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as that term is generally understood and as we believe it was intended to be understood in the statutes under consideration.
Special composition an intellectual creation.--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. The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such conception may be, but has provided for the making and filing of a tangible thing agaiust the publication and duplication of which it is the purpose of the statute to protect the composer.
Also it may be noted in this connection that if the broad construction of publishing and copying contended for by the appellants is to be given to this statute it would seem equally applicable to the cylinder of a music box, with its mechanical arrangement for the reproduction of melodious sounds, or the record of a graphophone, or to the pipe organ operated by devices similar to those in use in the pianola. All these instruments were well known when these various copyright acts were passeil. ('an it be that it was the intention of Congress to permit them to be held as infringements and suppressed by injunctions?
The Supreme Court indicates that it does not believe Congress so intended by unanimously approving and affirming the decree of the circuit court of appeals.
Mr. CROMELIN. I hold in my hand a pamphlet which on its cover indicates that it has been“ Specially compiled for the edification and benefit of the Members of the Sixtieth Congress in behalf of a national issue of great importance by The Authors' and Composers' League of America,” Victor Herbert, president; John Philip Sousa, treasurer, and Reginald De Koven, honorary secretary. It is entitled “ The fair, the honest, the just cry on both sides. Give them a square deal. Some interesting exhibits shown for the first time. Disclosing a remarkable state of affairs.
" Exhibit I: An unsolicited letter of facts and justice from one of the foremost talking-machine men to Senator Smoot and others (including Representative Currier), in behalf of the author and composer, in answer to their minority bill in the Senate of the Fifty-ninth Congress in favor of the talking-machine trusts.
“ Exhibit II: The particular paragraph in that bill which this manufacturer-Mr. Prescott-answers.
“ Exhibit III: Representative Currier, father of the bill that purposes to defeat the just rights of the authors and composers of America, replies to Mr. Prescott.
Exhibit IV: Mr. Prescott's significant answer to Mr. Currier's won't be convinced’epistle.” Etc.
I wish it were possible in the half hour allotted to me to consider with you in detail this pamphlet and its worthy sequel, entitled “ Copyright situation in Europe and America,” also issued by this Authors and Composers' League of America and sent to every member of Congress for his edification and benefit.
In this pamphlet Mr. Prescott-F.M. Prescott—who, as he says, has been in the talking-machine business in this country and Europe for the past twelve or thirteen years, and who is, perhaps, as well posted in regard to the industry as any man on earth, deliberately and repeatedly misrepresents to you the conditions that exist in the various foreign countries as regards this question, and I doubt exceedingly if there is a single paragraph in all of his statement in which he adheres to the truth.
Let us consider for awhile these letters from this“ foremost talkingmachine man." Mr. Prescott. I shall not go into details for want of time, but direct your particular attention to the conclusion of his letter to Mr. Currier, which reads:
You may ask me what is my interest in favoring this cause, and I have simply to reply, “To see justice done where justice is deserving.” I am not in business in America or in Europe, and have absolutely no interest in the copyright bill whatsoever. Having, however, been closely identified with it in Europe and seeing the trend toward the protection to composers in many countries. I feel the composers should have equal protection in the United States, and as a private citizen, interested in my fellow-beings, I have simply attempted to say a good word for them.
Mr. Prescott first takes up the situation in Great Britain, and undertakes to prove to you gentlemen in a letter addressed to the late Senator Mallory that the British musical copyright act of 1906, which, as you will recall, contains an express provision clearly indicating that it is not the intention to include these mechanical reproducers under the protection granted the copyright proprietor-that this British bill of 1906 was brought about solely through the efforts of Croydon Marks, a member of Parliament. Had it not been for the "stont resistance” of Croydon Marks, M. P., says Prescott, a paragraph similar to paragraph E in the Kittredge. Barchfeld bill would have been retained in the British bill. And continuing, he says, “It now turns out that Mr. Croydon Marks has been for many years legal advisor and attorney of one of the largest talking machine companies in the world, and he was doubtless opposing the passage of this paragraph only in the interest of his client.
In a later letter to Mr. Currier, Mr. Prescott says:
Mr. Croydon Marks, who is also a director of the National Phonograph (ompany, Limited (Elison), told Mr. O'Connor that if that clause relating to records was not taken out of the bill he would oppose it, as did Mr. Caldwell, M. P., on the previous bills. As his opposition would have been sufficient to have prevented the bill coming to a vote, Mr. O'Connor agreed to that clause being stricken out. Except for the seltish interest of Mr. Marks, M. P., the bill would doubtless have passed as originally drawn up and presented by Mr. T. P. O'Connor, M. P.
Representative CURRIER. I have here an original affidavit of Mr. Croydon Marks, executed with all possible formalities, in which he says that he called the attention of Mr. O'Connor to that matter, and the other promoters of the bill. And he says:
That the promoters of the bill assured me that they had no desire whatever to extend the law to cover phonographic records and perforated music rolls, and went out of their way by expressly amending their bill so as to make it intentionally exclude from its scope perforated music 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 respectively are made."
And he says that he was told by the promoters of the bill that they never dreamed that it could have that interpretation, and that the minute their attention was called to it the promoters of the bill removed the possibility of such interpretation.
I want to call attention to the point as to how far this privilege has gone in contrast with the English law, in respect to what may be called drastic features. In the English law for the first offense the punishment can not exceed $25. For the second offense a fine or imprisonment not to exceed three months. The British Government
(the attention of the Home Secretary being called to it) moved to strike the imprisonment feature from the law.
Mr. CROMELIN. I hope that document will go in the record.
In the matter of the musical copyright act, 1906, of Great Britain.
Affidavit. I, George Croydon Marks, of 18 Southampton Buildings, Chancery lane, in the county of London, consulting engineer and member of Parliament, hereby make oath and say as follows:
1. That I am a member of Parliament for the Launceston or North East Division of Cornwall and I am a justice of the peace for the borough of Abery. stwyth.
2. That in the month of May, 1906, a private member's bill numbered officially 236 was introduced into the British House of Commons to amend “the law relating to musical copyright," and the copy of such bill is attached as an exhibit to this affidavit.
3. That such bill contained in clause 3 words defining that which was meant to be understood as “pirated music," but they were, in my opinion, too vaguely drawn by reason of the words “ or otherwise reproduced ” being included therein, seeing that such words were capable of being construed in such a manner as would entirely alter the existing law of musical copyright by bringing within the scope of the bill perforated music rolls and also phonographic records.
4. That being of opinion that such an alteration of the law should not be brought in by a private member's bill, upon wbich there would be practically no discussion, I gave notice of an amendment to leave out the words or other wise reproduced." A copy of such notice of amendment is attached hereto as an exhibit, on page 22 from the parliamentary orders of the day.
5. That the promoters of the bill assured me that they had no desire what. ever to extend the law to cover phonographic records and perforated music rolls, and went out of their way by expressly amending their bill so as to make it intentionally exclude from its scope perforated music 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 respectively are made.”
6. That the act as passed, entitled “An act to amend the law relating to musical copyright,” excludes phonographic records, but the words making the alteration were voluntarily introduced by the promoters of the bill, who assured me that they had unintentionally used the words “or otherwise reproduced,” so far as they could have been interpreted, to bring within the scope of the bill anything not in the form of sheet music or copies of music that were sold upon paper or like printed matter. A copy of such act is attached to this atlida vit.
7. That a number of other amendments were introduced by the secretary of state for the home department, when, upon the request of a large number of members, including myself, the Government was induced to give facilities for this private member's bill being passed into law, but no discussion of any importance took place in the House of Commons, owing to its being practically .an agreed or uncontentious measure, designed particularly to stop the sale on the streets of England of pirated printed copies of music which the ordinary law apparently had hitherto failed to stop.
G. CROYDON MARKS. Sworn to and subscribed at 53-54 Chancery Lane, in the county of London, this 4th day of February, 1908, before me[Notarial seal.]
J. PHILLIPS CRAWLEY,
Notary Public, London. (Stamp.) Consulate-general of the United States of America for Great Britain and
Ireland at London. I, Richard Westacott, vice and deputy consul-general of the l'nited States of America at London, England, do hereby make known and certify to all whom
it may concern that Joseph Phillips Crawley, who hath signed the annexed certificate, is a notary public, duly admitted and sworn and practicing in the city of London, afores ud, and that to, all acts by him so done full faith and credit are and ought to be given in judicature and thereout.
In testimony whereof I have hereunto set my haud and affixed my seal of office at London, a foresaid, this fifth day of February, in the year of our Lord one thousand nine hundred and eight. (SEAL.]
Vice and Deputy Consul-General. [Stamp.)
A BILL To amend the law relating to musical copyright. A. D. 1906. Be it enacted by the King's most Ercellent Jajesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows: Penalty for 1. Every person who sells, exposes, offers, or has in his posbeing in session
Possession for sale any pirated music shall (unless he proves that he rated music. acted innocently) be guilty of an offense punishable on summary
conviction in manner provided by the law in force in that part of the British Islands where the offense is committed, and shall be liable to imprisonment with or without hard labor for a term not exceeding one month or to a fine not exceeding five pounds, and on a second or subsequent conviction to imprisonment with or without hard labor for a term not exceeding two months or to a fine not exceeding ten pounds. Any constable may take into custody without warrant any person who sells, exposes, offers,
or has in his possession for sale any pirated music. Right of en- 2. Any constable authorized by an order of a court of sumtry by police for execution mary jurisdiction made under section one of the musical (sum
mary proceedings) copyright act, 1902, to seize pirated copies of any musical work, may, between the hours of six of the clock in the morning and nine of the clock in the evening, enter any house or place named in such order, and, if necessary, use force for making such entry, whether by breaking open doors or
otherwise. Definition. 3. In this act the expression “pirated music ” means any
musical work written, printed or otherwise reproduced without the consent lawfully given by the owner of the copyright in such
musical work. Short title 4. This act may be cited as the pirated music act, 1906, and and extent.
shall extend to the British Islands.
In committee on musical copyright bill:
Mr. ('roydon Marks: Clause 3, page 2, line 2, leave out otherwise reproduced."
A. D. 1906.
AN ACT To amend the law relating to musical copyright. (4th August,
Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the au
thority of the same, as follous: Penalty for 1. (1) Every person who prints, reproduces, or sells, or ex
in session or pi. poses, offers, or has in his possession for sale, any pirated copies rated music. of any musical work, or has in his possession any plates for the
purpose of printing or reproducing pirated copies of any musical work, shall (unless he proves that he acted innocently) be guilty of an offense punishable on summary conviction, and shall be liable to a fine not exceeding five pounds, and on a second or subsequent conviction to imprisonment with or without hard Jabor
for a tèrm not exceeding two months or to a fine not exceeding ten pounds: Provided, That a person convicted of an offense under this act who has not previously been convicted of such an offense, and who proves that the copies of the musical work in respect of which the offense was committed had printed on the title page thereof a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty under this act unless it is proved that the copies were to his knowledge pirated copies.
(2) Any constable may take into custody without warrant any person who in any street or public place sells or exposes, offers, or has in his possession for sale any pirated copies of any such musical work as may be specified in any general written authority addressed to the chief officer of police, and signed by the appa rent owner of the copyright in such work or his agent thereto authorized in writing, requesting the arrest, at the risk of such owner, of all persons found committing offenses under this section in respect to such work, or who offers for sale any pirated copies of any such specified musical work by personal canvass, or by personally delivering advertisements or circulars.
(3) A copy of every written authority addressed to a chief officer of police under this section shall be open to inspection at all reasonable hours by any person without payment of any fee, and any person may take copies of or make extracts from any such authority.
(+) Any person aggrieved by a summary conviction under this 38 and section may in England or Ireland appeal to a court of quarter Vict., c. 62. sessions, and in Scotland under and in terms of the summary prosecutions appeals (Scotland) act, 1875.
2. (1) If a court of summary jurisdiction is satisfied by infor- Right of enmation on oath that there is reasonable ground for suspecting try by police that an offense against this act is being committed on any prem- of act:
execution ises, the court may grant a search warrant authorizing the constable named therein to enter the premises between the hours of six of the clock in the morning and nine of the clock in the evening, and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and to seize any copies of any musical work or any plates in respect of which he has reasonable ground for suspecting that an offense against this act is being committed.
(2) All copies of any musical work and plates seized under this section shall be brought before a court of summary jurisdiction, and if proved to be pirated copies or plates intended to be used for the printing or reproduction of pirated copies shall be forfeited and destroyed or otherwise dealt with as the court think fit.
3. In this act
The expression “pirated copies” means any copies of any Definitions. musical work written, printed, or otherwise reproduced without the consent lawfully given by the owner of the copyright in sucb .musical work.
The expression “musical work” means a musical work in which there is a subsisting copyright, and which has been registered in accordance with the provisions of the copyright act, 1842, or of the international copyright act, 1814, which registration may be effected notwithstanding anything in the international copyright act, 1886. The expression plates” includes any stereotype or other
7 and 8 Vict., plates, stones, matrices, transfers, or negatives used or intended c. 12; 49 and to be used for printing or reproducing copies of any musical 50 Vict., c. 33. work : Provided, That the expressions “pirated copies" and * plates" shall not, for the purposes of this act, be deemed to include perforated music 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, respectively, are made.