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before the Senate and the House of Representatives of the United States Congress, the contents of which provide greater and more equitable protection to the rights of the author and composer of copyrightable matter and the performing rights of the same than the present law of copyrights.
That Brother Harry Knowles is instructed to be present at the public hearings before the Committee on Patents relative to the proposed copyright laws, and to present this resolution.
In order to define our position, I will say that we had these four bills in front of us, and, after reading them, we concluded that the Barchfeld and Kittredge bills gave us more protection than the Smoot and Currier bills. Not being conversant with the rules of procedure in the Senate, we were laboring under the impression that these bills would either be accepted or rejected in their entirety, and therefore we chose the ones that gave us the better protection; but if you will listen to the suggestions and amendments and incorporate them in the present bill, giving such protection as we desire, we have no objection to the Smoot and Currier bills.
Some time ago you asked that we should adhere to the facts. I will not only adhere to the facts, but I will give you proof of those facts. It has been stated here that a great many plays were pirated or stolen. I will say to you that my organization is more concerned in consequence of that fact than of
for the reason that we have had continual complaint from our members of their acts being stolen.
What I mean by acts are short playlets, either dramatic or musical or both. The reason for that is that they are used in vaudeville theaters principally, and every town of any importance in the United States has one or more of these vaudeville theaters, giving from two to three or more performances daily. As these acts are short, it is more easy to acquire them than it is a long play.
These acts are acquired surreptitiously and sold openly, principally in Chicago. It has happened to us on a great many occasions that we have, under the present law, been unable to protect our members from such stealing and playing of these acts throughout the United States.
The CHAIRMAN. If the penalty clause were changed so as to provide for a sentence of imprisonment, would not that wipe out all of your difficulty?
Mr. Knowles. Hardly, as I will point out to you a little later.
A catalogue came under my notice the other day from Chicago. It is called “Descriptive catalogue of one-act plays, burlesque, curtain-raisers, sketches, etc., for sale or rent by the Chicago Manuscript Company, 104 La Salle street, Chicago, Ill.” In looking through this catalogue, to say that I was surprised does not express my feeling. I was amazed to see included in this catalogue compositions which I absolutely knew were copyrighted, giving a full description of them, and offering to sell them to anyone for $2 per manuscript copy.
In looking over this list I thought possibly there was some catch in it and that they really would not furnish you with a manuscript of a copyrighted play, so in order to be thoroughly sure of that I sent, through our stenographer, $2, and ordered one of these acts which I felt quite sure was copyrighted and which is listed in here under the descriptive title of "Skinnie's Finish.” In return we got this letter:
DEAR SIR: We sent you this day the manuscript of Skinnie's Finish." Hand you herewith list of other sketches. Trust the one sent you proves satisfactory and that you will favor us with your future orders. We are, sincerely,
THE CHICAGO MANUSCRIPT COMPANY. I have here the copy of the manuscript, which I offer in evidence before this committee.
(For the manuscript see Appendix.)
In looking through this manuscript I find that it is identical not only in word and language, but in what we term “ business," in describing the various motions gone through on the stage during the performance of this act, and giving every particular of the performance in the ordinary way.
That, I think, proves conclusively that they really do issue these copies, according to the catalogue.
The CHAIRMAN. Is that an absolute reproduction of the original ?
Mr. KNOWLES. Name and all. But I will go further than that. I thought there might be a possibility of some defect in the copyright of this sketch and that probably they would not be liable under the present law. There is a play produced at Chase's vaudeville theater, Washington, D. C., this week that is copyrighted. I found that play is also listed in this catalogue, giving a full description of the act, the characters, and the business, even down to the most minute detail. I saw that performance and it conforms exactly with the description given in this catalogue. I had Tom Nawn get me his copyright, which I have here to show you that he has complied with the law.
The CHAIRMAN. Could you not, with a provision for imprisonment in the penalty clause, stop this sort of work?
Mr. Knowles. Only in this way: We have found that no matter what the penalty is, if it merely attaches itself to the person who is producing or playing this act, it has been very difficult for us to get them. We are in New York and these people are moving continually all over the country.
I will show you how it affects our members. Mr. Tom Nawn is playing this act in most of the important houses in the East, but when he wants to take it into the West, they (the managers or agents) say that they can not use it because it has already been played there.
Now, what we want is a provision with reference to aiding and abetting, which you have in section 32.
The CHAIRMAN. You are in close touch with all of the theaters in the country, are you not?
Mr. KNOWLES. No, sir; they are too far apart for us to be in absolute touch with them, and they have a change of bill every week. It is impossible for us to find out exactly what is going on in this respect, unless we hear of it from some member who has been injured.
Representative LEGARE. What is the amendment you propose ?
Mr. KNOWLES. I am not thoroughly conversant with the law or how to interpret it, but I want to say I believe section 31 will cover our point. It provides:
That any person who knowingly and 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 subject to a fine of not less than one hundred dollars nor more than one thousand dollars and stand committed to jail until said fine and costs are paid.
Representative LEGARE. Does that cover your situation?
Mr. Knowles. I think it does. If, in your judgment, it does, we shall most heartily approve of that section in the bill.
There is one other matter to which I wish to call attention. The present law asks for two printed copies. If a man writes a sketch for himself, and not for sale, he does not want to go to the expense of having it printed. I believe that if you will put in a provision to cover that, and say that he may submit one copy, it will be an advantage,
STATEMENT OF MR. HERBERT PUTNAM, LIBRARIAN OF
The LIBRARIAN OF CONGRESS. Mr. Chairman, I am merely to submit a statement which has been compiled at the request of Mr. Chairman Currier. At his request I undertook to get together the foreign statutes, so far as I could find them, having any bearing upon the question of the importation of authorized editions, with special reference to the privilege of importation for use and not for sale.
It proved to be a considerable task, and was complicated by the necessity of referring to commentaries as well as the statutes themselves to find out what the actual practice is.
This statement is probably too lengthy to be incorporated into the record, but in turning it in to the committee I think I should call attention to the fact that I have had copies manifolded for three interests which I supposed would be more particularly concerned, one for the publishers, one for Mr. Jenner, representing the individual, and one for Mr. Cutter, representing the library interests. They have none of them seen it. I have copies for them, which will go them, because, when this statement is turned in to the committee, there is a possibility that, as a whole, it may not be printed with the record.
The CHAIRMAN. I think it ought to go into the record.
The LIBRARIAN OF CONGRESS. Even then, in order to avoid any misunderstanding, I think I must call attention to three points, because they appear at different points of the document,
In the first place, so far as I have been able to find, the right to a subdivision of the copyright territory exists abroad to quite an extent. It is termed in Germany “Getheiltes Verlagsrecht.” It is termed in France “ Edition Partagee.'
The right of territorial subdivision includes the right to the exclusion of foreign editions to some extent, but I have not found that upon the Continent the distinction is drawn, in the statutes, between books originating abroad and those not so originating.
I do find, however, that as early or as late as 1844 such a distinction appears in the British statutes.
I find also a reference, which I think I ought to call to your attention, in the latest work on copyrights by Professor Kohler, a famous
German authority, of the University of Berlin. He remarks that whatever the exclusion, exceptions, upon special considerations, ought to be made in favor of learned institutions, and he states that such an exception seems to be specifically provided for only in the American law. He seems, however, to have overlooked the statutes of Canada, which come first in this statement, and which should be specifically noted for three things:
In the first place, because of the exception in favor of public libraries, college libraries, and incorporated institutions; in the second place, because of the exception in favor of the individual, who is allowed to import, through the Canadian licensee, a copy of the foreign edition, not “by permission of the proprietor," but who has a right to demand that the proprietor shall import for him; and in the third place, because of the provision (I refer still to the Canadian act of 1900) that the general prohibition of importation which is covered by the act, even as against an edition of a book originating abroad, may at any time be suspended by the Minister of Agriculture if certain facts are brought to his attention.
I read these provisions:
(2) The minister of agriculture may at any time in like manner, by order under his hand, suspend or revoke such prohibition upon importation if it is proved to his satisfaction that
(a) The license to reproduce in Canada has terminated or expired; or (b) The reasonable demand for the book in Canada is not sufficiently met without importation ; or
(c) The book is not, having regard to the demand therefor in Canada, being suitably printed or published; or
(d) Any other state of things exists on account of which it is not in the public interest to further prohibit importation.
Now, Mr. Chairman, the copyright office is not partisan in this matter, or as to any other part of this bill, except to that which relates to its own administration. In submitting this statement to be printed I have felt it fair to all the interests to call attention to these divers facts that seemed to appear from an examination of the authorities, because the record of yesterday seems now defective, Mr. Jenner, for instance, depending upon a need and a sentiment for which justly he made appeal, and Mr. Putnam, on the other hand, depending upon what he regarded as general principles of copyright protection, but there was no reference on any part to the existing foreign statutes.
(For the statement see Appendix.)
Again, Mr. Chairman, before you take a recess, may I offer these other documents, to be inserted in the record in connection with this hearing? I understand that Chairman Currier approves of this. They are simply the documents as to the conferences and bill that went into the hearings of 1906, with the inclusion of the call issued by the Librarian for the first copyright conference and the introductory statement by the Librarian to the conferees. Among the others are the statement by the Librarian to the committees in presenting the bill.
I ask this, Mr. Chairman, principally for the reason that the further we get away from these conferences the more danger there is of a misunderstanding about them and of misrepresentation, such a misunderstanding as that of Mr. Putnam yesterday, which I was obliged to correct, to the effect that any participation in those conferences estopped any participant from objecting here, or that they were legislative hearings in any sense. Mr. Putnam's misunderstanding was very natural, as, whimsical as it may seem, in view of certain allusions, he was not present at the first conference and took but a small part in the others.
STATEMENT OF MR. J. L. TINDALE, OF NEW YORK CITY, N. Y.
Mr. TINDALE. Mr. Chairman and gentlemen of the committee, I represent the music publishing house of G. Schirmer, New York. I am a member of the executive committee of the Musical Publishers' Association, and I represent a number of composers of music who reside in New York. I also represent, indirectly, some 1,500 or more composers scattered throughout the country. Those composers have already submitted a petition to the committee, but I shall not ask you to encumber the record with it, since it is doubtless already
The parties I represent are well pleased with the Smoot and Currier bills, and wish to thank you for them. There is only one point with which we are dissatisfied, and that is the provisions with regard to reproducing rights for mechanical instruments.
It has been stated by Mr. Burkan, and the decision of the Supreme Court of the United States in the White-Smith case has shown to us that the present law is defective in that it gives us only a partial copyright—that is to say, a copyright only on the printed page which .simply conveys the arbitrary symbols of music to the eye.
Now, music does not manifest itself to us through the eye. It manifests itself, essentially, through the ear and only by the sense of hearing. The hearing is the only one of the five senses through which music can make itself known to us or give us pleasure. I might go over the five senses, and would like to say that music can not be seen. No one is living who can say that he has ever seen music. It is true that a musician can take a score of music and scan it, and, in his imagination, he can see what it might sound like; but that is all he gets out of it. He gets no more out of it than the hungry man who looks through the lighted window of a hotel dining room and sees the guests enjoying their meal. He gets an imaginary meal, but nothing more substantial.
Next, I could say that music does not appeal to the sense of taste. It can not be tasted. Music also does not appeal to the sense of smell nor does it appeal to the sense of touch. It appeals only to the sense of hearing. The only one of the five senses through which we can get pleasure out of music is the sense of hearing.
Therefore, it is a very simple matter that we ask you gentlemen to give us, and it could be expressed something like this: To copyright any system of notation or any system of record which can convey the musical idea of the composer to the ear—that is, by the only channel through which it can answer the purpose for which music is written.
In this respect the Kittredge and Barchfeld bills are what we hope you gentlemen will decide to give us.
Now, I would like to give you our reasons for asking you to adopt here the Kittredge and Barchfeld bills.
Representative CURRIER. Do you want a provision in the bill by which foreign composers will get these rights as against the American