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compensation show that nothing more is intended. The contracts provide for the payment of a royalty to the composer for every sheet of music published. There is no mention of any compensation for performing rights, and no publisher claims that he owns the performing rights because he holds the record-title to the copyright. The performing right is treated as a distinct and independent estate, belonging to the composer, and the composer disposes of it by a separate contract with a theatrical manager.

This equally applies to mechanical rights. There is nothing said about them in the contracts under which the publishers hold the copyrights for the composers; no compensation is provided for the granting of these rights. These rights were evidently not contemplated by the composer and publisher when they made their contracts, because they were not thought of as enforcible rights. There was no intention on the part of the parties to effect a granting of these rights. Hence, they can not be held to have been acquired by the publishers.

The only compositions in which these publishers control the mechanical rights are those which they have bought outright. And these constitute a very insignificant portion of the musical productions held by them.

A petition signed by nine-tenths of the composers of the country, and among them all the leading composers, has been forwarded to the committee asking for the passage of this bill. And in this petition the composers positively deny that they were parties to any of the Eolian contracts or in any wise sanctioned the same or even had knowledge thereof. It is also stated that most of the composers are not under contract with any publisher, and that where such contracts exist they are for very limited periods, two years being the longest duration, and the contracts relate solely to the publishing of music.

The enactment of the pending bill will greatly strengthen the position taken by the composers that the publishers did not acquire the mechanical rights in their compositions and hence could not pass them over to the Eolian Company. For if this bill is enacted these rights will be new rights created by the bill, and could not possibly be claimed to have been assigned away by the composers by contracts made before the rights came into existence.

Since the introduction of this bill many composers in their contracts with publishers reserve to themselves expressly the mechanical rights in their compositions. They thus anticipate the section of the bill which makes the right to use musical compositions for perforated rolls or phonographic devices a separate and independent estate subject to assignment, lease, license, gift, bequest, or inheritance. The composer under this section of the bill will dispose of the mechanical rights to his compositions independently of his publishing rights, as he now does in the case of the performing rights of operas, musical comedies, plays, etc.

How absurd, then, to claim that this bill was introduced at the request of the Eolian Company or in its interest.

The Eolian Company had no hand in it whatever, has had nothing to do with it in any manner, shape, or form, and it had no representatives urging its enactment at the conferences or before the Joint Committee of the Senate and House on Patents at any of the hearings. The copyright bill is the result of a series of conferences extending over one year in duration called by the Librarian of Con

gress, to which were invited all organizations interested in copyright protection. The conferences were called because of the universal condemnation of the present laws which do not adequately protect, for the purpose of drafting a bill for submission to Congress representing the views of all interested in the subject. And at these conferences the publishers suggested subdivision (g), which was supported by the composers and the Authors' Copyright League.

The proposed bill is not retroactive. It is to affect only such compositions as are copyrighted from the date of the enactment of the law. All compositions written from time immemorial up to the date of the passing of the law are free to the manufacturers of perforated rolls and phonograph records to exploit and make money out of, to their hearts' content, without any interference whatever on the part of any publisher or composer.

The enactment of the law will be a stimulus to the writing of good music, and make this country the musical center of the world. The manufacturers will comb this country and Europe for men who have talent to write music and by paying them for their labors will cause them to exert the energies of their minds in that direction.

This country is becoming the leader in the dramatic field simply because of the encouragement given to dramatists. If Mr. Belasco produces a play like the "Music Master," his rival in business, Mr. Harris, in order to compete and hold his patronage, presents "The Lion and the Mouse;" Mr. Frohman, "The Hypocrites;" Mr. Dillingham, "The Red Mill;" Mr. Shubert, "The Great Divide;" Mr. Fiske, "The New York Idea;" Mr. Brady, "The Law and the Man," and we could go on and enumerate any number of masterpieces that have been written during the past three years because of this great rivalry in the theatrical business.

Can it be supposed that any of these managers would have sought the greatest dramatists and paid very large sums to get these masterpieces written and secure the right to produce them if they knew that every other manager could with impunity take these compositions and produce them in every other theater in the country? Or would these masterpieces have been written if the dramatists knew that every manager could take their property without paying them any compensation there for?

The advantages that will flow from this legislation in the promotion of the musical art are plain. The objections are not entitled to consideration. Their real point is that the bill, if passed, will put a stop to the seizure by the automatic instrument manufacturers for their gain of the composers' property. Anything that stands in the way of this method of making money is described as monopoly.

We have seen how little foundation there is for this monopoly charge. It is not made in good faith.

Among those who are loudest in raising the cry of monopoly we find the manufacturers of phonographs and numerous other devices that are expressly excluded from the Eolian contracts. They do not object because they are in any danger from the alleged Æolian Company. They object because they do not want to be hindered in their practice of appropriating the composers' property.

The opponents of this legislation have formed an association under the name of the American Musical Copyright League, which has for one of its objects the defeating of any legislation that may be deemed

hostile to the interests of the manufacturers of automatic musical instruments. In this association the phonograph and talking machine manufacturing companies are taking a leading part, the representative of one of these companies being the president of the league.

It is a matter of record that these phonograph and talking machine companies are not on principle opposed to monopolistic methods.

From the report of a case decided by the United States circuit court, district of Massachusetts (Edison Phonograph Co. v. Pike, 116 Fed., 863), it appears that the Edison Phonograph Company, one of the opponents of this bill, is enforcing upon all jobbers and dealers regulations that are most oppressively in restraint of trade. These regulations require dealers to sell only at terms and prices dictated by the Edison Phonograph Company, and to sign agreements embodying these terms and prices. Jobbers are forbidden to sell to dealers who will not sign these agreements or who are on what is called our suspended list." Those who violate the restrictions as to the persons to whom and the prices at which the instruments may be sold are prosecuted as infringers.


A case decided by the circuit court of appeals, Seventh district (Victor Talking Machine Co. v. The Fair, 123 Fed., 424), reveals similar methods being practiced by the Victor Talking Machine Company.

Corporations that are pursuing such tactics are not opposed to monopolies. And an association that is led by such corporations is not intent on opposing restraint of trade upon principle.

There is no danger of any monopoly being built up by the music publishers.

But there would be nothing surprising to see a trust growing out of this combination of gigantic concerns that is now attempting to defeat this bill by the false cry of monopoly, although each of them is already a monopoly in itself.

As a final observation on this charge of monopoly, it may be pointed out that it has been held that copyright does not legalize monopoly. (Beman v. Harrow Company, 186 U. S., 70, and Bobbs-Merrill Co. v. Straus, 139 Fed. Rep., 155.) In the latter case the court said:

That there is no sanction or support whatever to the doctrine that the several owners of distinct patents each having a monopoly of his particular patent, or the several owners of distinct copyrights each having a monopoly of his particular copyright, may combine and conspire as to their patented articles, or as to their copyrights or books published under and protected thereby to restrain interstate commerce in articles made or produced thereunder. The right or privilege to form such a combination or conspiracy is not embraced or included within the monopoly granted.

The enactment of this bill will not affect the antitrust laws.

Under these decisions the Attorney-General could commence actions against the Eolian Company under the Sherman Act, or the antitrust laws, to cancel the contracts between the Eolian Company and the publishers if it should appear that these contracts give the Eolian Company a monopoly. However, if it is felt that the Sherman Act is not adequate to cope with the situation, then a clause could be inserted into the bill making it impossible to carry out the alleged monopoly, and if necessary criminal provisions could be added.

It is eminently unfair that hundreds of innocent American composers should be made to suffer because of the alleged wrongdoing

of certain publishers, and it would be equally unfair that publishers who made no such contracts with the Eolian Company should be made to suffer.

Since 1902 a great many new publishing houses have been formed, and those people have not signed. I say to you, in all sincerity and earnestness, that you can not create a monopoly of genius in musical works. I tell you that you can get writers and composers who will make contracts for their works with anyone and who will write for you if you will agree to reward them. You can get hundreds of composers. This country is full of composers and authors who are anxious to write.

The CHAIRMAN. In order to get down to the substance of this matter, do you not believe that if the Victor Talking Machine Company or the Eolian Company or any other one large concern had the exclusive right to produce the music of half a dozen men that could be named among the American composers, they would have an advantage over every other manufacturing concern in this country?

Mr. BURKAN. They would to an extent. But let me give you an illustration. You have a number of theatrical producers, and there are 15 or 20 leading dramatists. The manager that offers the greatest reward gets the best work and the best production. It is a matter of competition, pure and simple. A dramatist will not write unless he knows he is going to be compensated, and he will write in accordance with the character and amount of his reward.

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The CHAIRMAN. There I agree with you absolutely; but the dramatist has only one way of getting his return, and he keeps his work unpublished. The composer of music gets his return from a royalty, after publishing his music and selling it to the public.

Mr. BURKAN. Yes, sir.

The CHAIRMAN. And now he wants still another return.
Mr. BURKAN. Yes; and I will tell you why.

The CHAIRMAN. I am perfectly willing that he shall have it, so far as I am concerned, if that is coupled with a provision that anybody who desires to pay him a royalty shall have the use of his composition.

Mr. BURKAN. Suppose that I am a manufacturer of these devices, and I accept your stipulated provision for a royalty. You say that you will give me 5 per cent. Suppose I wait a year for my royalty, and at the end of a year I get a statement from you offering me $20. Suppose I am not getting a square deal. You have here the authors who are complaining that the publishers have not dealt fairly with them. What security will you give the composer that he will get a square deal?

The CHAIRMAN. Mr. Burkan, I take it for granted that you are not going to contend that all men are dishonest.

Mr. BURKAN. No, sir; I do not.

The CHAIRMAN. Because, if that is the case, I could reverse the story and tell what Mr. Sousa got from the sale of a certain publication of his from a certain publishing house; but I do not want that question brought up. I will say to you, so far as I personally am concerned, that my idea is the royalty should be based upon the sales of the manufacturer, no matter what they are, and he certainly would give as honest a return as a publishing house now gives.

Mr. BURKAN. Do you mean to tell me that the Congress of the United States can, by any act, provide that a manufacturer will pay a royalty, and will honestly pay it?

The CHAIRMAN. I am not saying that. I do not contend that for a minute. But while we are on that subject, I do not see why you should claim that the manufacturer would be any more dishonest than the publisher is.

Mr. BURKAN. I do not. There are some publishers who are dishonest. There are some publishers who cheat their authors and composers. You will find that some manufacturer, some man who is irresponsible, will go into this field, take the property of a composer, and put it upon these records, and then what redress has the composer, if he should refuse to pay, or if he does not deal honestly with him? Is not the relationship between the manufacturer and the composer one of trust and confidence?

The CHAIRMAN. Not altogether so.

Mr. BURKAN. Absolutely so. A man picks out a publisher just as he picks out his lawyer or his doctor, because he has confidence in that individual. You can not make a man honest by legislation.

Representative LEGARE. Did you make this statement:

This proposition of specifying a royalty by statute is not only unconstitutional but absurd. Who shall say what a writer or composer shall sell his works for? This is tantamount to depriving one of property without due process.

Mr. BURKAN. I did not make that statement. I did not say, "Without due process."

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Representative LEGARE. Did you make this statement:

In one part of the proposed bill title is conferred on the writer, and in another section his property is confiscated. However, the bill has not yet passed, and therefore other things may happen before it gets through both branches on Congress.

Mr. BURKAN. That is not my language, sir.

Representative LEGARE. I want to hear you on the question of the constitutionality of this legislation. You say it is unconstitutional? Mr. BURKAN. Yes, sir; I contend that it is unconstitutional. Representative LEGARE. Let us hear you on that subject.

Mr. BURKAN. The Constitution provides that Congress shall have the power to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors the exclusive rights to their respective writings and discoveries. Now, "exclusive right" means all rights in his writings and discoveries. One of the rights that the composer has in a musical composition is to the reproduction of the same by these devices; but it rests with Congress to secure that right.

The CHAIRMAN. The Supreme Court has said that it did not.

Mr. BURKAN. The Supreme Court simply said that the present law did not cover this form of device. If you recognize that this form of reproduction is a part of that writing contemplated by the Constitution and is a result of that writing, then he is entitled to the exclusive right in that record.

The CHAIRMAN. There is no law that recognizes that proposition. Mr. BURKAN. No; you did not legislate upon that proposition, but the moment you do, then you are bound to give him, under this provision, an exclusive right. The purpose of this provision was to in

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