copyright issued by the United States for a musical composition or a device for reproducing music or musical compositions owned by an individual or firm would cease and terminate upon such individual or firm violating any law of Congress or any State which prohibited, restrained, or regulated trusts and monopolies.28

Congressional committee sentiment was largely divided between those who favored recognition of recording and mechanical reproduction rights absolutely and those who wanted such recognition limited by compulsory license provisions. A very small minority opposed recognition of such rights either on constitutional grounds,

23 Hearings on S. 6330 and H.R. 19853, 59th Cong., 2d sess., pp. 156-161, 200-236, 247, 261, 268-298, 342-370 (Dec. 7, 8, 10, 11, 1906); S. Rept. No. 6187, 59th Cong., 2d sess., pp. 2-4, pt. 2 (1907); H. Rept. No. 7083, 59th Cong., 2d sess., pp. 9-11, pt. 2 (1907). The main objection was that any legislation involving mechanical reproduction rights be postponed pending the decision of the Supreme Court in the White-Smith Music Publishing Co. case.

23 S. 1890, 59th Cong., 2d sess. (1907). A bill introduced by Representative Currier in the House on the same day (H.R. 25133) omitted this provision.

24 H.R. 243, 60th Cong., 1st sess. (1907): S. 2499, 60th Cong., 1st sess. (1907).

25 S. 2900, 60th Cong., 1st sess. (1907); H.R. 11794, 60th Cong., 1st sess. (1908). 26 See note 6 supra.

Hearings on H.R. 243, S. 2499, S. 2900, and H.R. 11794, 60th Cong., 1st sess., pp. 188-248, 255, 264-281, 293-356 (Mar. 26-28, 1908).

28 H.R. 20388, 60th Cong., 1st sess. (1908). See note 44 infra.

largely dissipated by the Supreme Court opinions in the White-Smith Music Publishing Co. case, or in the feeling that there should be no further burden on the music-loving people of the country.

The issue, in effect, then, was between absolute and qualified recognition of recording and mechanical reproduction rights. Some question was raised as to the constitutionality of a compulsory license provision with an arbitrary royalty rate. Both Mr. O'Connell, counsel for the National Piano Manufacturers' Association, and Arthur Steuart, chairman of the Copyright Committee of the American Bar Association, expressed opinions that Congress in creating new rights had the power to annex conditions thereto since no abridgement of existing rights would be involved.

After the close of the hearings in March 1908, Senator Smoot, chairman of the Senate Committee on Patents, had suggested that the various interested groups attempt to agree on a bill. Accordingly, representatives of the song writers, talking-machine people, and piano manufacturers expressed agreement in favor of the universal royalty idea, and, except for the talking-machine people who thought the 2-cent rate was too high for cheap records, the 2-cent flat rate as proper and reasonable.29

(c) H.R. 21592

A compulsory licensing provision appears for the first time in a bill introduced on May 4, 1908. To a subsection conferring, among the several rights, the exclusive right to make any arrangement or setting of a musical composition or its melody in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced, was appended the following proviso:

30

Provided, That the provisions of this Act so far as they secure copyright covering the parts of instruments serving to reproduce mechanically the musical work shall include any compositions published and copyrighted after the passage of this Act: And provided further, That whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty equal to the royalty agreed to be paid by the licensee paying the lowest rate of royalty for instruments of the same class, and if no license has been granted then per centum of the gross sum received by such person for the manufacture, use, or sale of such parts, and in all cases the highest price in a series of transactions shall be adopted. A later section of the same bill provided in part:

Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical musicproducing machines adapted to reproduce the copyright music, no criminal action shall be brought, and in a civil action no injunction shall be granted, but the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e) of this Act.

37 Music Trades 5 (Mar. 13, 1909).
H.R. 21592, 60th Cong., 1st sess. (1908).

46476-60

(d) H.R. 21984

On May 12, 1908, Representative Sulzer introduced a bill combining recognition of recording and mechanical reproduction rights in musical compositions 31 with a compulsory licensing provision, mentioning for the first time the two-cent royalty: 32

That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year, or by a fine not less than one hundred dollars and not exceeding one thousand dollars, or both, in the discretion of the court: Provided, however, That no person shall be deemed to infringe the copyright in any musical composition who shall make, vend, sell, or offer for sale any device or contrivance containing any arrangement or setting of the same or of the melody thereof, in which the thought of an author may be recorded and from which it may be read or reproduced, and who shall pay to the copyright proprietor of the same before vending, selling, or offering any such device or contrivance for sale, the sum of two cents in each case where the device or contrivance is a talking-machine record, and a sum equal to one-tenth part of the marked retail price of any other such device or appliance, and shall affix to such devices or appliances before vending, selling, or offering them or any of them for sale a royalty stamp issued to him by the proprietor of the copyright denoting the payment of said sum: And provided further, That the proprietor of the copyright shall cause to be prepared, for the payment of the royalty thereof, and shall keep on hand at all times a sufficient supply of stamps, and shall sell the same to any person desiring to purchase the same, in default of which no action shall be maintained nor recovery be had for any infringement by any such device or contrivance. Every manufacturer of any such device or contrivance shall securely affix, by pasting on each such device or contrivance manufactured by him, a label on which shall be printed the name of the manufacturer, his place of residence, the title of the composition which it is adapted to reproduce, the name of the author of such composition, and the retail price of the same, in default of which he shall be liable under the provisions of this Act as an infringer of the copyright: And provided further, That the person using or affixing the stamp as herein provided for shall cancel the same by writing thereon the initials of his name and the date on which such stamp is attached or used, so that it may not again be used. Any person who shall vend, sell, or offer for sale such contrivance or appliance with properly affixing thereon and canceling the stamp denoting the royalty on the same, or affixes a false, fraudulent, or counterfeit stamp, or any dealer who buys, receives, or has in his possession any such device or contrivance on which the royalty has not been paid, or any person who removes or causes to be removed from any such device or contrivance any stamp denoting the royalty on the same, with intent to again use such stamp, or who knowingly uses or permits any other person to use the stamp so removed, or who knowingly receives, buys, sells, gives away, or has in his possession any stamp so removed, or has in his possession any stamp so removed, or who makes any other fraudulent use of any such stamp shall be deemed guilty of a misdemeanor, and shall be fined not less than two hundred and fifty dollars nor more than one thousand dollars and imprisoned for not less than three months nor more than one year.

Nothing in this section declared to be illegal by any court of competent jurisdiction shall in anywise affect or impair any other section or subsection or part thereof in this Act contained, but the same shall remain in full force and effect in the same manner to the same extent as if this section were not embodied in this Act.

(e) H.R. 22071

On May 12 (calendar day May 21), 1908, Representative Sulzer introduced another bill which retained the recording and mechanical reproduction rights and royalty stamp provisions of his earlier bill

H.R. 21984, 60th Cong., 1st sess. (1908). Similar to provisions in bills cited in note 25 supra. 32 H.R. 21592, 60th Cong., 1st sess. (1908).

but limited the compulsory license provision to situations where the proprietor had made or authorized à recording and made the royalty of one-tenth of the marked retail price applicable to all mechanical reproductions, thus supplanting the 2-cent provision for phonograph records.33

(f) H.R. 22183

On May 12, 1908, Representative Currier introduced a bill which provided a 2-cent royalty except in the case of disks not exceeding 8 inches in diameter or cylinders not exceeding 4 inches in length, in which case the royalty was to be 1 cent. The provisos read as follows: 34

* Provided, That the provisions of this Act, so far as they relate to instruments or machines or parts of instruments or machines which reproduce or serve to reproduce to the ear the musical work, shall include only compositions published and copyrighted after this Act takes effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: Provided further, That any person may make use of the copyrighted work in the manufacture of records or controllers for mechanical music-producing machines, however operated, and may sell or use such records for profit upon payment of a royalty to the copyrighted proprietor by the manufacturer of such record or controller, as hereinafter provided: And provided further, That in no event shall the payment of more than one royalty be required on any such record or controller.

In case of the use of such copyrighted composition on such interchangeable records or controllers of such mechanical musical-producing instruments no criminal action shall be brought, and in a civil action no injunction shall be granted, but the plaintiff shall be entitled to recover in lieu of profits and damages a royalty of two cents on each such record or controller, except in the case of disks for talking machines not exceeding eight inches in diameter or cylinders not exceeding four inches in length, in which case the royalty shall be one cent; but in the case of the refusal of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at the said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may enter judgment therein for any sum above the amount found by the verdict as the actual damages, according to the circumstances of the case, not exceeding three times the amount of such verdict.

Opposition developed on the part of some music publishers with the result that no bill was reported before the end of the session in June 1908.35

A special House committee was thereupon appointed to consider the various bills then pending, primarily: H.R. 22183, providing for a 2-cent flat royalty rate; H.R. 21592, permitting the composer to withhold his composition from mechanical reproduction, if he did not permit such use; if he did permit such use, anybody else could make similar use of the composition upon paying a percentage of royalty: and H.R. 21984, providing for a 2-cent royalty on talking-machine records and a 10-percent royalty on music rolls.36 The special committee met on the reconvening of Congress in December 1908 with a view to framing, on the basis of the various bills, one that would be not only valid but just and reasonable to all interests.37

(g) H.R.24782

Meanwhile, on December 19, 1908, Representative Barchfeld introduced a bill which contained, besides provisions similar to some of the other bills, some new features. The most important of these was that the proprietor of a copyrighted musical work, when he mechanically reproduced it or permitted someone else to do so, should file a written declaration of intention so to use said work with the Register of Copyrights, giving also the nature and extent of such contemplated use; and if such use were permitted to others a duplicate original of the contract under which said use was permitted must also be filed. The Register of Copyrights was required to issue a weekly bulletin or list of the declarations of intention and contracts respecting the use of copyrighted works upon instruments mechanically reproducing the work. The full section read as follows: 38

That whenever the proprietor of a copyrighted musical work shall use or permit the use of the same for profit upon any instrument serving to reproduce mechanically the musical work, he shall first file with the Register of Copyrights (a) if the use be only by the copyright proprietor, a written declaration of intention so to use said work and the nature and extent of such contemplated use; (b) if such use is permitted to others, a duplicate original of the contract under which said use is permitted, and thereupon any other person subject to the provisions hereof may make similar use of such copyrighted work and to the same extent upon paying to the copyright proprietor of the same before vending, selling, or offering any such instrument for sale, (c) if the said use is to be made by the copyright proprietor, a sum equal to ten per centum of the selling price of any such instrument, but in no event to be less than two cents; (d) or if the use is permitted to others the royalty provided in the contract permitting such use for instruments of the same class. Any person using a copyrighted work under the provision hereof shall affix to such instrument before vending, selling, or offering it for sale a royalty stamp issued to him by the proprietor of the copyright denoting the payment of said royalty, and shall cancel the stamp at the time of affixing the same by writing thereon the initials of his name and the date of cancellation so that it may not again be used.

The proprietor of the copyright shall cause to be prepared and keep on hand for sale proper stamps, bearing his imprint, for the payment of the said royalties, in such denomination as will coincide with the royalty hereinabove specified, in default of which no action shall be maintained nor recovery be had for any infringement by any such instrument.

Any person who shall vend, sell, or offer for sale any such instrument without properly affixing thereon and cancelling the stamp denoting the royalty on the same shall be liable as an infringer of the copyright. Any person who affixes a false or fraudulent stamp or who removes or causes to be removed from any such instrument any stamp denoting the royalty on the same, with intent to again use such stamp, or who knowingly uses or permits any other person to use the stamp so removed, or who knowingly receives, buys, sells, or gives away, or has in his possession any stamp so removed, or who makes any other fraudulent use of any such stamp, shall be deemed guilty of a misdemeanor, and shall be fined not less than two hundred and fifty dollars nor more than one thousand dollars, or imprisoned for not less than three months nor more than one year, or both.

No change shall be made in the contract which has been filed with the register of copyrights in compliance with the requirements of this section except after thirty days' written notice to the register of copyrights, which shall plainly state the change proposed to be made therein. Any copyright proprietor filing a false or fraudulent contract with the register of copyrights, or offering, granting, or giving, or any person soliciting, accepting, or receiving any rebate or refund of any portion of the royalty named in the contract filed by the copyright proprietor with the register of copyrights, shall forfeit to the United States a sum not less than five hundred dollars nor more than five thousand dollars.

38 H.R. 24782, 60th Cong., 2d sess. (1908).