SEC. 7. On the filing of any such application and the payment of the fee required by law, the Librarian of Congress shall cause an examination to be made of the form of said application, and if on such examination it shall appear that the claimant is justly entitled to a mechanical copyright under the law, the Librarian shall issue a mechanical copyright therefor.

SEC. 8. Mechanical copyright may be granted and issued to the assignee of the author or composer, but the assignment must first be recorded in the Library of Congress. And in all cases of an application by an assignee for the issue of a mechanical copyright, the application shall be made by and shall be accompanied by the oath of the author or composer.

SEC. 9. When any person, having written or composed any new and original literary or dramatic work or musical composition, for which a mechanical copyright might have been granted, dies before a mechanical copyright is granted, the right of applying for and obtaining the mechanical copyright shall devolve on his executor or administrator in trust for the heirs at law of the deceased, in case he shall have died intestate; or if he shall have left a will disposing of the same, then in trust for his devisees, in as full manner and on the same terms and conditions as the same might have been claimed or enjoyed by him in his lifetime; and when the application is made by such legal representatives, the oath or affirmation required to be made shall be so varied in form that it can be made by them. The executor or administrator duly authorized under the law of any foreign country to administer upon the estate of the deceased author or composer shall, in case the said author or composer was not domiciled in the United States at the time of his death, have the right to apply for and obtain the mechanical copyright. The authority for such foreign executor or administrator shall be proved by certificate of a diplomatic or consular officer of the United States.

SEC. 10. Every mechanical copyright or any interest therein shall be assignable in law by an instrument in writing, and the grantee of any mechanical copyright, or his assignees or legal representatives, may in like manner grant and convey an exclusive right under his mechanical copyright for the whole, or any specified part of the United States. The assignment, grant, or conveyance shall be void as against any subsequent purchaser or mortgage, for a valuable consideration, without notice, unless it is recorded in the Library of Congress within three months from the date thereof. If any such acknowledgment, grant, or conveyance of any mechanical copyright shall be acknowledged before any notary public of the several States or Territories, or the District of Columbia, or any commissioner of a United States circuit court, or before any secretary of legation or consular officer, authorized to administer oaths or perform notarial acts under section seventeen hundred and fifty of the Revised Statutes, the certificate of such acknowledgment, under the hand and official seal of such notary or other officer, shall be prima facie evidence of the execution of such assignment, grant, or conveyance.

SEC. 11. It shall be the duty of all grantees of mechanical copyrights and their assignees and legal representatives, and of all persons making or vending the printed work or musical composition or any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear, the whole or any material part of such work or musical composition, to give sufficient notice to the public that the same is protected by mechanical copyright, either by printing conspicuously thereon the words “ protected by mechanical copyright," together with the day and year the mechanical copyright was granted; or when, from the character of the article, this can not be done, by affixing to it, or to the package wherein one or more of them is contained, a label containing the like notice; and in any suit for infringement, by the party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement and continued the infringing acts after such notice.

SEC. 12. Every person who, in any manner marks upon anything made, used, or sold by him, for which he has not obtained a mechanical copyright, the name or imitation of the name of any person who has obtained a mechanical copyright therefor, without the consent of the grantee of such mechanical copyright or his assigns or legal representatives, or in any manner marks upon or affixes to any such mechanically copyrighted article, device, or composition, the words "protected by mechanical copyright," or any words of like import, with intent to imitate or counterfeit the mark or device of the grantee, without having the license or consent of such grantee or his assigns or legal representatives, or who, in any manner, marks upon or affixes to an uncopy

righted article, work, or composition, the words "mechanical copyright," or any words importing that the same is mechanically copyrighted, for the purpose of deceiving the public, shall be liable for every such offense to a penalty of not less than ten dollars with costs, one-half of such penalty to the person who shall sue for the same and the other to the use of the United States, to be recovered by suit in any district court of the United States within whose jurisdiction such offense may have been committed.

SEC. 13. Damages for the infringement of any mechanical copyright may be recovered by action on the case in the name of the party interested, either as grantee or assignee. And whenever in any such action a verdict is rendered for the plaintiff, the court may enter judgment thereon for any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict, together with the costs.

SEC. 14. In any action for infringement the defendant may plead the general issue, and, having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters: First, that the literary or dramatic work or musical composition had been created, published, produced, or was known to others prior to the supposed writing, creation, production, or composition thereof by the author or composer; second, that the supposed author or composer was not the original and first creator of any material or substantial part of the literary or dramatic work or musical composition, protected by the musical copyright; and third, that the literary or dramatic work or musical composition was known to the public prior to the application for musical copyright. And in notices as to proof of previous creation, knowledge, publication, or production of the work or composition copyrighted, the defendant shall state the names and residences of the persons alleged to have created or produced, or to have had the prior knowledge of the work or composition copyrighted, and where and by whom it had been published or known; and if any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him with costs. And the like defenses may be pleaded in any suit in equity for relief against an alleged infringement, and proofs of the same may be given upon like notice in the answer of the defendant and with the like effect.

SEC. 15. The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by a mechanical copyright, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages which the complainant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direction. And the court shall have the same power to increase such damages in its discretion as is given to increase the damages found by verdicts in actions in the nature of actions of trespass upon the case. But in any suit or action brought for infringement of any mechanical copyright there shall be no recovery of profits or damages for any infringement committed more than three years before the filing of the bill of complaint or the issuing of the writ in such suit or action.

SEC. 16. Any manufacturer of devices, contrivances, or appliances, especially adapted in any manner whatsoever to reproduce to the ear, literary and dramatic works or musical compositions, such as perforated music rolls or talking-machine records, shall be entitled to make use of the whole, or any materal part of the work or composition covered by any mechanical copyright, subject to the following provisions:

First. The manufacturer shall notify the Librarian of Congress in writing of the manufacturer's intention to use the subject-matter of the mechanical copyright, giving the title thereof and the date on which the copyright was granted.

Second. The Librarian of Congress shall thereupon promptly communicate with the grantee of such mechanical copyright or with the assignee of record thereof, advising such grantee or assignee of such notice from the manufacturer and of the title and date of the mechanical copyright intended to be so used, and the Librarian of Congress shall thereupon require such grantee or assignee to produce proof of ownership of the mechanical copyright and of authority to receive royalties from the manufacturer for its use. In case of dispute

as to the ownership of any mechanical copyright the Librarian of Congress shall determine the question under such rules and regulations as he may prescribe, and his decision in the matter shall be final.

Third. As soon as practicable the Librarian of Congress will notify the manufacturer in writing of the present owner of the mechanical copyright to be used and to whom such manufacturer shall pay royalties.

Fourth. The royalties to be paid by any manufacturer for the use of any mechanical copyrighted work or musical composition shall, unless agreed upon by contract between the manufacturer and copyright proprietor, be based on the actual list selling price to the public of the devices or appliances embodying the copyrighted work or composition, and in every case shall be three per cent of such list selling price regardless of the price at which such devices or appliances may be sold by the manufacturer to agents, jobbers, or dealers, and regardless of any discounts which may be allowed therefrom.

Fifth. The manufacturer shall keep an accurate record of each device or appliance embodying the mechanical copyright which may be made and sold and from and on which record the above royalty shall be based. Said record shall be open at all convenient times, not oftener than once a month, to the inspection of the copyright proprietor or his duly authorized representative. Sixth. The royalties payable under this act shall be paid by the manufacturer to the copyright proprietor or his nominee in writing, once every three months, by the manufacturer, and each such statement shall be accompanied by a statement of the number of appliances or devices made and sold utilizing the copyrighted work or composition, and such statement shall be sworn to as true and correct by the manufacturer, or if the manufacturer be a corporation by some officer thereof having knowledge of the facts.

SEC. 17. Whenever any manufacturer shall apply for leave to use any mechanical copyright, as provided for in the preceding section, and shall comply with the various conditions thereof, no action for infringement of the inechanical copyright shall be maintained either against the manufacturer or any one selling or using the device or appliance made and sold by the manufacturer and embodying a mechanical copyright; and no action shall be maintained against a manufacturer nor injunction granted where it shall be shown to the satisfaction of the court that the manufacturer's use of any mechanical copyright was unwitting and steps are taken by the manufacturer promptly to comply with the requirements of the preceding section.

SEC. 18. The rights hereby granted for mechanical copyrights are independent of other rights in literary or dramatic works or musical compositions to which the author may be entitled under the copyright statutes.

SEC. 19. The rights and privileges granted by this act shall be extended to authors and composers who may be citizens or subjects of a foreign State or nation which grants either by treaty, convention, agreement, or law, to citizens of the United States, the benefit of copyright on substantially the same basis as is granted under this act; or when such foreign State or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may at its pleasure become a party thereto. The existence of the reciprocal 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.

SEC. 20. That all actions arising under this act shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippines. Actions under this act may be instituted in the district of which the defendant is an inhabitant or in the district where the violation of any provision of this act has occurred, and where the defendant has a regular and established place of business. Any such court, or the judge thereof, shall have power, upon bill in equity filed by any party aggrieved, to grant an injunction to prevent the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and shall be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants; but the defendants or any or either of them may make a motion to the proper court of any other district where such violation is alleged

to dissolve said injunction, upon such reasonable notice to the plaintiff as the court or judge before whom such motion shall be made shall deem proper, service of said motion to be made by the plaintiff in question or his attorney in the action. Said courts or judges shall have authority to enforce said injunction and to hear and determine a motion to dissolve the same as herein provided as fully as if the action were pending or brought in the district in which said motion is made. The clerk of the court granting the injunction shall, when required so to do by the court hearing the application to dissolve or enforce such injunction, transmit without delay to said court a certified copy of all the papers on which the said injunction was granted that are on file in his office.

SEC. 21. The final orders, judgments, or decrees of any courts mentioned in the first preceding section may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases finally determined in said courts, respectively.

SEC. 22. That in all recoveries under these acts full costs shall be allowed. SEC. 23. That nothing in this act shall prevent, lessen, impeach, or confound any remedy at law or in equity which any party aggrieved by any infringement of a mechanical copyright might have had if this act had not been passed.

SEC. 24. The manufacturer of any device or appliance adapted to mechanically reproduce to the ear the whole or material part of a literary or dramatic work or musical composition, and who shall comply with the requirements of section 16 of this act, shall, if the recording of the work or composition involves an original and artistic arrangement and adaptation, be entitled to a mechanical copyright thereon, subject to and upon complying with the following conditions:

(1) The manufacturer shall make application in writing for such mechanical copyright, giving his name, citizenship, and address if an individual; the names, citizenship, and addresses of all the members if an association or firm, and the State of incorporation and domicile if a corporation.

(2) A fee of fifteen dollars shall be payable with each application.

(3) Two copies or samples of the device or appliance embodying the mechanical copyright shall be deposited with the Librarian of Congress after the same shall have been placed upon the market for sale in the United States, and shall be preserved by the Librarian of Congress in suitable archives for that purpose.

(4) The term of any mechanical copyright which shall be thus granted to a manufacturer on the device or appliance utilizing the copyrighted work or composition shall expire with the mechanical copyright on such work or composition.

Mr. DYER. Under such a bill as I propose the application for a mechanical copyright must be made by the composer himself, just as a patent application must be made by the original inventor. The composer must be an American citizen, unless, of course, equivalent rights are granted to Americans in foreign States, in which case the citizens or subjects of those States can receive the benefit of the law. The applications should be accompanied by an oath made by the composer, in which he shall swear that he is the first and original composer and that the composition has never before been known or published. Inventors are required to make similar oaths. Why should there be any discrimination in favor of composers? The fee should be a substantial fee. Inventors pay $35 to the Government for each patent. Why should composers have to pay only a fee of 50 cents? This is not a fair and equitable charge, when we consider that under a mechanical copyright composers would obtain a larger measure of protection and for an enormously greater time than inventors. There should be a provision providing for the assignment of copyrights that would be similar to the provisions in the patent law; there should be something that would prevent Mr. Sousa or Mr. Herbert from making broad, general, and indefinite assignments of their works, but permitting them, of course, to make individual

assignments of each individual work. The bill should include a provision as to universal royalties, because unless this is done the monopolization of current music becomes readily possible, and the result of that would be not only harmful to the public and to the composers, but it would place the smaller manufacturers at a tremendous disadvantage. We hope this feature will not be left out if the bill is to be adopted. If the proper provisions are made and the necessary safeguards are introduced, the honest and meritorious composers will be benefited and the public will not be particularly harmed. They, at least, will know that they are paying royalties only on the bona fide article, because the composer must make oath that the composition was composed by him and that it was never known before.

How much time have I, Mr. Chairman?

The CHAIRMAN. You have ten minutes yet, sir.

Mr. DYER. I have written out a few reasons why I think a separate bill somewhat along the line I have proposed should be adopted, and as these are in short paragraphs I will read them.

(1) The question of mechanical copyright is an entirely distinct and separate subject-matter, involving independent considerations and formalities from an ordinary copyright. To attempt to combine the two species in a single bill would be confusing and no doubt would result in constant litigation.

(2) A separate bill can be carefully framed so as to fairly protect all interests without delaying the passage of the main copyright bill, the importance and desirability of which appear to be admitted by all. And it does appear to me, speaking parenthetically, to be unfortunate that a bill that seems to be so generally desired by all the authors and the literary people of this country should be delayed in its passage by a rather sordid commercial struggle, such as we have been having on this question. I should like to see the main bill passed.

(3) If the proposition of mechanical copyrights is unconstitutional, as I firmly believe it is, the separate bill would fall alone without possibly carrying with it the whole fabric of the copyright law.

(4) It has the tremendous advantage of putting the composers on guard as to their rights, since in every case a formal application will have to be signed and a formal oath will have to be executed, and in case of transfer a formal assignment will have to be made.

I might say in passing that at the present time the composer in practically every case simply sends his music to the publisher, who attends to the formalities of the copyright. Under a separate bill the publisher, while being free to obtain copyright in the usual way, would have to go back to the composer if he wished to secure a mechanical copyright. He would have to present an application to the composer and say "Please sign this," and he would have to present an oath to the composer and say, "Please swear to the truth of these facts," and he would have to present an assignment to the composer and say "Here is an assignment; please execute this.” Naturally, the composer would ask " What are these papers that I am signing?" and in this way complete understanding of the matter could be obtained by the composer, which I am sure is not the case now. Under existing conditions, when a composer turns over his composition to a publisher the latter attends to all formalities of securing the copyright, and in many instances-I presume in most instances composers do not know the rights which the publishers have