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duce men to work and labor and exercise their ingenuity so that the people would be thereby benefited.

The CHAIRMAN. We do not give an exclusive right to a patent beyond a limited time.

Mr. BURKAN. But you give the patentee a complete monopoly during that limited period without any strings attached. You make him a czar over his invention during that period.

Representative LEAKE. It is an exclusive right during a limited period of time.

Mr. BURKAN. It is an exclusive right for a limited time; but the moment you attempt to legislate and say that this form of reproduction is a result of that writing, then you are bound to give him exclusive rights. I say now that if you pass this bill that question will be tested as to its constitutionality, not by us, but by some manufacturer, and I will stake my reputation upon the proposition.

Senator BRANDEGEE. Have you any decision or authority to the effect that, under this language, we must grant absolute and exclusive rights, and that we can not limit it or put any condition upon it?

Mr. BURKAN. The question has never come up, to my knowledge, in any case.

Senator BRANDEGEE. Do we not give an exclusive right under the copyright law, provided they shall allow certain books to be imported by certain people and file two copies with the Library, under certain limitations?

Mr. BURKAN. Yes; you give them the right, subject to certain restrictions. In giving this exclusive right you may impose any reasonable condition in order to obtain the exclusive monopoly.

Senator BRANDEGEE. As I understand Senator Smoot, his proposition is that it would be constitutional, under this same provision, if we gave the author of music the exclusive right to sell it and to reproduce it, subject to a royalty to be paid by certain people for using it.

The CHAIRMAN. We give the libraries certain rights. The author does not have exclusive rights.

Representative LEGARE. Would not this be a condition precedent? Mr. BURKAN. It would be a condition, but it could not be enforced in the courts, because the purpose of the Constitution was to induce a man to write and give him sole control of his labor, because a man would not write if everybody could take his property.

Senator BRANDEGEE. But you are going to demonstrate that this proposition of Senator Smoot is unconstitutional. What are your authorities?

Mr. BURKAN. The wording of the Constitution.

Representative LEGARE. Can you file a brief on this subject?
Mr. BURKAN. Yes; I will do so with pleasure.

The CHAIRMAN. Do you think it is unconstitutional to allow the libraries the privilege of importation?

Mr. BURKAN. I have not given that matter any attention or study, and I am not prepared to discuss it at this time. But I do not think it is, because it is imposing a reasonable condition to obtain an exclusive right.

The CHAIRMAN. Is not that upon the same identical footing as the proposed royalty plan?

Mr. BURKAN. No, sir; it is entirely different, because in considering this proposition you have got to go back to the history of the Constitution. You have got to go back to the debates in the conventions and to the copyright legislation of the different States prior to the adoption of the Constitution, in which it appears very explicitly that in order to induce a man to write or to exercise his intellectual faculties it is necessary to give him full rights in his property, because an author will not write, if everybody can take his property.

Senator BRANDEGEE. That is not a constitutional question or argument. That is a question of policy.

Mr. BURKAN. It is a constitutional question, absolutely.

The CHAIRMAN. Do you not think that if the right is a grant of an additional right it can be limited?

Mr. BURKAN. Only in so far as the Constitution permits. The only power you have to grant copyright is derived from the Constitution, and whatever right you have to legislate here depends solely upon this provision of the Constitution. Outside of that you can not act. You may grant exclusive rights for limited times. Not limited rights for limited times.

Now, what is to prevent you, or to prevent the legislature, from passing an act that every dramatist must permit his works to be produced by anyone upon the payment of a royalty of $1. What is to prevent the legislature from passing an act that every author must sell a book for a royalty of 5 cents a copy. Would you not by such legislation defeat the spirit and intent of the Constitution to give the author exclusive rights in his property, so that he would have some inducement to work?

The CHAIRMAN. There is another provision that would take care of that the provision that you can not confiscate a man's property.

Mr. BURKAN. Under the Constitution you can deprive the author of his right by failing to legislate upon new methods of reproducing his work not covered by present statutes.

Representative LEGARE. That is the position in which you find yourselves at this moment. You say that we can not give you a right without we give you the exclusive right, when the Supreme Court says that here is one right that we have not given you?

Mr. BURKAN. Yes, sir.

Representative LEGARE. Then you have not got the exclusive rights, because the Supreme Court says you have not got all of your rights. Mr. BURKAN. Because of the wording of the statute.

Senator BRANDEGEE. But they do not say the statute is unconstitutional on account of that wording.

Mr. BURKAN. No; they do not.

Senator BRANDEGEE. Then why have they not, in effect, decided that you can grant an exclusive right, with limitations?

Mr. BURKAN. The question of the constitutionality of this provision was not raised before the Supreme Court. The entire discussion rested upon the meaning of the word "copy."

Senator BRANDEGEE. And you think that statute would, under your theory, be declared unconstitutional if the question was raised? Mr. BURKAN. I do not say so.

Senator BRANDEGEE. Then will you not say why this provision which Senator Smoot proposes would be unconstitutional?

Mr. BURKAN. I say that the moment you grant the right which the Constitution permits you to grant, you must grant it in accordance with the Constitution. You may refuse to give a copyright, but once you exercise the power, in pursuance of this provision of the Constitution, you are bound to give it in accordance with its intent and meaning. Whatever power you can exercise is only by virtue of this provision.

The CHAIRMAN. The law as it stands to-day is in that same situation. A restricted right has already been granted. under the present law.

Senator BRANDEGEE. Do you think you have answered my question up to this time?

Mr. BURKAN. I would like to have it stated again.

Senator BRANDEGEE. My question is this: You say that the constitutionality of the present copyright statute has never been directly raised?

Mr. BURKAN. It has been raised in the Sarony case-the photograph case.

Senator BRANDEGEE. You claim that it is impossible for Congress to grant a copyright without its being exclusive?

Mr. BURKAN. Yes; in so far as you take away from the author the exclusive rights in his property. You may give him only one set of rights and exclude all other rights. For instance, you may give a composer or a dramatist only the right to publish, and refuse to give him the right of public performance, but the moment you do legislate to give him the right of public performance, then that right must be exclusive.

Senator BRANDEGEE. Now, I ask you if they are exclusive, with reference to the copyright of books?

Mr. BURKAN. Yes, sir.

Senator BRANDEGEE. If that is so, how can the law provide that libraries can import free, without being subject to the provisions of the copyright act, and that the person to whom the copyright is granted shall deposit books in the Library?

Mr. BURKAN. În the first place, the question has never been raised that I know of. I do not think the authors have ever raised the question.

Senator BRANDEGEE. Do you think you have answered my question? Mr. BURKAN. I am answering it now. No; I do not think that provision is unconstitutional, because it does not deprive the author of his exclusive rights for the reason that, in your copyright law, you say that he must deposit two copies with the Librarian, and that is one of the conditions for granting this exclusive right for a limited time. You may impose and enforce any reasonable condition which. is formulated according to the Constitution, but you may not dictate to him upon what terms he shall dispose of his property. You have no right to regulate the price. The Government can not regulate the price or the royalty and say that he must dispose of his property upon such a basis, because whatever right you grant must be granted in pursuance of this particular provision of the Constitution. So the moment you say to a man that you extend his rights, it must be such an extension as the Constitution confers upon him, and that is an exclusive right.

Senator BRANDEGEE. He has no right whatever unless we do legislate further?

Mr. BURKAN. No, sir.

Senator BRANDEGEE. If we grant him a right which he does not now have, how can you say that we are depriving him of any right which he does have?

Mr. BURKAN. I do not say that you are depriving him of any right which he does have.

Senator BRANDEGEE. I understood you to say that unless we gave him exclusive right, when he has no right now, that we are depriving him of a right when we confer one upon him under limitation.

Mr. BURKAN. No; I say that, under the Constitution, you are bound to give him only such rights as the Constitution provides, and I say that you are bound to give him exclusive rights.

Senator BRANDEGEE. Then I ask you how it is that we have been able not to give an exclusive right, but to give a partial right, or a right under certain conditions?

Mr. BURKAN. Do you refer to importations?

Senator BRANDEGEE. I do, and to the provision that copies shall be deposited in libraries.

Mr. BURKAN. That is a condition of granting the copyright.


Senator BRANDEGEE. Would not this be a grant upon conditions? Mr. BURKAN. No; because you are not giving him full rights. In one case you say to a man that he must give up two copies to obtain an exclusive right, and in the other case you say to the man that must sell these things to everybody for 1 cent or 2 cents a copy. Senator BRANDEGEE. No; we do not say that he must sell it at all; but we say that if he does sell it to anybody he must give the others an equal chance.

Mr. BURKAN. That is equivalent to saying that he must do it.

Representative LEGARE. I would suggest that you file a brief on this subject, as I have my doubts about that matter myself.

Representative PRATT. Primarily your purpose here is to secure protection to the authors and composers.

Mr. BURKAN. Yes, sir.

Representative PRATT. You believe that the manufacturers of musical devices have a place in the world?

Mr. BURKAN. Yes, sir; I certainly do.

Representative PRATT. And that one contributes to the commercial value of the other?

Mr. BURKAN. Yes, sir.

Representative PRATT. You think there is a common interest?

Mr. BURKAN. Yes, sir; I do. I believe both should be protected. Representative PRATT. I want to ask if it would not be possible to segregate these interests and treat them separately, making provision for their separate and distinct interests.

Mr. BURKAN. There was a good deal of argument upon that proposition when we appeared before the Joint Copyright Committee of Congress last session, and some urged that each industry should have a separate bill like the English copyright act.

Representative LEGARE. You represent the publishers and certain composers. We are trying to get a good bill to protect the publishers and the authors and everybody else. This fight stands in the way

of all the parties, and we will probably get no bill at all through Congress.

Representative PRATT. My question is whether it is best to bring them all in under one provision, or to have them provided for separately.

Representative LEGARE. You should get what you can for the people you represent, under this bill.

Mr. BURKAN. I am trying to get all I can for my people. The publishers are anxious to have this bill passed, in so far as it relates to mechanical instruments and the misdemeanor clause. The composers, however, are also very urgent about this mechanical music problem, because they, with the publishers, claim that it interferes with their business, and for that reason that Congress should do something to compensate them. They say they have spent thousands of dollars in advertising these compositions, and then these mechanical music-machine people come along and take the compositions, use them upon their machines, and profit by their labor and energy. They contend that the manufacturer ought to pay a part of the advertising, and that he ought to do something to encourage the composer to write. They say that if these people are permitted to go on and not encourage the composer, he will not write and will not give to the public his effort and labor, without some compensa


Representative PRATT. If upon mature consideration it should appear that it would be better to separate these interests and treat them individually, would you then be willing to agree to such a plan?

Mr. BURKAN. I would be willing to agree, provided there was some asurance that this matter would not be taken out of the bill and never resurrected. That is the danger in the matter.

Representative LEGARE. You would rather take the chances of losing it all?

Mr. BURKAN. The danger is that it may not get out of committee.


Mr. KNOWLES. Mr. Chairman and gentlemen of the committee, in order to more clearly define my position to you here and the interests I represent, I will, with your permission, read a short resolution passed at the last regular meeting of this organization in New York. It reads:


The White Rats of America, a corporation organized under the membership law of the State of New York, whose membership is composed of about 2,000 singers, composers, dramatists, authors, and performers of all classes engaged in the theatrical business throughout the United States, Canada, Europe, and other parts of the world, at a duly authorized meeting held at the meeting hall of said organization, at 1553 Broadway, borough of Manhattan, city of New York

Resolved, That it indorses and lends the support of its members to the advocacy of the so-called Kittredge and Barchfeld copyright bills now pending

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