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pictures on rocks. It is called “ Picture Writing.” The validity of a writing of a photograph can be vindicated on that ground and on no other.
Now, Mr. Chairman and gentlemen, I wish to submit to the committee a new argument—that the committee has never yet heard, and the courts have never yet heard—an argument upon the question of the constitutionality of subjecting any mechanical instrumentalities to any copyright law on any terms.
That new argument is based upon the unanimous decision of the Supreme Court of the United States delivered by Judge Bradley in 1880 (recorded in 101 U. S., p. 100), the case of Baker against Selden.
Decisions of the Supreme Court do not often escape my attention. But when arguing this point in the Apollo case, and before the committees of Congress, I did not know of that decision. It was mentioned by one of the gentlemen in the Apollo case, but he did not mention it in a way to attract my attention. I think he missed the point. But whether he did or not, I wish to read to this committee now the significant sentences which I have underscored in the language of Judge Bradley, which throw a flood of light upon this question and prove to my mind that the Supreme Court at that time unanimously held that copyright must be confined to sources of information. The CHAIRMAN. Is that the case you mention in your
brief? Mr. WALKER. No, it is not mentioned there. It is brought to your attention now for the first time.
Representative LEAKE. Are you an attorney?
The bill of complaint was filed against the defendant, Baker, for an alleged infringement of these copyrights. The latter, in his answer, denied that Selden was the author. or designer of the books, and denied the infringements charged, and contends on the argument that the matter alleged to be infringed is not a lawful subject of copyright.
Selden published a book, the first part of which explained a system of bookkeeping invented by him, and the last part was made up of blank sheets of paper suitable to be used by those who should use the system. Baker reprinted the book, in which, however, he did not include the explanation in words. The Supreme Court said that he did not infringe, because all he did was to utilize utilitarian instrumentalities invented by Selden for the purpose of carrying out the art which he invented and which is described in the letter press, which Baker did not use. To read all the rest of Judge Bradley's opinion would take up all of my time.
The CHAIRMAN. Can you not refer to it now and let the committee read it, as you have only ten minutes, and you can go on to some other point; but I do not care to interfere.
Mr. WALKER. I would prefer to read the portions I have marked. Justice Bradley says:
The book, or series of books, of which the complainant claims the copyright consists of an introductory essay explaining the system of bookkeeping referred to, to which are annexed certain forms of blanks, consisting of ruled lines and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as bookkeeping by double entry; but, by a peculiar arrangement of columns and headings, presents the entire operation of a day, a week, or a month, on a single page, or on two pages facing each other, in an account book. The defendant uses a similar plan so far as results are concerned, but makes a different arrangement of the columns and uses different headings. If the complainant's testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account books arranged on substantially the same system, but the proof fails to show that he has violated the copyright of Selden's book, regarding the latter merely as an explanatory work, or that he has infringed Selden's right in any way, unless the latter became entitled to an exclusive right in the system.
The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of bookkeeping which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right, because no one can use the system without using substantially the same ruled lines and headings which he has appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings given to illustrate the system are a part of the book, and, as such, are secured by the copyright; and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright. And this is really the question to be decided in this case. Stated in another form, the question is whether the exclusive property in a system of bookkeeping can be claimed, under the law of copyright, by means of a book in which that system is explained. The complainant's bill, and the case made under it, are based on the hypothesis that it can be.
It can not be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant's account book can be claimed under any special class of objects, other than books, named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints, and engravings. An account book, consisting of ruled lines and blank columns, can not be called by any of these names unless by that of a book.
There is no doubt that a work on the subject of bookkeeping, though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of bookkeeping and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of bookkeeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of plows, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public.
Now, to my mind the argument is perfectly conclusive that Congress has no constitutional power to subject to tribute of any kind
the performance of a composer's tune in order to subject to tribute of any kind any instrument that is useful in the performance of that tune.
In pursuance of that view, I and my client are entirely satisfied with the musical provision of the Smoot and Currier bills. And my clients are profoundly dissatisfied with the provisions of the Kittredge and Barchfeld bills in that behalf.
Now, the only alternative proposition is the one that has not been embodied in anything that has been mentioned here, namely, the proposition to permit the public to make and sell musical instruments with copyrighted tunes, upon the payment of royalty. If Congress has no power to suppress the manufacture and sale of such perforated sheets altogether, it has no power to attach conditions to the exercise of the right of making and selling such perforated sheets. So that no argument of a constitutional character, which would justify the compulsory royalty scheme, can be thought of which would not also justify the Barchfeld scheme of absolute suppression.
Mr. Burkan challenged the compulsory-license idea on another constitutional ground to which I do not agree. He challenged that on the ground that the right of Congress to legislate on the subject is confined to an exclusive right. I must disagree with him and hold that the greater includes the less, and that if Congress decides to exercise its power under the Constitution, it has the power which can make the law either exclusive or subject it to such limitations as it may prescribe.
But I take the ground now, and shall always while I live, that the Congress of the United States has no power whatever to pass any law that shall impede or burden the business of making and selling perforated sheets, phonograph disks, or cylinders under the copyright clause of the Constitution. I may be overruled. But if this committee attempts to subject mechanical musical instruments to copyright law, either by virtue of a compulsory-license plan, or any other plan, you will be opening Pandora's box and stirring up litigation from one ocean to the other and from the Lakes to the Gulf.
Representative LEAKE. Have you anything to say on the merits of the question as to whether the manufacturers of these mechanical devices should, without compensation, use the results of other people's efforts in a creative direction?
Mr. WALKER. Certainly. If you will read my speech of a year ago in the book (indicating the pamphlet before referred to] you will see it set forth. When you take into account the bottom facts of the case, you will conclude that it is contrary to justice to make or enforce any such law. If I had another half hour I would argue that point, but not having it, I must merely invite your attention to my former speech on the subject.
STATEMENT OF MR. FRANK L. DYER.
Mr. DYER. Mr. Chairman and gentlemen, I had hoped when I came to Washington on this occasion that I would be called upon to represent only the phonograph interests, but the matter of moving pictures was taken up yesterday and I wish to say a preliminary word or two on that subject.
I represent the Edison Manufacturing Company, which is one of the eight concerns engaged in this country in the manufacture of moving pictures and is the owner of the foundation patent granted to Mr. Edison and covering that art. All the other manufacturers of moving pictures in this country are, with one exception, licensed under that patent. Although they all operate as licensees, they are independent companies, having absolutely no corporate relations one with the other. Therefore, I can only speak for my own client.
I agree fully with what Mr. Frohman and his associates have said as to the injustice of obtaining copyrighted but unpublished plays and exhibiting them through the medium of moving pictures. I did not know that this had ever been done, but I would certainly condemn the practice. I do know, however, that one of the licensees to which I have referred has made a specialty of representing historical plays, one of which I think was "Othello," by means of moving pictures, but of course these were not copyrighted and no rights were infringed, either in a legal or ethical sense. I had no idea that anyone in the moving-picture business made use of copyrighted plays, whether published or not, and so far as my client is concerned they would not think for a moment of doing so.
This question of legislation regarding moving pictures comes to me as a complete surprise, and I submit that in view of the great public interest which is taken in these exhibitions the matter should be held in abeyance until all interests can be consulted. There should certainly be no hasty and ill-advised legislation in connection with a matter of such large size. All the companies interested in the manufacture of moving pictures are substantial concerns, they have much money invested in the business, they can be reached at any time by legal process, they have no intention of abandoning the business, so that when everything is considered, this question might well rest until it can be discussed by all the interests involved.
Now, as to the charge, which has been frequently made at these hearings, that there is a phonograph trust. If there were such a trust, I apprehend that it has the right to object to legislation affecting its interest, at least so long as its legality is not questioned. But there is no such thing. The three talking-machine companies in this country have no connection with each other, but, on the contrary, are engaged in the keenest sort of competition. Their legal quarrels take up a good part of my time. It is true they all operate under the plan of maintaining prices for their goods, but this is a modern development which has been extended to many arts. All of these business schemes are perfectly legal and in fact have been commended and sustained by the Supreme Court. (Bement & Sons v. National Harrow Company, 186 U. S., 70.) In that case the court decided that the owner of a patent or his licensee has a legal right, in disposing of a patented article, to impose the condition that it should not be sold to the public below a definite price.
Reference has been made to the Kaufman case in Pittsburg (Edison Phonograph Company v. Kaufman, 105 Fed., 960) and to the Pike case in Boston (Edison Phonograph Company v. Pike, 116 Fed., 863) apparently for the purpose of showing that the phonograph company has been engaged in oppressing its smaller competitors, but, if true, this has absolutely no bearing on the questions we are now discussing.
As a matter of fact, however, both of those suits were actions against phonograph dealers who deliberately conspired with licensees of the Edison Company to violate the conditions of those licenses, and in each case the practice was peremptorily enjoined by the court. Certainly nothing helpful to the supporters of the Kittridge bill can be obtained from these decisions.
Referring now to the proposition of extending copyright protection to mechanical reproduction by talking-machine records, I had intended in considering the constitutional question to direct the attention of the committee to the case of Baker v. Selden (101 U. S., 99), in which the Supreme Court distinguished between the right to print copies of a book describing a new art and the right to enjoin others from practicing that art; and they point out that the scope of copyright protection ought not to be extended beyond the right of publication and must exist independently of the substance thereof; but Judge Walker has so fully covered this point and in so lucid a way that I need not refer to it in detail. The decision should, however, be read by every member of the committee as defining the legitimate extent to which copyright protection should go. To
my mind the only important question involved in the consideration of this matter is purely one of ethics. The so-called manufacturers have certainly been justified, at least legally, in their previous use of copyrighted music. The only question now is, Have the composers a right to a part of the profits which are derived by the manufacturers from the sale of phonograph records utilizing their compositions? But in.the case of Baker v. Selden the same ethical question was involved. Selden had invented a new system of bookkeeping, and had described it in a book. Why had not he an ethical right to prevent others from describing that system at a profit to themselves, or of practicing it for profit? Yet the Supreme Court held that such rights were entirely outside of the scope of copyright, and if to be protected at all, such protection must be by patents.
Congress does not deal with ethical questions, but its powers are strictly limited by the Constitution, and this is true of copyright laws. Congress has no power whatever to grant bounties to composers, however meritorious and deserving they may be. Its sole power is to pass laws which shall promote the progress of science and useful arts, and it certainly has no constitutional authority to enact copyright legislation that on its face will retard the progress of science and the useful arts. I think it can be demonstrated to a mathematical certainty that such would be the case in any bill providing for mechanical copyright, as I will now explain.
We all agree that in any bill which will deal fairly with all interests there should be a provision providing for reciprocity and granting to the citizens or subjects of foreign states the benefits of the law ; only when American citizens are given similar privileges in those states. To my mind it is intolerable that rights should be granted to foreigners in this country that American citizens do not have in foreign lands. Now, we know that Italy is the only country granting protection of this sort, although in France the protection extends to the words of copyrighted music. Admitting that there should be a reciprocity provision, then the fact is that substantially all foreign music would be excluded from the act while American music would