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In the message of President Roosevelt to Congress, December, 1905, he urged the necessity for a revision of the copyright laws, and said, among other things:
A complete revision of them is essential. Such a revision to meet modern conditions has been found necessary in Germany, Austria, Sweden, and other foreign countries, and bills embodying it are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it hare from time to time been pressed upon Congress.
We thoroughly sympathize with the effort to revise and codify our copyright laws, and in so far as this effort relates to copyrights on musical pieces, the American Musical Copyright League approves of and cordially indorses in the main the added protection to composers which the Currier bill, H. R. 25133, provides. We protest, however, most vigorously against the section of the Kittredge bill, Senate bill 8190, which brings the various mechanical reproducers within the domain of copyright.
OTHER COUNTRIES EXPRESSLY PERMIT MECHANICAL REPRODUCTION OF
COPYRIGHTED MUSIC. The convention of the International Union at Berne, Switzerland, 1886, expressly exempts mechanical reproduction of music from the domain of copyright. The countries represented and participating were:
Germany, France and colonies, Italy, Great Britain and colonies, Japan, Belgium, Denmark, Spain and colonies, Algeria, Norway, Sweden, Switzerland, Tunis, and Luxembourg.
The only countries which appear to have made the matter the subject of special legislation are Austria, Germany, and England.
In the Austrian copyright law of 1895 we find an express clause making mechanical reproduction free. Section 36 reads:
The manufacture and public use of instruments for the mechanical reproduction of musical works shall be no infringement of copyright in music.
In 1901 the German musical copyright law was passed. By an
The sale of disks, plates, cylinders, strips, and other parts of instruments which serve mechanically to reproduce musical compositions, is permitted.
Although the intention of the German musical copyright act of 1901 is to permit freedom to use copyrighted music in mechanical players, a clause was added making an exception where the renditionin respect to dynamic power, duration of tone, and tempo is in a manner similar to a personal performance.
At the time of its passage it was difficult for anyone to understand why the exception was made and it was thought to be aimed at talking machines. As is customary under the German parliamentary practice an interpretation was asked for prior to the final reading of the bill, and it was then expressly stated that the exception had no reference to phonographs and graphophones, but to modern piano players where the instrument was provided with such a device as to make the rendition similar to a personal recital.
Its purpose and real significance can be better understood when we see that through this apparently innocent clause the industry has been monopolized by one company, the same concern which has made contracts with publishers and is seeking to monopolize the player industry here also. (See printed report of copyright hearings, December 7, 8, 10, and 11, 1906, pp. 341 and 342.)
All music, copyrighted or not, can be freely used in Germany today on records for electric pianos, hand organs, music boxes, organettes, talking machines, and other mechanical instruments.
In England in 1906 the British musical copyright law was passed. The subject had been under consideration for eight years and strenuous efforts to include mechanical players were made by the same interests who are now seeking to have the offensive subsection E, section 1 of the Kittredge bill, enacted into law. As in this country, contracts had been secured in advance, and the same scheme for obtaining a monopoly of the mechanical-player industries was on foot. Instead of permitting this, the English bill, after providing penalties for pirating musical compositions, says:
Provided, That the expressions “pirated copies " and plates shall not for the purposes of this act, be deemed to include perforated musical rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records, re spectively, are made.
LITIGATION INVOLVING THE QUESTION IN VARIOUS COUNTRIES. When Congress adjourned in March, 1907, suits involving the question whether talking machine sound records were a violation of the rights of composers were pending in France, Italy, Hungary, and Belgium. The same interests seeking the legislation here have stirred up the subject by litigation and unsuccessful attempts to secure legislation abroad.
In France it has been held that to reproduce a musical composition by means of a talking-machine record is no violation of the composer's rights. The court, however, decided that the use of the words did infringe. The case is on appeal and will probably be reached in the Supreme Court next year.
In Italy a similar suit is pending, the plaintiffs being Italian publishers and composers, the defendants, the Gramophone and Typewriter Co. (Limited), of London, a British corporation. The lower court decided in favor of the publishers and this was sustained by the appellate court. In its opinion the court makes reference to the fact that Italy was a party to the international convention of Berne, which made mechanical reproducers free, but it adds, “We find that the Italian delegates to the conference were appointed by the King, but not confirmed by Parliament and, therefore, Italy should not be bound.” This does this count impeach the action of the representatives of Italy at the conference of the international union at Berne, notwithstanding that their credentials were not questioned by the delegates assembled. The court goes on to say that if it was import nt for Switzerland to protect its music-box industry, it is also important for Italy to protect its composers. The decision seems based on national expediency rather than upon a broad treatment of the subject from an international view point. The case is on appeal to the supreme court.
In Hungary a similar case is being tried. The inferior courts decided in favor of the publisher. Since Congress adjourned last
March, however, the supreme court in Hungary has reversed the action of the lower courts, and as is the custom under the Hungarian practice, has referred the question to a commission of experts, to determine whether a sound record should be considered within the domain of copyright. If the commission decides that it should not be so considered, the case is dismissed. If the commission gives as its opinion that the sound record is a violation of the composers' rights, then the court orders a new trial, for it is convinced that the matter was not sufficiently inquired into nor thoroughly considered at the first trial.
The supreme court of Belgium, May 2, 1907, since the adjournment of Congress, has decided in a case before it that talking machine sound records do not infringe the composers' copyright. The complainants were Puccini, an Italian, and Massenet, a French composer. The defendants, Pathé Frères, French manufacturers of talking machines and records. This is the first case to be finally decided by the highest tribunal in any country involving the question. In reaching its decision the court sustains the action of the lower court, which reached its conclusion after.
Considering that these apparatus can not be assimilated to the writing, or the notation by an engraving process, of the thoughts of the author, that they have nothing in common with the conventional signs permitting reading or compre hension of the work to which they are related; that isolated from the rest of the instrument they remain in the actual state of human knowledge without any utility, that they are only one organ of an instrument of execution.
It will thus be seen that in every other country where the matter has been subject of legislation, laws have been passed exactly the reverse of what is proposed in the Kittredge bill, and the mechanical reproductions of copyrighted musical composition is expressly permitted. Also, that in the only country in which a case has been finally decided by the highest court involving this question, in Belgium, the court by its decision makes mechanical reproductions free. That in France, the appellate court has declared the mechanical reproduction of a musical composition to be lawful, but the case is on appeal. That in Hungary, the whole matter is suspended pending a decision of the question propounded to the commission of experts, and that in Italy the decision favoring the composers is on appeal.
WHITE-SMITH PUBLISHING CO. V. APOLLO CO.
A case is now pending in the Supreme Court of the United States involving the question whether a perforated roll used in a piano player violates the composers' copyright under existing law. This is the famous case of the White-Smith Publishing Company v. The Apollo Company
The real plaintiff is the manufacturing concern that is seeking the monopoly of the piano player and music-roll business. This concern caused the suits to be entered and is paying the expenses involved.
In the trial court Judge Hazel decided that the perforated roll did not infringe. This decision was sustained by the unanimous opinion of the circuit court of appeals in New York, Judges Townsend, Lacombe, and Coxe. The matter is now to be finally passed on by our Supreme Court. It is expected that the case will be reached sometime in December.
Should the Supreme Court reverse the decision of the lower courts, and decide that the perforated music roll does infringe, the object sought by those who are endeavoring to monopolize these industries will have been secured. They can accomplish their purpose either by a favorable decree in the Supreme Court or by the passage of the Kittredge bill or some other bill of substantially the same tenor by the Congress.
The subject is of paramount importance to all manufacturers of mechanical musical instruments in the United States and to all citi. zens, and we most earnestly desire that it be settled at the earliest possible date.
I will not endeavor at this time to indicate to you the numerous reasons why, even if constitutional, the objectionable subsection E, section 1 of the Kittredge bill or any similar clause, should not be embodied in our copyright laws.
These reasons are fully set forth in the two printed reports of the arguments before the Committee on Patents of the Senate and House of Representatives, conjointly, June 6, 7, 8, and 9, 1906, and December 7, 8, 10, and 11, 1906, copies of which may be obtained by addressing the Librarian of Congress.
It is important, however, to add that the rights proposed to be granted to American citizens under this bill may also be enjoyed by citizens of foreign countries in those cases where the country in which such foreigner resides grants to citizens of the United States substan. tially the same protection as it grants to its own citizens,
As already shown, in no other country do composers enjoy the extraordinary rights which the Kittredge bill proposes to give them. It follows, should the bill become a law as reported, that every other country will gladly give our citizens the limited rights which it confers on its citizens in exchange for the extraordinary privileges which its citizens will obtain from us. And, in actual operation, this must necessarily mean that every man, woman, and child in the United States who purchases a talking-machine record, a piano roll, a music-box sheet, or any of the other numerous mechanical forms of record, will be compelled to pay tribute in the shape of composers' royalties on every record purchased. They are to be penalized every time they want to hear the best music (and the best comes from Europe), for the benefit and enrichment of a few European publishing houses, and composers who in league with certain manufacturers are secretly behind this legislation and who hope, notwithstanding that they enjoy no such privileges in their own country, to enormously enrich themselves at the expense of the people of the United States.
I am sure President Roosevelt had no such purpose in mind when he sent his original message to Congress in respect to the codification of our copyright laws.
We shall use every legitimate effort in the coming fight to remove the objectionable features from the Kittredge bill, and shall urge upon the Congress, in the interest of international copyright, the passage of sich a bill as will bring our laws into conformity with the laws of England, Germany, Austria, and the other great powers in respect to this important subject.
IMPORTANT EVENTS IN THE MATTER OF THE COPYRIGHT BILL SINCE
FOREGOING STATEMENT WAS PREPARED.
1907, December 2.—The Sixtieth Congress convened. Representative Currier, chairman of the House Committee on Patents, introduced a copyright bill, H. R. 243. This bill practically follows the British musical copyright act of 1906 regarding reproductions by mechanical players and confirms that it is not the intention to include records for mechanical devices within the exclusive monopoly granted by the copyright. The language is as follows:
Provided, That the words to “arrange or adapt it if it be a musical work" shall not, for the purpose of this act, be deemed to include perforated rolls used for playing musical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records are made.
December 16.-Senator Reed Smoot, successor to Senator Kittredge as chairman of the Senate Committee on Patents, introduced a copyright bill, S. 2499, substantially similar to the Currier bill.
December 18.-The Kittredge bill, S. 8190, which failed of passage in the Fifty-ninth Congress, was reintroduced in the Senate as S. 2900. This is the bill which upsets existing law and brings all mechaı ical players under the domain of copyright. By reason of contracts made in advance, its passage would result in a complete monopoly of the player industries.
1908, January 6.- Representative Barchfeld introduced a bill, H. R. 11794, which is identical with the Kittredge bill, S. 2900.
February 24.–The Supreme Court of the United States handed down its decision in the White-Smith-Apollo Case. It unanimously upheld the decision of the lower courts that reproduction by means of perforated music rolls is not a violation of composer's copyright. The court holds that it was clearly not the intention of the copyright act to include records for mechanical players, and reviews the decisions in the United States and England in which it has been uniformly held that such reproductions to the ear are not within the protection granted by copyright. It specifically calls attention to the action of the Berne convention of 1886, which exempts mechanical players and emphasizes the fact that it could not have been the intention of Congress, when it passed the copyright act of 1891, to grant to foreign citizens and composers advantages in our country which were denied to American citizens abroad. In defining a copy the court said:
Meaning of a copy.-What is meant by a copy? We have already referred to the common understanding of it as a reproduction or duplication of a thing. A definition was given by Bailey J. in West against Francis, 5 B. & A. 743, quoted with approval in Boosey against Wright. He said: “A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original."
Various definitions have been given by the experts called in the case. The one which most commends itself to our judgment is perhaps as clear as can be made, and defines a copy of a musical composition to be “a written or printed record of it in intelligible notation." It may be true that in a broad sense a mechanical instrument which reproduces 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. In no sense can musical sounds which reach us through the sense of hearing be said to be copies