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ings of accounts; and it is similar ruled lines and headings of accounts which, in the application of the art, the bookkeeper makes with his pen, or the stationer with his press; while in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, “lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters patent.
II. Music, in the ordinary sense, is copyrightable solely because it can be expressed visibly by a particular variety of writing. As a collection of sounds it is purely sensuous and only makes a pleasing impression on the ear, just as a perfume or confection produce pleasing impressions on the senses of smell and taste. It conveys absolutely no intellectual ideas as is the case with literature or the drama or art. To the ordinary mind music merely “sounds good.” If copyright protection is to be extended broadly to nonintellectual, sensuous sounds, carrying no impression of thought and divorced from the visible embodiment which, in a sense, may be called a writing, it is not seen why the protection should not with equal propriety be extended to purely sensuous perfumes and confections, which appeal to other senses and which may also be aptly described by printed or written words.
III. To interpret the constitutional word "writings” to include “sounds" may result in future difficulties as to the interpretation of other apparently fixed and definite terms. There is more or less public criticism at the present time of the modern tendency to change the effect of the Constitution by interpretation rather than by amendment. Of course it would be intolerable to so restrict the Constitution that it could not be fairly applied to the existing conditions of life, but while the instrument is in a certain sense elastic it should not be stretched to the danger point. It seems impossible to give to the word "writings” an interpretation that will include
sounds," without practically closing one's eyes to the situation. No question of expediency and no question of moral or ethical right would warrant such an absolutely indefensible position. If adopted it will surely return to plagne the American people at some future time. In extending the word “ writings” so as to include charts, photographs, paintings, and statuary the word has certainly been stretched to an extent that never could have been contemplated. But, in a measure, the extension has been always in the one direction and the idea of visibility has never been departed from. Unless there be a reasonable limitation in constitutional interpretation there might as well be no Constitution at all.
IV. The question here presented is purely ethical. To nine men out of ten hearing only one side of a case it would appear that the composers have an ethical claim to a part of the profits derived from the unauthorized use of their creations. It is to be observed, how ever, that the author of a cook book or the author of a book on architecture has identically the same ethical right in the case of a profitable use of his ideas by others. Copyright laws are not granted to secure ethical or moral rights, nor to provide for bounties or pensions to composers, however meritorious. The constitutional power is limited to the promotion of “science and useful arts." The proposed departure would not effect this result, but it is believed would effect a directly contrary result. Reciprocity as between American and foreign composers must, of course, be secured. It is repugnant to all sense of fair play and justice to grant to a foreigner in this country rights which are not granted in his home country, either to himself or to Americans. Under present conditions, with no incentive on the part of manufacturers to advance one class of music to the exclusion of others, more than half of the compositions used by them are of foreign origin. To impose a tax for the use of American music and permit unlimited use of foreign music would necessarily operate to the prejudice of American music. There would then be a direct incentive on the part of the manufacturer to avoid paying this tax and to utilize foreign music to the greatest extent possible. Of course there would necessarily be isolated instances of special “hits" by American composers which would have to be used, but there would be the temptation, perhaps unconscious, to advance the use of foreign music to the exclusion of American music. The selfishness of human nature would make this inevitable, however benevolent the intentions of the manufacturers might be. Certainly a proposition to tax American music and to provide for unlimited use of foreign music would not conduce to the promotion of this branch of American art. Many people in this country believe that home industries are promoted by taxing the productions of their foreign competitors, but none has ever yet contended that American interests would be promoted by taxing the home productions and admitting foreign productions free of taxation.
V. If the rights of composers which they now have were curtailed, or if their profits under present conditions were lessened, or, in other words, if the use of their music by the manufacturers worked a real and substantial injury to the composers, everyone should be willing to make almost any sacrifice to remedy such a condition. But such is not the case, and the evidence presented to the committee shows that the rights of composers were never so profitable as at present. Letters have been introduced showing that many composers and publishers seek the advertising advantage that is derived from the manufacturers, and some of them actually complain that they are being unfairly discriminated against by manufacturers who do not use their music. It is impossible to believe that in a business where the conditions must be reasonably uniform some composers and publishers should seek the assistance of the manufacturers, and others should maintain that they were being ruined and oppressed by the manufacturers. Apparently those publishers and composers who advocate a change in the law are putting forward this plea of an injury to their rights solely as a justification for their position and without any real basis for it. Their position is a purely sordid and selfish one and, in the case of many of them, before this controversy arose they were as earnest as anyone else in soliciting the advantages of free advertising from the manufacturers' use of their compositions.
VI. In the case of joint patentees an ethical question sometimes arises which, if superficially considered, seems to appeal as strongly to the average minds as the claims advanced by the composers and publishers. Where one of two joint patentees practices the patented invention and derives enormous profits therefrom, his copatentee has sometimes asked that these profits be divided. His claim is that the
profits were derived from the use of his intellectual idea. The courts, however, have always decided that no such division of profits could be enforced, because the arrangement does not provide for a reciprocal responsibility in case of loss. This is true in the present case and we have only heard that the publishers and composers are only anxious that the profits derived from the use of their compositions should be divided. Would they be willing to assume their proportionate share of any loss which might be incurred? Yet in the production of these mechanical devices very large expenses are incurred in employing high-priced artists and 'in carrying out intricate and expensive factory operations. In some cases the expenses involved in putting out a single selection might run into the thousands of dollars. Should the piece be a failure could the manufacturers consistently look to the publishers for a reasonable contribution? It would seem that in a moral sense if the publishers have a right to participate in the profits of the enterprise they should be called upon to contribute toward any losses which might be incurred.
VII. If, not withstanding all these facts, and many other objections which can be and have been urged, Congress, in the exercise of its wise discretion, shall decide to adopt the principle it should be done with the caution that its importance requires, in order that while granting to the composers this new and important right, the corresponding rights of the manufacturers may not be destroyed. This can best be done by means of a separate mechanical copyright law, bearing the same relation to the ordinary copyright as exists between mechanical patents and a design patent. The rights granted by a patent are infinitely less than those which would be granted under the mechanical copyright law. A patent gives to the inventor the right to make, use, and sell the physical embodiment of his idea. He has no protection whatever in the idea which, when once disclosed, becomes public property. Anyone can utilize the same idea provided it be embodied in another way. A mechanical copyright, however, would protect the idea or the incorporeal sounds whether expressed in a writing, as a sheet of music, or whether recorded phonographically, mechanically, or by perforations, or whether publicly performed. The copyright law of no country has gone to this extent, nor has any patent law. Ideas when once expressed have always been freely accessible to all and have only been protected when embodied in some new and original form. Because of this fact the public is entitled to at least as much protection from unjust copyrights as from unjust patents. The patent law does not permit the proprietor of an invention to obtain a patent running for perhaps seventy-five years, on the payment of a fee of 50 cents, which is substantially the procedure in connection with copyrights. The patent law permits an application to be made only by the inventor. It exacts a fee of $35, and its term is limited to seventeen years. There should be similar, though not necessarily identical, restrictions concerning the grant of mechanical copyrights. Furthermore, a patent application must be accompanied by the oath of the inventor in which he solemnly swears, among other things, that to the best of his knowledge and belief the invention is new and original with him, and that it was never known or used before his invention. A similar oath should accompany each application for a mechanical copyright, in order that the danger of improper grants may be avoided and the manufacturers be made to pay royalties on fraudulent and plagiarized compositions. Instances of this possibility have been brought to the attention of the joint committee.
Furthermore, in the case of patents, they can be transferred only by formal assignments, which must be placed on record in the Patent Office within a limited time to be effective as against a later assignment of the same invention for a valuable consideration and without notice, and such a provision should be included in the copyright law.
VIII. The advantages of a separate copyright bill are the following:
(a) It is an entirely distinct and separate subject matter, involving independent considerations and formalities.
(6) It can be carefully framed without delaying the passage of the main copyright bill, the importance and desirability of which appear to be admitted by all.
(c) If unconstitutional it would fall alone, without possibly carrying with it the whole fabric of the copyright law.
(d) It has the tremendous advantage of putting the composers on guard as to their rights, since in every case a formal application would have to be signed, a formal oath would have to be executed, and in case of transfer a formal assignment would have to be made. 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 composers would not know of the rights which the publishers were securing. If, however, the composer in each case had the matter clearly brought home to him, there would be a more reasonable hope that the composer, and not the publisher, would be primarily benefited by the mechanical copyright law.
(e) The separate law could very properly include a provision under which the manufacturers could make use of copyrighted compositions upon the payment of a uniform royalty, and this could be done without in any way complicating the restricted right thus granted, with the unlimited and exclusive right granted by an ordinary copyright to print, etc.
(1) The manufacturer would have a fair assurance that he was paying royalties to a person honestly entitled to receive them.
IX. Everyone admits that the rights which would be granted by a mechanical copyright create a new species of property. The Supreme Court has decided that the use by manufacturers of copyrighted music in the past has been lawful. The creation of the new right must not work undue hardship to the manufacturers. To make such rights exclusive would permit a monopolization of practically all music, even if the plans for this monopolization have not already been laid. The evil result of such a combination of copyrights can be only prevented by giving to all manufacturers the equal privilege of utilizing any copyright upon the payment of a fair royalty. Would such a provision in a mechanical copyright bill be constitutional ? In Wheaton v. Peters (8 Peters, 591) it was decided that copyright did not exist in common law, but was entirely a statutory right, and that the conditions and limitations imposed by the statute were in no sense in contravention of the rights contemplated by the Constitution. Obviously, the imposition of any condition was a restriction on the exclusiveness of the grant. Congress being empowered to grant exclusive rights can obviously grant any lesser rights. The limitations imposed by Congress in connection with the grant of patents are of interest in this connection.
To warrant the protection of a patent the invention must be novel and useful, it must not have been patented before, nor must it have been described in a publication more than two years old, nor must a foreign application have been applied for more than two years before, nor must it have been abandoned, nor in public use more than two years. All of these are conditions, which if present, prohibit the grant of any rights whatever, exclusive or otherwise. A further limitation is found in the case of the product of a new process, where the process is practiced abroad and the products sold in this country. This would seem to be naturally a part of an inventor's right, but the courts have uniformly refused to recognize it. Furthermore, in the case of a new art or machine it must involve inventive ingenuity as distinguished from mechanical skill, and in this respect the inventor's rights are further curtailed. The courts have decided, furthermore, that the States themselves, in the exercise of their police power, may impose limitations which very seriously further limit the rights granted to patentees.
In Patterson 1. Kentucky (97 U. S., 501) the patent related to a certain improvement in illuminating oils. The patented oils were sold in Kentucky in violation of a State statute prescribing certain tests as to safety. The patentee's agent was convicted for violating this statute. It was contended by the patentee that the grant conveved the exclusive right to sell the patented thing throughout the United States and that the Kentucky statute limited the constitutional right. The Supreme Court, by Mr. Justice Harlan, decided that the sale of patented inventions was always subject to the police power of the States. To this extent, therefore, the rights granted were not exclusive.
In Jordan v. The Overseers of Dayton (4 Ohio, 295), referred to in Patterson v. Kentucky, the defendant was prosecuted for violating an Ohio statute regulating the practice of physic and surgery. The defendant contended that he was engaged only in the sale of a patented medicine. The supreme court of Ohio decided that under its police powers the State could exclude such sales, and to this extent also the rights granted by the patent were not exclusive.
In Vanini et al. v. Paine et al. (1 Harr. (Del.), 65), also referred to in Patterson v. Kentucky, the patent related to a mode of drawing lotteries which was attempted to be practiced in the State of Delaware in violation of a statute of that State. The court of errors and appeals held:
It therefore can not be admitted that the plaintiffs have a right to use an invention for drawing lotteries in this State merely because they have a patent for it under the C'nited States. A person might with as much propriety claim a right to commit murder with an instrument because he held patent for it as a new and useful invention,
In Allen v. Riley (203 U. S., 216) the constitutionality of a Kansas statute was involved which provided that any written obligation given for the purchase of a patent right shall be indorsed with the words“ given for a patent right," and that an authenticated copy of the patent, together with an affidavit of the genuineness thereof and other matters, shall be filed with the county clerk. The Supreme Court held that this was a legitimate exercise of the police power, and