Mr. McCLURE. I have not seen any recent statement; no, sir. You, of course, are familiar with the statement that he made at the time he sent the treaty to the Senate.

Mr. DEEN. Yes. Doctor, you also are familiar with the fact that Members of the Congress have been somewhat embarrassed from time to time by the departments or the heads of departments apparently trying to legislate? In other words, you have heard a good deal about the matter in the past 2 or 3 years, that the departments dictated the legislation, and that Members of Congress have been rubber stamps? You have heard those expressions? Mr. McCLURE. Oh, yes; yes, sir.

Mr. DEEN. Doctor, you have in no way acted, or at least you have not tried to act as a legislator, in your capacity?

Mr. McCLURE. I could not possibly act as a legislator, sir.

Mr. DEEN. In other words, you have not tried to dictate to any members of this committee or unduly persuade them or in any way be obnoxious?

Mr. MCCLURE. I have certainly not intended to, sir; but I leave it to the committee as to what effect my appearing here may have had. Incidentally, I had a very interesting conversation regard to that yesterday with Mr. Kramer, and it may be that he might pursue it further. I think we should always remember the distinction between legislating, that is, passing laws, and merely drafting bills. The Congress maintains legislative drafting bureaus for assistance in the matter of drawing up bills, and it frequently uses employees of executive departments for the same purpose.

Mr. DEEN. Dr. McClure, do you believe, then, that this legislation is proper to accompany our entrance into the Bern Convention on action by the United States Senate on this treaty?

Mr. McCLURE. I do, sir, subject to the amendments that the Interdepartmental Committee on Copyright has asked to be inserted in it.

Mr. DEEN. In the event this committee fails to report the legislation and the legislation should therefore fail to be enacted by the House of Representatives, do you believe that the Senate will act at this session on the pending treaty?

Mr. McCLURE. They have maintained the treaty on the calendar waiting for this legislation.

Mr. DEEN. You do not know whether they would act independently or irrespective of this legislation?

Mr. McCLURE. I can only judge by their past attitude toward it. They deliberately put the treaty back on the executive calendar after they had approved it, in order to wait for the enactment of the legislation.

Mr. DEEN. Do you believe, Doctor, that the $250 minimum damages should be eliminated from the existing law?

Mr. MCCLURE. I do, sir.

Mr. DEEN. Do you think it is used as a club by which they sort of bargain with the users of music and say, "now, if you do not take out a license we are going to take you to court and you will have to pay $250." Do you feel they would do that?

Mr. McCLURE. The impression that I have gotten, sir, from the testimony before the Interdepartmental group and before this com

mittee and before the Senate Committee on Patents sums itself up in my mind in this way, that the actual operation of the minimum statutory damage fixed at a stated amount in money operates as a sort of a subsidized bargaining power which the Government hands by virtue of the law to private individuals for use in the pursuit of their own business.

Mr. DEEN. Do you recall, Doctor, having heard the testimony here before this committee within the past 10 days from some officials of the American Society of Composers, Authors, and Publishers to the effect that they have been getting all the traffic would bear? Mr. McCLURE. I think the record will show definitely that that statement was made on more than one occasion by responsible officials of the American society.

Mr. DEEN. Do you think that is a good way to do business, just as a matter of common every-day business? Do you think that a man ought to get all the traffic will bear, irrespective of the public?

Mr. McCLURE. In addition, sir, to my somewhat too slight efforts to study law, I have dabbled in economics, and my recollection is that economics teaches us that there is a law of monopoly price, and that the law of monopoly price is that in the event a monopoly is enjoyed, normally the holder of the monopoly will charge all that the traffic will bear.

Mr. DEEN. You heard some statement with reference to the Constitution on this question. You heard the Constitution quoted. I notice you have been here from day to day.

Mr. McCLURE. Yes, sir; I have.

Mr. DEEN. The Constitution provides protection for authors, publishers, and composers, and persons who invent patents, and so forth and so on?

Mr. McCLURE. Yes, sir.

Mr. DEEN. Do you recall that the Constitution also, in the preamble, provides for the general welfare, the protection of the general public, and so forth?

Mr. McCLURE. Yes, sir; that appears in the Constitution.

Mr. DEEN. You remember that the statement was made here that the provision in the Constitution was to take care of authors, publishers, copyright and patent owners, and so forth and so on, and that this society was organized and is functioning for the primary purpose of protection of these authors and composers, and so forth. You also believe, Doctor, that the other side, the general public, should likewise have an equal protection, do you?

Mr. MCCLURE. Yes, sir. My interpretation of the Constitution at that point is that the provision of the Constitution was placed there solely for the public welfare.

Mr. KRAMER. Do you yield for a question?

Mr. DEEN. I yield to Mr. Kramer for a question on that point. Mr. KRAMER. Right along that line, Doctor, do you not think it would be well that in framing this amendment or going along with this present bill or in a new bill that may be substituted, a rate to be charged for copyright fees ought to be fixed by the Congress, so that the monopoly would be out of the way and the public would be protected and I would know what the price is going to be?

Mr. MCCLURE. I think the only answer that I ought to make to that, sir, is that such information as we have as to the attitude of other countries toward performing rights societies is in general apparently tending toward government regulation and control, which would, of course, include the feature to which you refer.

Mr. KRAMER. Thank you.

The CHAIRMAN. Congressman Deen.

Mr. DEEN. Doctor, you firmly believe that you are honest and conscientious in that belief, that authors and composers should all be protected? In other words, you think they should have protection in their rights to their property?

Mr. MCCLURE. Absolutely, sir.

Mr. DEEN. You do not think that they ought to be robbed of their property?

Mr. McCLURE. I think, sir, that the Constitution makers exercised excellent wisdom. They evidently considered that the public welfare would be served by the public's granting these privileges to authors and inventors.

Mr. DEEN. Doctor, you have studied a great deal and spent a lot of time and money in your training and education. Your property is mental property-that is, a good deal of it. Your way of making a living is not with your hands but with your head.

Mr. MCCLURE. Yes, sir.

Mr. DEEN. You think that your mental property should be protected, and you think that writers, authors, and composers should be protected?

Mr. McCLURE. Yes, sir.

Mr. DEEN. Mental property should be protected. That is right, is it not?

Mr. McCLURE. I have on more than one occasion assigned my copyright, sir. I believe that copyright is a good thing.

Mr. DEEN. But you also believe that the general public should have equal protection, and that the Constitution had no one particular group or class in mind?

Mr. McCLURE. The Constitution, I think, had in mind solely the public welfare, and the Constitution makers thought that the public welfare would be served by offering this encouragement to creative. genius. I think that was the sole reason why they authorized Congress to give such encouragement to creative genius.

Mr. DEEN. Doctor, is it your feeling that this American Society of Composers, Authors, and Publishers have been on trial here? Is it your feeling that they have been on trial, or that they have been here just as representatives in a hearing?

Mr. McCLURE. I have formed no opinion at all, sir, as to the conduct of these hearings. It seems to me that we have had a good deal of information stated. I may say that I think it was all stated before in other hearings.

Mr. DEEN. That is all, Mr. Chairman.

The CHAIRMAN. Congressman Colden.

Mr. COLDEN. Mr. Chairman, if I may be permitted here, I would like to go back to the early part of this hearing and ask a question. for information.

Our colleague from New Jersey brought out the very interesting point that there is a wide distinction in these copyrights and copy

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right uses and infringements thereon. You remember the points that were brought out, that it is comparatively easy to find the man who infringes on the rights of the author on a book or upon a patent of mechanical character that is manufactured, but when it comes to the subject of music, the making of records, and the use of records in a broadcasting station, it is quite a different problem.

I want to ask you this question, because I have not pursued the subject far enough to know, but since there is a sort of system of royalties established through commerce with the publishing of books and the publishing of sheet music, and I believe the law establishes a 2-cent royalty on a phonograph record, is there not some manner by which we could fix a royalty to be paid by a broadcasting station, depending upon the population within range of that station, or on some other standard of measurement, also for the use of movingpicture films, based upon the admissions, or in other words, is it possible to establish a graduated system of royalties so that the author or the composer or the writer may benefit in proportion to the use of that composition of his?

Is it possible to do that?

Mr. McCLURE. It would seem to me, sir, as you describe it-of course, it comes to me new-that your proposition does not present any undue difficulty from the drafting point of view. That is, a provision of law embodying your idea could certainly be drafted. I express no opinion about it as a matter of policy, for that is a question which you would wish to determine.

Mr. COLDEN. Furthermore, I wish to make this observation: So far in these hearings the controversy seems to have been between the authors and composers on one side and the broadcasters on the other. As Mr. Deen, I think, rather brought out, the interest of the public has to some extent been ignored. I presume that that will be considered as we go on further in these hearings.

Mr. McCLURE. I wish to assure you, sir, at this point that it was the only thing considered by the interdepartmental committee. Mr. COLDEN. The point about it is this: The price the public is going to pay governs the royalty on a book, for instance, to a very large extent. It is to the interest of the authors and the broadcasters both that all these productions have the widest use possible. Mr. MCCLURE. Yes.

Mr. COLDEN. I hope we do no lose sight of that fact in these hearings.

Mr. McCLURE. I do not think that that fact has in any sense been lost sight of, sir. I am sure it was not lost sight of by those with whom I have worked.

Mr. COLDEN. I am not directing that to you personally at all, but I am speaking of the hearings generally.

Mr. MCCLURE. It is my very earnest belief that the Duffy bill as it stands will improve the situation for the creators of the literary and artistic works, just as it will improve the situation for the public at large.

The CHAIRMAN. Congressman Hartley.

Mr. CHURCH. Mr. Chairman.

The CHAIRMAN. Does Congressman Hartley yield to Congressman Church?

Mr. HARTLEY. Yes; I yield.

Mr. CHURCH. You said "as it stands." I understand your group is in favor of the Duffy bill as presented to the Senate, but you really are against those amendments put in in the Senate, as you have expressed it here in your former statement.

Mr. McCLURE. We have asked that the committee make two amendments. I can show you here a copy of the bill with the amendments inserted. I should like to turn it over to the clerk of the committee.

Mr. CHURCH. Those amendments put the bill back to the place it was in before it was amended in the Senate; is that right?

Mr. McCLURE. It does not do it absolutely and exactly word for word, even in respect of the subjects under consideration, but essentially it does that. What it does is this: It strikes out from the bill as it passed the Senate all of the provisions relating to design copyright, it being the opinion of the interdepartmental committee that, regardless of the merits of design copyright as a proposition, it should not go in this bill.

Mr. CHURCH. To make your record follow right there, will you make a statement of it, getting your amendments into the record and before the committee?

Mr. McCLURE. I would be very glad to; yes. The interdepartmental committee on copyright stands in favor of the Duffy bill as it passed the Senate, with two amendments.

Mr. CHURCH. I ask that he be permitted to hand that to the clerk and have it inserted in the record at this point.

The CHAIRMAN. That may be done.

(The amendments referred to follow :)

[S. 3047, 74th Cong., 1st sess.]

[Strike out matter in line type and insert matter in italics.]

AN ACT To amend the Act entitled "An Act to amend and consolidate the Acts respecting copyright", approved March 4, 1909, as amended, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) section 1 of the Act entitled "An Act to amend and consolidate the Acts respecting copyright", approved March 4, 1909, as amended, is hereby amended by striking out the first five words and inserting in lieu thereof the following: "That the author of any work made the subject of copyright by this Act, or his executors or administrators, or any assignee claiming under a written agreement with him or them the right to copyright such work,".

(b) Subsections (b), (c), and (d) of section 1 of such Act are hereby amended to read as follows:

"(b) To translate the copyrighted work into other languages or dialects, or to make any other version thereof, if it be a literary work; to dramatize it; to make from it a motion picture with or without sound or with or without dialog; to convert it into a novel or other nondramatic work, if it be a drama or a motion picture; to arrange or adapt it, if it be a musical or dramaticomusical work; to complete, execute, and finish it, if it be a model or design for a work of art or for a work of architecture: Provided, That copyright in a work of architecture shall extend only to artistic character and design and not to processes or methods of construction;

"(c) To deliver the copyrighted work in public for profit;

"(d) To exhibit the copyrighted work publicly if it be a motion picture, to perform or represent it publicly if it be a drama or a choreographic work or pantomime or, if it be a dramatic or dramatico-musical work or a motion picture and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof, by or from which, in whole or in part, it may in