attempt to enforce a higher royalty rate than at present, but it by no means follows that the composer will be enriched thereby. In fact, this will seldom be the case, for the owners of most of such copyrighted musical works as are used by the record and roll manufacturers are the music publishers, not the composers.

The amount received by the composer is usually meager, indeed, as compared to the huge royalties received by the publisher from the same composition, if it meets with any success in mechanical reproduction. It is reported that the actual composer of the waltz, "Three O'clock in the Morning," never got a cent for his creation, while the mechanical royalties alone enriched the publisher by at least $100,000. It is not unusual for composers to get only $25, $50, or $100 for compositions which later earn large royalties for the publisher. Dardanella," probably the greatest popular musical hit of all times, was sold by the composer for $100, and paid the publisher in mechanical royalties alone considerably over $50,000.

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Most popular composers sell their compositions for a flat sum, although some of them are employed at a weekly wage by music publishers. At the time the composer offers his composition to the publisher neither the publisher nor the composer nor anyone else can tell whether it will ultimately appeal to the public. The publisher must and will buy every composition he can at the lowest possible price. Hence the fact that the music publisher, in case the composition becomes a hit, will later be able to get high mechanical royalty rate if this bill is passed, will not materially affect the price he will pay the composer. Only a few of the best-known composers are n a position to force their publishers to share in any success which their compositions may have after they go out on the records and rolls.

It is quite apparent that the real beneficiaries of the elimination of compulsory mechanical license are a comparatively small number of music-publishing concerns and a mere handful of composers who have attained an exceptional reputation. The great rank and file of composers will not benefit in any manner whatsoever. Under the circumstances how can the proposed extension of the monopoly of copyright to cover mechanical reproduction without restrictions contribute materially to the promotion of "the progress of science and useful arts," which is the only reason Congress can have for creating any copyright monopoly whatsoever.

LITTLE CREATIVE GENIUS IN MUCH OF THE POPULAR MUSIC

Much of the current popular music is based upon works of the old masters. The repetition of a single theme taken from an old symphony or opera, or perhaps themes from several original sources, a change in time, a different accent, adaption to the modern dance rythm, make a popular hit which may earn thousands of dollars in mechanical royalties.

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Musical experts say that the particular theme which made Marcheta" a hit can be found in the overture of "The Merry Wives of Windsor," by Nicolai. That appetizing and inspiring song "Yes! We Have No Bananas" may be found almost note for note in part in the "Messiah," by Handel, and in part in I Dreamt That I Dwelt" from the "Bohemian Girl," by Balfe. "I'm Always Chasing Rainbows" in its main theme is note for note like parts of Chopin's 'Fantasie-Impromptu Opus 66." These are but a few of many examples which could be cited. Such is the creative genius which the advocates of this bill say must be protected by a drastic extension of copyright monopoly in order that we may be assured of progress in the musical art.

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If compulsory mechanical license is eliminated citizens of such foreign countries as Great Britain, Canada, England, Italy, Germany, Newfoundland, Australia, New Zealand, and India will be given rights in this country which they do not enjoy in their own countries. This seems unreasonable.

The primary purpose of this bill is "to permit the United States to enter the International Copyright Union." We have heard it inferred, if not actually stated, that this is the reason for the elimination of the compulsory mechanical license. We therefore assert most emphatically that it is unnecessary to alter our existing copyright laws in respect to mechanical reproduction in any way whatsoever in order to permit or facilitate our entry into the International Copyright Union. There is nothing in the Berne Convention, providing what provisions countries subscribing to it shall make in their own copyright laws with respect to mechanical reproduction. In fact, several countries which have

compulsory mechanical license provisions analogous to ours are already in the International Copyright Union.

In concluding this argument with respect to the elimination of compulsory mechanical licenses, we respectfully urge your committee to consider this question carefully from the standpoint of the public. The interest of the public is paramount. We maintain that public interest demands the retention of the principle of compulsory mechanical license and we further believe that the progress of the art of music will not be promoted by its elimination.

RETROACTIVE FEATURES OF THE BILL

Prior to 1909 all music was in the public domain for the purposes of mechanical reproduction. When Congress then extended the copyright control in musical works by giving the copyright owners a restricted control of mechanical reproduction, which he had never before enjoyed, the injustice to the public of interfering with works already in the public domain was clearly recognized. Therefore the compulsory mechanical license provisions were not made retroactive, so that all musical works copyrighted prior to 1909 are still in the public domain for the purpose of mechanical reproduction. Now the advocates of this bill actually propose to take from the public its rights in the same musical works which Congress refused to take in 1909.

The public has had the right to mechanical reproduction of musical works copyrighted since 1909 subject only to the restrictions of the compulsory mechanical license provision. If this provision is now eliminated, and the retroactive features remain in the bill, then the public also loses valuable rights in all musical works copyrighted since 1909.

We do not believe that your committee will ever consent to such a confiscation of the rights of the public.

SMALL MANUFACTURERS WILL BE ELIMINATED

One of the greatest assets of a phonograph record or music roll manufacturer is his catalogue; that is, his library of musical compositions already recorded. It takes many years and requires a huge investment to build up a good catalogue. The older and larger companies have extensive catalogues including most of the worthwhile musical works now in existence. They have not only the master recordings but also large stocks of records and rolls at the factories and in the hands of dealers. They have not had to pay any royalties for the works copyrighted prior to 1909, and they have never had to pay more than 2 cents on those copyrighted since. Furthermore, the established companies have contracts for much of their best music under which they will be able to continue to reproduce it for a 2-cent royalty rate or even less. Newly organized and small companies which are building up their catalogues will have to pay as high royalty rates as the publishers care to ask for the same music. Small manufacturers will be unable to survive competition under such conditions. It will be practically impossible for new manufacturers to enter the field. The tendency will be toward concentration of production under the control of a few large companies.

The mechanical reproducing companies entered this business and invested heavily in it, relying on their established rights to the use of musical works in the public domain. It is unfair to take this right from them now by legislation.

ELIMINATION OF REGISTRATION FORMALITIES

All formalities of registration are eliminated in this bill. It provides that “copyright shall vest in the author of any such work immediately upon the making of the work and shall not depend upon the accomplishment of any conditions or formalities whatever." Copyright protection without any formality of registration extends to citizens or subjects of foreign countries if they are domiciled in this country during a substantial part of the time of production or at the time of first publication or performance; to citizens or subjects of countries within the International Copyright Union without restriction as to place of making, publication, or performance; and to all foreign citizens or subjects if the work is first published in a country which is a member of the International Copyright Union.

The policy of requiring registration of the State's grant of copyright found expression in what is believed to have been the first legislative enactment on the subject of copyright on this continent. The Legislature of Connecticut (January, 1783) after providing for grant of copyright declared that

"No author, assignee, or proprietor of any such book, pamphlet, or chart shall be entitled to take the benefit of this statute, until he shall duly register his name as author, assignee, or proprietor, with the title thereof, in the office of the Secretary of State, who is hereby empowered and directed to enter the name on record." (Acts and Laws of the State of Connecticut, etc., by Timothy Green, 1784, pp. 133-4.)

Following the example of Connecticut, 10 of the 12 States which enacted copyright laws in the period prior to adoption of the Federal Constitution prescribed registration as a condition precedent to the benefit of such law. The purpose of this requirement is expressed with admirable clarity in section 111 of the Maryland act (supra):

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"And, whereas many persons may through ignorance offend against this act, unless some provision be made whereby the property in every such book as is intended by this act to be secured to the proprietor or proprietors thereof may be ascertained: Therefore, be it enacted that nothing in this act contained shall be construed to extend to subject any person whatsoever to the forfeitures and penalties herein mentioned, unless the title to the copy of such book or books, writing or writings, hereafter published, shall, before such publication by the proprietor or proprietors, be entered into a register, to be kept by the clerk of the general court for that purpose; which register may at all reasonable and convenient times be resorted to and inspected by any person, for the purpose before mentioned, without any fee or reward."

Our first Federal Congress applying what it well knew to be the approved practice in all but three of the States, wrote into our copyright law the vital principle of requiring registration of the essential data relative to such copyright claim. Congress has ever since pursued the policy of requiring registration of copyright and deposit of copies and has successively applied these requirements with the further requirement of notice of copyright to the new fields of protection that have from time to time been recognized.

REGISTRATION NECESSARY TO PREVENT INFRINGEMENT

Under the present law it is a comparatively simple matter for a phonographrecord or music roll manufacturer to determine in advance the prima facie copyright status of a musical composition desired for mechanical reproduction and the name and address of the copyright proprietor with whom he must deal. Inquiry at the Library of Congress affords information as to whether or not a given musical work is duly registered and if so a certified copy may be obtained of the certificate of registration. Certified copies of the records as to assignments of copyrights can also be obtained. The advantages of this system are apparent and would of course be lost if the proposed bill is enacted into law.

The difficulty of guarding against infringement of musical works-involved in their public performances for profit or in mechanical reproduction—is further emphasized by the fugitive character of much of the popular music of to-day. The popular demand for the "one-steps" which are played in the dance halls and cabarets, and reproduced on phonograph records and music rolls, intense while it lasts, is often of such brief duration as to allow no time for protracted investigation as to copyright status of the work; and the delays to which the conscientious user might be subjected in ascertaining the rights under the provisions of this bill might well outrun the popular life of the piece.

In this connection there should be borne in mind the great scope that is given to the copyright monopoly in musical works and the resulting increased danger of unintentional infringement. In music it is not uncommon for one composer to innocently introduce in his own composition a movement which had been previously composed by some one other than himself. The writing of music is an exact art, depending upon the use of a small and limited number of characters in varied arrangement, and it is not uncommon for two composers independently to evolve the same arrangement of these characters. The good

faith of the second composer, however, avails him nothing in an infringement suit by the composer who has first copyrighted the work. To this effect see Hein v. Harris, 183 Fed. 107, (2d C. C. A., 1910), in which it was held that in view of the fact that the present copyright monopoly grants to the author of a musical composition the sole liberty of printing, publishing, and vending the same, it is no defense to a suit to enjoin infringement of such copyright that defendant did not knowingly copy plaintiff's composition, but without knowledge of it independently produced substantially the same thing.

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It is interesting to note on the subject of infringement the activity of the corporate bodies formed for the purpose of discovering infringements and prosecuting suits for damages. In this country, the American Society of Authors, Composers, and Publishers and its activities are well known. Europe there are numerous of these societies well organized and amply supplied with the means of ferreting out infringements. Thus in England there is the Performing Rights Society, (Ltd.); in France La Societe des auteurs, compositeurs et editeurs de musique. Presumably none of these societies would neglect the opportunity of placing agents in this country to discover violations of the unrecorded rights which would be extended foreign authors and composers, and it is not difficult to foresee a great volume of copyright infringement suits being added to the already crowded calendars of our Federal court. The sponsors of the proposed legislation apparently have no concern for those members of the American public who would thereby be subjected to great and unavoidable danger of infringement claims by foreigners. Great business enterprises in this country which have hitherto been enabled to reproduce for the American public, not only through the phonograph and player piano, but also on the stage, on the moving-picture screen, and on the radio, the popular works of European authors and composers, are now invited to discontinue this branch of their production or to operate it with no official record as a guide to the status and proprietor of such foreign works, and hence at the peril of being misled and subjected to continuous infringement claims.

There is no essential difference in this connection between the patent and copyright monopolies. No more reason exists for excusing copyright proprietors from requirements as to notice of copyright, registration, and deposit of copies of their protected works than from excusing the patent monopolist from the filing in Washington of his application for patent monopoly in the United States.

This bill takes away the only means by which the manufacturer of phonograph records and music rolls can obtain the information necessary to prevent infringement. At the same time there is introduced into this country a vast amount of copyright property of foreign origin, unknown to our citizens and unascertainable. Even under the existing copyright law many frauds have been perpetrated upon the public. The door to fraud is now opened wide. Our manufacturers should not be placed in such jeopardy. The requirement of registration, which has been an essential feature of copyright throughout the entire history in this country, should be retained.

EXTENSION OF RIGHT TO CONTROL PUBLIC PERFORMANCES

Prior to 1897 the right of the copyright owner of musical compositons had no control in public performances. Since then his control has always been confined to public performances conducted for profit. Through court decision such a public performance as the playing of an orchestra in a hotel dining room or threater has been decided to be a public performance for profit within the meaning of the law, and the copyright owners claim this applies even to the playing of a mechanical piano in a restaurant or pool room. The result has been that the music publishers, by pooling their public performing rights in one society, have for several years collected license fees in an arbitrary manner from public places in return for the privilege of using copyrighted music. The claims of the copyright owners have in many cases been carried to an extreme. Now the publishers propose that their rights in public performances be extended absolutely without limit. If this bill becomes law representatives of their society in every town and hamlet in the country can prevent the local band from playing popular music on the village common of a summer evening unless the demands of the society are met. How about the women's music club meetings where copyrighted music is played? This would be a public performance and the good ladies would have to pay the society. How about

Rotary and Kiwanis Club meetings? No one could give a musicale, dinner, or similar social function and have an orchestra or soloist play or sing copyrighted music without first meeting the demands of this society. It is unbelievable that Congress would ever consider giving this society the right to collect from every public gathering where there is music, when the element of profit is absent.

In fact, we believe the present law goes too far. The purpose of paying the mechanical royalties for music is to promote the sale of the records and rolls. The payment of the royalties should free the records and rolls from all further contribution to the copyright. The exception of public performance for profit contained in the present law should be eliminated.

ROYALTY PAYMENTS SHOULD NOT BE BASED ON PRODUCTION

Under the existing law royalty payments are based upon production. This is an unsound method because there is no real relation between production and royalties. Mechanical royalties are paid by the manufacturer in order that he may have the music necessary for the sale of his records and rolls. If he makes no sales, and hence receives no income, he should not be compelled to pay any royalties. Now, however, the manufacturer pays the royalty on every record or roll manufactured. They may prove upon inspection to be defective and thrown away, but he pays the royalty just the same. It is impossible to estimate the public demand so that there will never be manufactured more records or rolls than will be sold. Consequently, there are now in the hands of manufacturers, jobbers, and retailers an untold number of records and rolls unsold, many of which will never be sold. Royalties have been collected upon all fo them. It is a policy of some manufacturers to take back dead stock from retail dealers and to destroy it. Nevertheless this does not entitle a manufacturer to any rebate of the royalties previously paid. The interest alone on royalties paid on records and rolls manufactured and not yet sold is large.

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There is no justification for basing royalty payments on production instead of net sales, and the present law should be amended in this respect.

WORD MUSIC ROLLS SHOULD BE COVERED BY COMPULSORY MECHANICAL LICENSE

In 1909 it was the obvious intention to cover all mechanical reproducing contrivances by compulsory license. At that time, however, the word music roll, which is merely an ordinary music roll with the words of the song printed on it so that they can be seen as the music is played, was unknown. Consequently there was no attempt to phrase the langauge of the law to cover such rolls. Now the great bulk of the music-roll business is in word rolls. Practically all of the popular musical hits are songs, and music rolls have to have the words printed on them to enjoy any public demand. Consequently as has been discussed previously in some detail the manufacturers of music rolls have to pay the publishers the amount they demand for mechanical contracts. The royalty rate often amounts to 122 cents on popular hits. The publisher can also impose such restrictions as he desires, as the use of a certain number of selections each month and contracts for slow moving and undesirable numbers.

If word music rolls had existed in 1909 they would have been included under compulsory mechanical license, and therefore the law should be amended at this time to correct this omission.

CONCLUSION

In conclusion we respectfully commend to the favorable consideration of your committee our contention that the interests of the public and the interests of manufacturers of mechanical reproducing contrivances are such that this bill in its present form should not be enacted into law.

The principle of compulsory mechanical license has benefited the copyright owner, the manufacturer of reproducing contrivances, and the public, and therefore should be retained.

The retroactive features of this bill would take from the public valuable rights for the benefit of a few persons,. and therefore should be eliminated.

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