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agreement the United States of America may at its pleasure become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require.
The Supreme Court in this connection says:
By proclamation of the President July 1, 1891, the benefit of the act was given to the citizens of Belgium, France, British possessions and Sweden [sic Switzerland), which countries permitted the citizens of the United States to have the benefit of copyright on the same basis as the ciizens of those countries.
On April 15, 1892, the German Empire was included.
On October 31, 1892, a similar proclamation was made as to Italy. These countries were all parties to the Berne convention.
The opinion of the Supreme Court, written by Mr. Justice Day, continued:
It could not have been the intention of Congress to give to foreign citizens and composers advantages in our country which according to that convention were to be denied to our citizens abroad.
Representative LEAKE. Are you arguing that Congress has no right to extend this copyright act to these rolls? Are you not mistaken? What does this clause in the last paragraph mean?
It may be true that the use of these perforated rolls, in the absence of statutory protection, enables the manufacturer thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properly address themselves to the legislative and not to the judicial branch of the Government.
Mr. PETTIT. Exactly.
Representative LEAKE. Now, is not that an invitation by the court to Congress to legislate on that subject?
Mr. PETTIT. No; it is not an invitation by the Supreme Court to pass unconstitutional legislation. We all know that the Supreme Court never passes (or as a rule, never passes) on the constitutionality of an act or decides any question which it does not necessarily have to decide in order to settle the case which it has before it. Therefore, while the question of the constitutionality of that act was most thoroughly before the Supreme Court in a most elaborate brief by our friend Mr. Albert H. Walker (and a masterpiece, too), they did not decide that question, because it was not necessary to do so; but the fact that they had all those points before them is my warrant here for saying to you that the trend of thought was that any such legislation was without the purview of the copyright problems under Article I, section 8.
I wanted to go a little further and to refer to one other point of which the Supreme Court speaks, and that is as to the question of what is meant by a “copy.” It decided here what a “copy” is under the copyright act. The court defines a copy of a musical composition to be a “written or printed record of it in intelligible notation.” That, of course, applied to the act of Congress which the Supreme Court was considering; but when you consider that the act was also based upon the Constitution of the United States, Article I, section 8, this decision of what is meant by a copy of a writing becomes important here. The court places itself on record as to the thing which an author is entitled to when it defines the copy as it did as “a
written or printed record of it in intelligible notation.” The Supreme Court in this connection says:
It may be true that in a broad sense a mechanical instrument which reprodųces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is reproduced to the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye.
A musical composition is an intellectual creation which first exists in the mind of the composer; he may play it for the first time upon an instrument. It is not susceptible of being copied until it has been put in a form which others can see and read.
Therefore it would appear that the copyrighting of musical instruments would be altogether out of the purview of copyright acts.
Representative WASHBURN. I should like to ask you a question. The CHAIRMAN. The gentleman's time will be up in just one minute.
Representative WASHBURN. Assuming for a moment that you had no doubt as to the constitutionality of this legislation, what then would be your opinion in regard to it?
Mr. PETTIT. Assuming what?
Representative WASHBURN. Assuming that it would be constitutional to include in the copyright law these disks and so on, what would be your opinion as to the wisdom of doing it?
Mr. PETTIT. That would bring us, perhaps, to the compulsorylicense consideration.
Representative WASHBURN. Would you or would you not oppose the putting of this clause into the copyright act, assuming that it would be constitutional to do so?
Mr. PETTIT. I want to say this, that if there should be any such legislation, all the present manufacturers of mechanical instruments should be specially protected by the bill so that their present property rights would not be destroyed. For instance, we have hundreds of thousands of dollars' worth of matrices made containing copyrighted music.
Representative WASHBURN. Very good. Assuming that they were protected, what would be your view as to the propriety of such legislation ?
Mr. Petrit. I think that with proper safeguards to the talkingmachine manufacturers the committee might perhaps we warranted in passing such legislation containing a compulsory-license clause and a clause protecting established property rights.
Representative WASHBURN. Are you going to consider the matter of compulsory license?
Mr. PETTIT. I have not the time.
Mr. PETTIT. I think, perhaps, Mr Walker will do that. As I have consumed the time allotted to me, I will close, thanking the committee for its consideration and attention.
The CHAIRMAN. I should like to give notice now that any speaker who desires a typewritten copy of his remarks for correction may make arrangements with the stenographer, with the understanding, of course, that he pays for such copy, and I want also to say that in the correction of his remarks he is not supposed to change in any way the meaning of an answer or of a question. As to the construction, we have no special objection to corrections, but we do not want the substance or meaning changed in any way.
We will now hear from Mr. Walker.
STATEMENT OF MR. ALBERT H. WALKER.
Mr. WALKER. Mr. Chairman and gentlemen of the committee, I may not be a venerable man, but I have come down to you from a former generation. The occasion of that remark is this, I hold in my hand a printed book entitled "Arguments before the Committee on Patents of the Senate and House of Representatives of the Fortyfifth Congress.” Thirty years ago last November I appeared before the Senate Committee on Patents, which then consisted of Senator Booth, of California ; Senator Wadleigh, of New Hampshire; Senator Hoar, of Massachusetts; Senator Morgan, of Alabama, and Senator Kernan, of New York, in opposition to a bill to amend the patent laws, known as bill No. 300. In the following February I appeared before the House Committee on Patents in opposition to the same bill. This book was printed by the authority of Congress at that time in order to present all the arguments then made.
That bill to amend the patent laws of the United States was backed by a combination of corporations and selfish men which was stronger than has backed up this present Æolian scheme. At one time during that contest a number of influential gentlemen agreed with me in opposing section 2 of that bill on constitutional grounds. Subsequently those gentlemen were the recipients of concessions made by other selfish interests, so that at last I stood alone in opposition to that section. I fought it through both Houses in the Forty-fifth Congress. The committee put the question to the test and were beaten in the House of Representatives.
The speeches I made on that occasion were taken down verbatim, and two paragraphs of those speeches are particularly pertinent here, and I will read those paragraphs to you.
In the speech made in November I said:
I take it the gentlemen of the committee were not sent by their constituents to Washington for the purpose of passing laws which will be held unconstitutional by the Supreme Court. It is the duty of Congress to pass wise laws, but those laws should be always constitutional. No object would be gained by passing the bill as it now is except to promote litigation, raise a large crop of questions that would be finally settled only by the Supreme Court, and on the principles I have enunciated they would confirm our rights. If the bill presented to this committee is clearly unconstitutional, the committee will see such unconstitutional features, and they will sift them out, and adopt those that are constitutional. Members of the committee may think that if they were making a constitution they would make it differently, but still I fancy they will conform to the Constitution as it is and pass no laws not in conformity with it.
All the Senators who were members of the committee thirty years ago are long since in their graves, and all the members of the House committee are dead except three, and at the time I was in that controversy before the committees of the Forty-fifth Congress there were only six men in either House who are in either House now.
On that occasion I called the attention of the committee, presided over by Mr. Vance, of North Carolina, to this extract from the laws of Justinian:
It is a principle of civil law that a lawgiver can not alter his mind to the prejudice of a vested right.
In pursuance of the laws of the United States my client, the Victor Company, has poured out money like water to build up a great mechanical business and the Supreme Court of the United States has lately told us that in doing so we were entirely within our rights. Congress had told us that we were entirely within our rights, and the Supreme Court told us what Congress told us. And now I say that if Congress changes its mind and subjects these musical compositions to copyright, it will be interfering with rights that belong to us.
In the course of that speech that I made before Senator Vance's committee years ago Mr. Vance put this question to me:
The CHAIRMAN. If Congress, therefore, passes an act that is unconstitutional, the Supreme Court would set it aside?
And I replied: Mr. WALKER. They are bound to; and they will set this aside; but the point I make is this, that the Members of Congress equally with the judges of the Supreme Court take an oath to support the Constitution to the best of their ability.
The CHAIRMAN. Of course, that is true. And then I continue: Mr. WALKER. I say, therefore, that when a bill is shown to be clearly unconstitutional-as members of the committee will certainly conclude this second section is when they review the authorities to which I have called attentionCongress has no right to pass such a bill the only effect of which will be to put litigants to the expense of going to the Supreme Court to get it abrogated.
The CHAIRMAN. No; they have no right, if they know it.
I have here also the official published report of all the arguments in June, 1906. My speech is on pages 160 to 181, inclusive, of that book; and if gentlemen desire an elaborate exposition of the situation as it existed at that time, I must ask them to read that speech without taking any of my time on this occasion in repeating any portion of it.
In December, 1906, I made another elaborate speech on the subject, and this [indicating a thick pamphlet] is a book that contains the entire report, and in which book my speech is on pages 270 to 285 inclusive.
In those speeches I took a threefold ground. I said that the proposition which was before the committee at that time was plainly and flagrantly unconstitutional—as now, in the Barchfeld bill and the Kittredge bill.
The second ground I took was that whether it was unconstitutional or not it was unjust; and the third ground, that whether unconstitutional or unjust or not, it was plainly opposed to public policy. I insist upon the correctness of those propositions and insist with all the strength that God has given me.
In the Apollo case, decided by the Supreme Court in February, I prepared a brief entitled “Brief and Argument for Connorized Music Company.” I was not counsel in the case, but the Supreme Court permitted me to intervene to the extent of preparing a brief, copy of which has been sent to every Senator and Nember of Congress. That brief contains the most condensed account ever printed of the origin and progress of the copyright laws. And if I am any judge of the establishment of propositions, I hold that that brief proves beyond the slightest question that Congress has no power to pass any law subjecting to any tribute to any musical composer the making of mechanical music rolls. It has drawn on the laws of England and the laws of Scotland, and no human being has ever attempted to reply to one single paragraph of that brief. The counsel for the Æolian Company were silent as mice are in churches on that question of constitutionality.
Representative LEAKE. May I see that book, please?
It is a universal rule of the Supreme Court, announced over and over again, that they never will decide that a statute is unconstitutional or constitutional in any case .where the statute itself has not been violated. In this case the first line of defense was that the parties had not violated the copyright statute, and the second was that if they had, they had not violated the Constitution. The court decided that first question in favor of the defendant and remained entirely silent on the other question. And that was the duty of the Supreme Court, because when the Supreme Court undertakes to decide whether a statute is constitutional or otherwise it undertakes a mighty jurisdiction, and it will not do so in any case except where absolutely necessary.
Justice Day, who was perfectly familiar with the case, carefully omitted to say anything about it. But there are two passages in the opinion in addition to those mentioned, in which you can read between the lines. In one of those places—the place mentioned by the gentleman from New Jersey-it is natural enough to draw the inference that Judge Day thought of subjecting mechanical devices to the copyright clause of the Constitution. But that is not so. This is the language:
These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination.
The significant sentence is this: But we can not think that they are copies within the meaning of the copyright act.
Now, if they are not copies within the meaning of the copyright act, they are not writings. The staff notation that was involved in the case was undeniably a writing, and the Supreme Court says these perforated rolls are not copies. If not, they are not writings.
In another place the Supreme Court says: The fact is clearly established in the testimony in this case that even those skilled in the making of these rolls are unable to read them as musical compositions, as those in staff notation are read by the performer.
Will any gentleman tell me that anything that can not be read is a writing! The Supreme Court has no jurisdiction to give protection to anything except a writing. So that when the Supreme Court decided as matter of fact that these perforated rolls can not be read, it decided that they were not writings.
The CHAIRMAN. Would you claim, then, that a photograph is a writing?
Mr. WALKER. A picture writing. I think the Supreme Court in the Sarony case went further than it might go now. But the correctness of the Sarony case can perfectly well be vindicated without any inconsistency of my argument. Because leading from this room to the Library proper there is a beautiful picture of which the name is Picture Writing; that is to say, our ancestors are engaged in making