53 and Vict., c. 45. 53 and Vict., c. 67. 54 54 The expression "chief officer of police "— (a) With respect to the city of London, means the commissioner of city police. (b) Elsewhere in England has the same meaning as in the police act, 1890. (c) In Scotland has the same meaning as in the police (Scotland) act, 1890. (d) In the police district of Dublin metropolis means either of the commissioners of police for the said district. (e) Elsewhere in Ireland means the district inspector of the royal Irish constabulary. The expression "court of summary jurisdiction" in Scotland means the sheriff or any magistrate of any royal, parliamentary, or police burgh officiating under the provisions of any local or general police act. Short title. 4. This act may be cited as the musical copyright act, 1906. Mr. CROMELIN. Now, gentlemen of the committee, I have told you frequently in the past, and I now reassert that this whole mechanical copyright agitation is a most ingenious attempt to monopolize the musical creations of mankind when reproduced mechanically, and that this was to be brought about by reason of contracts made in advance and international arrangements existing between certain publishers and manufacturers. Contracts have been made covering nearly every European country, and the persons most in interest have hoped that by the passage of the Kittredge bill in the United States they would secure most extraordinary rights, rights which the legislatures in every country have refused to give them, notwithstanding their agitation for the past nine years. Now what about the relations of the Eolian Company to the attempts to get through the bill in the British Parliament in 1906? Heretofore the relation was not clearly shown, although we all knew that the attempt had been made and that those behind the legislation failed in their purpose. I crossed to England on the Lucania last summer with Sir Herbert Marshall. Sir Herbert Marshall is the most prominent man in the music trade industry in Great Britain. He has been president of the Music Trades Association of Great Britain continuously since 1904. I was his guest at the twenty-first annual banquet of the association in London last June, and I have here and exhibit to your committee a souvenir edition of the Music Trade Association Record, to show you his relation to the music trade industry in Great Britain. Sir Herbert Marshall told me that the Eolian Company was back of the movement to get through a bill in Great Britain similar to the Kittredge-Barchfeld bill here, and that although his house had the exclusive representation in Great Britain for the Angelus Piano Player, which uses the rolls made by the Eolian Company, and that although it would have been to his interest to have the bill passed as its promoters intended, he told them, nevertheless, that the bill was so opposed to public policy that he would not stand for such a measure, and actively assisted in defeating it. On February 14 I wrote Sir Herbert Marshall as follows: Sir HERBERT MARSHALL, Regent Street, London, England. ROOM 1517, TRIBUNE BUILDING, DEAR SIR HERBERT: You probably are aware of the fact that bills are pending before the House of Representatives and the United States Senate the purpose of which is to bring all mechanical players under the domain of copyright. If I remember correctly, you gave me some information on the steamship Lucania last summer relative to the efforts which were made in England along this line, and the means used to defeat the same. In the United States it is a wellknown fact that certain companies have secured exclusive contracts in anticipation of successful litigation or new legislation by which the intention is to monopolize the player industries. The publishers who are back of the bills pending in Congress have sent a statement to every Member of Congress headed "Copyright situation in Europe and America," a copy of which I hand you herewith. The purpose of this is to ask you, if you care to do so, to kindly give me a statement in writing as to the situation in England. If I remember correctly, you stated that you were instrumental in defeating the efforts to bring the mechanical players within the pale of copyright in England. The publishers are making a great deal over the alleged fact that it was the National Phonograph Company (Edison) alone, through their counsel and director, Mr. Croydon Marks, M. P., who defeated the act in England. As there will be public hearings before the Joint Committee of the House and Senate Committee on Patents at an early date, I will appreciate exceedingly a prompt response from you, as your letter will be presented to the joint committee and undoubtedly have an important bearing upon the whole subject. Thanking you in advance and with best personal regards, and trusting this finds you in the best of health, Very truly, yours, PAUL H. CROMELIN, President. In response to this I received a letter which fully corroborates Mr. Croydon Mark's affidavit, and confirms that it was the Government, through the home secretary, Mr. Herbert Gladstone, which refused to proceed with the consideration of the bill unless a clause clearly exempting the mechanical reproducers was added. Sir Herbert indicated in his letter that he did not wish his name brought into the American fight, and as I did not feel authorized to use his letter without special permission, I cabled him as follows: MARSHALL, Duetto, London: MARCH 23, 1908. Should it be necessary have we authority present letter March 14 Patents Committee, Congress? Telegraph at once in care Colpho, New York. CROMELIN. In reply I received a cable from him, original of which I hand you, which reads: CROMELIN (care Colpho), New York: LONDON, March 24, 1908. MARSHALL. I therefore file with your committee Sir Herbert Marshall's letter, which reads: PAUL H. CROMELIN, Esq., New York. ANGELUS HALL, REGENT HOUSE, DEAR MR. CROMELIN: Kindly excuse my not answering your letter of the 14th ultimo earlier; the fact is, I had instructed my people to forward the copyright act; they appear to have omitted to do so. With reference to the musical copyright bill passed last year, you have my authority for saying that the National Phonograph Company and Mr. Croydon Marks, M. P., can not claim the credit for defeating the music publishers and others who wish to copyright either piano-player or phonograph records. Very strong representations were made through very influential sources to the home secretary, Mr. Herbert Gladstone. I do not wish my name to be brought into this matter, but the attitude taken up by the home secretary was, that unless the music publishers or the promoters of the copyright act were willing to accept the clause which permitted pianoplayer music and phonograph or gramophone records to be excluded from the bill the Government would not proceed with it, so that you will understand that the Government made this condition, and it ought to have a great deal to do with the method of procedure in the American courts. Yours, faithfully, HERBERT MARSHALL. And now, gentlemen, as a fitting climax, permit me to unmask this friend of the poor composer, who takes up the cudgel in his behalf from far-away Weissensee bei Berlin, Germany, who charges Hon. George Croydon Marks with preventing the passage solely because of a selfish interest, of a paragraph in the British bill of 1906 similar to paragraph (e) of the Kittredge bill, and of course framed in the interest of the poor composer, who writes that he has "absolutely no interest except to see justice done where justice is deserving." I will introduce at this point a statement signed in London, July 27, 1907, by Frank Dorian, general manager for Europe for the Columbia Phonograph Company, and by me, and recently sworn to by both of us, by which you will observe that this friend of the poor composer and those associated with him would have profited enormously financially had they been able to put through the British bill as it was originally intended. That they had secured in anticipation of its passage exclusive contracts by which they would have had the exclusive right to manufacture in the form of talking machine sound records the music owned or controlled by 80 per cent of the music publishers of Great Britain. A. On Saturday, July 27, 1907, Louis Sterling, one of the directors of Sterling and Hunting (Limited), 14 Ramsell street, London, E. C., exclusive representative in Great Britain for the International Talking Machine Company of Berlin, Germany, in conversation with Frank Dorian, European general manager of the Columbia Phonograph Company General, and Paul H. Cromelin, vice-president of the same company, made the declaration that he had signed contracts with fully eighty per cent (80 per cent) of the music publishers of Great Britain whereby his firm was guaranteed the exclusive right of publishing in the form of talking-machine records the musical works owned and controlled by the publishers aforesaid in the event that a law should be enacted in Great Britain bringing such talking machine records within the purview of the copyright law. The conversation took place at the restaurant Frascatti, Oxford street, London, W. He further stated that the contract with the International Talking Machine Company by which the exclusive representation was accorded Sterling and Hunting (Limited) was made with F. M. Prescott, at that time managing director of the International Talking Machine Company. FRANK DORIAN. PAUL H. CROMELIN. Witness: M. DORIAN, JAMES VAN ALLEN SHIELDS. Sworn at 66 Oxford street, London, by the above named. CITY OF LONDON, Kingdom of England, 88: Be it known that on the 12th day of March, 1908, before me, Edwin Courtney Walker, of the city of London, notary public duly admitted and sworn, personally appeared Frank Dorian, to me known and known to me to be one of the parties named and described in the document hereunto annexed marked “A' and acknowledged his signature set at foot of the said document and being thereupon by me duly sworn did depose to be true the several matters and things mentioned and contained in the said document. In testimony whereof I have hereunto set my hand and seal of office at London the day and year aforesaid. Quod vide. [SEAL.] [Stamp.] E. COURTNEY WALKER, Notary Public. Frank Dorian, this 12th day of March, 1908. E. COURTNEY WALKER, A Notary Public in and for the City of 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 United States of America in London, England, do hereby make known and certify to all whom it may concern that Edwin Courtney Walker, who hath signed the annexed certificate, is a notary public, duly admitted and sworn and practicing in the city of London aforesaid, 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 hand and affixed my seal of office at London, aforesaid, this 13th day of March in the year of our Lord 1908. [SEAL.] RICHARD WESTACOTT, Vice and Deputy Consul-General. [Stamp.] Personally appeared before me Paul H. Cromelin, one of the parties to the statement contained on the opposite side of this sheet and to me personally known, who deposes and says that the signature is his genuine signature and that the statements made are true. In testimony whereof I hereunto set my hand and affix my official seal on this 28th day of March, A. D. 1908. [SEAL.] PAUL F. GROVE, Notary Public, District of Columbia. My commission expires May, 1909. Mr. CROMELIN. And thus it appears that this man Prescott, who claims that it was only the selfish interest of Mr. Croydon Marks, M. P., counsel for the National Phonograph Company (Limited), which prevented the passage of a paragraph in the British bill similar to paragraph E in the Kittredge bill, was one of the parties most interested in securing its passage and that his company and his British agents, Sterling and Hunting (Limited), would have, for all practical purposes, had it been passed, come into complete control of the talking-machine industry in Great Britain, while the Eolian crowd were similarly securing for themselves, as their portion of the spoils, a monopoly of the piano-player and the music-roll business. Passing from the situation in Great Britain, Prescott undertakes to advise you next of the conditions prevailing in France. He says: The court of appeals has decided that the mechanical reproduction of words comes within the French copyright law, and to-day, for the last two years, all talking-machine records of copyrighted pieces in France whether spoken or sung have been paying a royalty to the party owning or controlling the copyright. Prescott does not tell you that the court held that the use of copyrighted music was no infringement, nor does he tell you that there never has been any question as to the right to reproduce music in France by means of perforated rolls, music-box sheets, etc. He adds to his statement the following: This has not been a hardship on any of the manufacturers as they have all been able to obtain the rights to manufacture upon payment of the proper royalty to the copyright holders or controllers. In reply to this statement, I offer in evidence an original letter addressed to me by M. Dorian, assistant general manager for the Columbia Phonograph Company, in Europe, dated London, January 22, 1908, which is a summary of the experience of the Columbia Company in France. It is interesting to note that the litigation in France is still pending, an appeal having been taken to the court of cassation, which is the final court of appeal. Re. Vives. COLUMBIA PHONOGRAPH COMPANY, GEN'L, Mr. PAUL H. CROMELIN, Vice-President, New York. DEAR Mr. CROMELIN: Referring to yours of December 21 requesting me to furnish you a brief summary of this famous affair, am somewhat in doubt as to just what is wanted, but have prepared the following and hope it will answer the purpose. Lucien Vives, formerly a vocalist, but at the time a dealer in talking machines and supplies, conceived or had suggested to him the idea that talking machine records were liable to a tax as constituting an unlawful publication of copyright music. He approached a number of editors of music in Paris with a proposition to bring a test case and to carry the same through the French courts if they woud assign to him their rights for the past and a proportionate part of their future rights during the continuance of the contract. A number of these editors accepted and executed the contracts. Others refused, and still others elected to wait until he made his attempt. Vives, being a man of practically no capital, found it necessary to interest others with him in the speculation, and approached a number of firms and individuals with a view to securing the necessary cooperation and financial support. Among the first (Vives says the first) to be thus appealed to was the Columbia Phonograph Company. At that time Vives had already closed with about ten editors. His proposal was submited to the executive office and declined. He then made arrangements elsewhere and instituted a suit in the name of certain editors as plaintiffs, and against the Columbia Phonograph Company, the Gramophone Company, Pathe Freres, Bettini, and one or two other small manufacturers as defendants. The defendants, with the exception of the Gramophone Company and Bettini, united and employed counsel to defend them jointly. The Gramophone Company made a separate defense through their regular counsel, and Bettini made none at all. The case was heard before the civil tribunal of the Seine at Paris (circuit court) and resulted in a complete victory for the defendants on all points. Vives noted an appeal and the case went to the court of appeals of Paris. In the interval between the first trial and the argument of the appeal it was current rumor about Paris that when the appeal was decided it would be found that Vives had secured a sweeping victory; that he had secured the services of Maitre Poincarré, an eminent lawyer and ex-cabinet minister, and that the decision would be certain. It was reported that Vives himself had made a prediction of this kind. The case was called for hearing before the court of appeals and argued and submitted. During the argument the bias, in favor of Vives, on the part of some of the judges and notably the president of the court, was so pronounced as to excite comment. Wagers were offered on the streets and about the corridors of the court that the decision would be in favor of Vives. Some days before the decision of the court of appeals was handed down it was freely asserted that the decision was favorable to Vives. On the 1st day of February, 1905, the court of appeals announced its decision. It held that the judgment of the tribunal of the Seine was invalid. That the inscription on cylinders or disks of literary works with song or accompaniment of music belonging to the appellants, when such inscription has been followed by sale and publication, is an attack on the monopoly of commercial exploitation of the authors and their assigns. |