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Representative CURRIER. Do you think a compulsory license would be constitutional? I have great respect for your opinion.
Mr. STEUART. Well, sir, that is a very large subject. I believe that the Supreme Court has intimated and from the Supreme Court we must take our opinions on that subject that such a provision would be constitutional. I think in the case of Wheaton against Peters, and later in the case of the United States Dictionary Company against Merriam (208 U. S., 264), the Supreme Court said in that case, in speaking of the right of Congress in reference to the copyright statute, "Of course Congress could attach what conditions it saw fit to its grant." It would appear from this language and the language read in your hearing from the case of Wheaton against Peters that the Supreme Court had that idea.
Senator BRANDEGEE. What was that reference to 208 United States, 264?
Mr. STEUART. The case of the United States Dictionary Company against Merriam, decided last year. If that language expresses the meaning of the Supreme Court, I think it probable the Supreme Court would follow in that line and sustain the compulsory license. It is possible that they would sustain compulsory license for another reason. The suggestion has been made that the only power given to Congress is the power to grant exclusive estate. It may be said, however, that if Congress does give that sort of estate that exclusiveness would not be interfered with by a compulsory license.
Representative CURRIER. Which would be exclusive also?
Mr. STEUART. For the reason that the estate would be exclusive. The only limitation which Congress imposes by granting this compulsory license is a limitation on the remedy. In the case of an absolutely exclusive right, it is right of injunction. In that case Congress did not destroy the right, but merely limited the remedy. In this case, by limiting the compulsory license, what the committee would do would be to deprive the owner under certain circumstances of the right to an injunction. The right would be there, because otherwise he could not recover at all. He would have the right to sue an infringer, and his right to recover would be limited to the license fee. Just as in patent cases to-day, where a license fee has been established by long usage, and a suit is brought for infringment, the remedy is limited by the man's own established license fee. So in this case it is probable that the courts would hold that the limitation of the right was not a deprivation of the exclusive right or cutting down of it, but a mere limitation of the remedy.
Representative CURRIER. Thank you, Mr. Steuart.
Mr. STEUART. Now, so far as concerns the constitutional power of Congress to legislate on this subject of music rolls. We have heard what the Supreme Court has told us on this subject. It has been very instructive, but for my part I would say that it was very disappointing. I had expected that the court would hold that these music rolls are copies. To my mind they are. The court has not said whether these music rolls are writings within the meaning of the Constitution. I understand Mr. Walker to believe that if they are writings they are copies.
Mr. WALKER. Yes; if they are writings they are copies, and if they are copies they are writings. It works both ways.
Mr. STEUART. The Supreme Court has said that they are not copies, but it does not follow by any means that they are not writings. I think it is only necessary to read the language of the Supreme Court in the Sarony case, in which they analyze the word "writing" in a careful way and decided that a photograph was a writing. I can not imagine that a photograph produced mechanically by a light falling upon paper is any more a writing than a hole impressed in a piece of paper, if expressing thought, because writing, after all, is but a mode of notation by which thought is recorded.
Mr. O'CONNELL. It conveys the thought itself.
The CHAIRMAN. Then you would go further than Congress and say that models and sculptures would also come within that category? Mr. STEUART. Those are all within the terms of the present actsculptures, etc. If, therefore, we may believe from the Sarony case that the Supreme Court would hold that the perforated rolls or these phonograph disks were writings, then the terms of the Kittredge Act, as it is now drawn (or the Barchfeld Act, as it is now drawn), for the purpose of protecting this class of production would, I take it, be constitutional. If, therefore, these clauses are constitutional, they should stand as they are drawn, unless the committee saw fit to modify them, subject to such limitation by way of compulsory license as you may see fit to impose.
Now, in reference to the constitutionality of the division of legislation by Congress-stop me, Mr. Chairman, whenever you pleaseThe CHAIRMAN. Your time is up now, Mr. Steuart. Representative CURRIER. I am very sorry.
The CHAIRMAN. So am I.
STATEMENT OF MR. ROBERT UNDERWOOD JOHNSON, SECRETARY OF THE AMERICAN (AUTHORS') COPYRIGHT LEAGUE.
The CHAIRMAN. You have five minutes, Mr. Johnson.
Mr. JOHNSON. Mr. Chairman and gentlemen of the committee, I came under the instruction of counsel of the American Copyright League to say that we regard this question as perhaps the most important question connected with any copyright measure. We know that the question is a conferring of a right; that it is to establishit may be for many years, I can not think permanently, if it should be established wrong (because nothing is settled until it is settled right)—a principle which it seems to us is the fundamental principle of copyright. This must be settled one way or the other. As the briefest way to get my opinions before you-not only my opinions but the unanimous opinions of those whom I represent, the American Copyright League-I beg to read to you an editorial article of which I am the author, from the Century Magazine, which puts the thing in a very terse way, so far as I am concerned.
(The article is as follows:)
MUSIC COMPOSERS AND COPYRIGHT.
[The Century Magazine (editorial).]
The circumstances of the passage of the copyright act of March 3, 1891, in the hurry and confusion of the closing days of the session, after a campaign of twelve weeks, during which an originally consistent bill was often amended,
made it certain that after the lapse of a few years it would be necessary to prepare a new and more comprehensive statute. Not only has the operation of what might be called a piece of pioneer legislation demonstrated the need of readjustment in certain particulars, but unexpected scientific inventions have made it necessary that unless the United States is to return to the shame of tolerating the appropriation of intellectual property from which it was then rescued, a measure of security shall be given to composers of music equal to that vouchsafed to writers and artists. The bill as introduced (in the Senate by Mr. Kittredge) is the result of the most laborious comparison of views by so-called "parties in interest" and in the main is regarded as a workable, progressive, and liberal measure, which will advance the interests of the public by giving to creative effort a completer safeguard than the present law.
The chief ethical consideration in the bill attaches to the security which is provided for the work of a musical composer. This is not a new principle, but rather a logical and unescapable application of the principle of the present law, which gave music what in 1891 was considered-and indeed then was-complete protection. At that time there was no such thing as mechanical reproduction of music, or equity and analogy would have demanded, as they now do, that the composer should have the "exclusive" control authorized by the Constitution. Therefore, in spite of the fact that the act of 1891 abolished the unpaid use of literary or artistic work and, for that matter, of music (by the methods of publication then known), there has since grown up a custom of using, under the new conditions, the work of musical composers without recompense, and often with mutilation of the text. This custom probably began without consideration and without desire or intent to work a hardship. But, with the expansion of this new and interesting business in its various forms, the custom has taken the proportions of an unendurable grievance and injustice.
A compromise has been suggested on the part of the new venders of music, which, from the point of view of those familiar with copyright values and copyright ethics, is not so much a compromise as, in essence, an attack upon the very principle of property, namely, a proviso that a composer must be compelled by law to sell his rights to all who may appear and pay the same price. This is as though copyright should be denied to Mr. Clemens unless he should agree to sell to every other publisher the rights which he has disposed of to Messrs. Harper & Bros. This would be the principle of governmental paternalism reduced to an absurdity. The right to choose your agent to sell is of the essence of ownership, and to make the Government virtually an indorser of the contract of any irresponsible, and possibly dishonest, dealer, by compelling the composer to sell to Tom, Dick, and Harry, would be a most unfortunate perversion of the copyright statute. Indeed, it is probable that such a perversion of justice would be declared unconstitutional by the Supreme Court as an impairment of "exclusive" rights.
It is the manifest interest of those who deal with the products of any artand not least the art of music-that the right of property in this product should be established beyond peradventure. The act as presented (in the Senate by Mr. Kittredge) will give to those who deal in music, by means of the new inventions instead of their present uncertain musical holdings, a valuable and negotiable security based on the elemental right of property. The experience of all other trades covered by the present copyright act proves the advantage of this security from the point of view of stability of trade and commercial fair dealing.
Attempts to "kill the bill" and continue the present system, unless the above-referred-to proviso shall be adopted, would arouse the moral sentiment of the community, as it was aroused when Lowell made his famous appeal for a book "honestly come by." We can hardly believe that any class of business men in this particular epoch would wish to take such an unfortunate and reactionary course.
THE COPYRIGHT BILLS AND THE AUTHORS' LEAGUE.
[Minute of the American (Authors') Copyright League on the proposed bills.]
The council of the American Copyright League, on behalf of American authors, tenders cordial appreciation to the Senate and House Committees on Patents in connection with the preparation of the copyright measure now before Congress for the patient and courteous attention given to those interested in
the protection of intellectual property, for the broad and comprehensive treatment of the subject, and for the carefulness and promptitude with which they have completed their work.
SECURITY TO COMPOSERS.
The league maintains that a musical composer is entitled to the same exclusive right as any other author to the benefit of his writings, and for this reason it favors the explicit provision in the Kittredge bill as preferable to the language of the Smoot bill.
DRAMATIC RIGHTS PERFECTLY SECURED IN PRESENT LAW.
The Kittredge bill also preserves to dramatic authors and extends to other authors the clause in the existing law which punishes willful infringers by imprisonment. This clause has been so effective a deterrent that there has been almost no occasion for the enforcement of this form of punishment, and it has effectively protected dramatic authors against unscrupulous and irresponsible managers of "fly-by-night" companies. The league holds that the full protection given to dramatic authors under existing law should in this and in every other respect be continued, as fully effective and as wholly satisfactory to everybody except willful violators of the law. For these and other important reasons the league favors the Kittredge form of the measure and prays that the House may adopt that form.
THE TERM OF COPYRIGHT.
The league expresses its gratification at the extension of copyright proposed in both the Kittredge and Smoot bills to the term of life and thirty years. But points out that in the case of a work published by an author within twelve years before his death such a term by itself would shorten the existing term of forty-two years, and also that the phraseology of the bills does not provide for periodicals and composite works generally and other works of which the author is not a stated individual person whose death will be matter of determinative record. The league therefore earnestly appeals to the committees to assure the protection of authors and to cover the works designated by alternative terms of "life and thirty years or of fifty years, whichever shall be the longer," joint copyrights to continue from the death of the last surviving author; and by providing that on periodicals and other composite or impersonal works the copyright proprietor shall have copyright for the fifty years' term. It suggests also that photographs should not be discriminated against in respect to term.
MANUFACTURING PROVISION FOR BOOKS IN FOREIGN LANGUAGES USELESS TO PRINTING TRADES.
The league has accepted the “manufacturing clause," and particularly the affidavit proviso, only in a spirit of compromise between conflicting interests, and it points out that the extension of this clause proposed in both bills may seriously jeopardize our international copyright relations. It suggests, therefore, the exception from this clause of the original text of a work of foreign origin in a language other than English, which should prevent retaliatory action on the part of other nations, already proposed in the German Reichstag, and would in no wise lessen the consideration given to American typographers, as is shown by the fact that less than a score of foreign texts have been copyrighted and manufactured in this country since the passage of the act of 1891, while the publishing of copyrighted foreign texts here would tend to increase the manufacture and publication in this country of copyrighted translations thereof.
ADEQUATE PENALTIES NECESSARY.
The league also points out the desirability of including in the measure the proviso for a minimum of $250 damages, which is a feature of existing and previous legislation, but which is not included in either Kittredge or Smoot bill, although both provide for a maximum somewhat below that in the existing law. Such a minimum is necessary for protection in the case of limited editions of
books and copies of works of art, chiefly as a deterrent to infringers and as a fair protection for those who must invoke expensive litigation to protect their rights.
AN APPEAL TO THE PATRIOTISM OF CONGRESS.
The league, in recording its approval of the proposed measure, in the Kittredge bill, with the amendments herewith suggested, believes that its enactment into law will place our country in a leading position among the nations in its protection of intellectual property, and it expresses the general desire of the authors alike of literary, dramatic, musical, and artistic works that the measure thus amended should receive immediate consideration in the two Houses of the Congress, so as to place the proposed law on the statute books in lieu of the present confusing and contradictory copyright laws within the present session. Voted unanimously February 7, 1907.
In addition to what I have read, I wish to say that with regard to the matter of compulsory license, we consider it absolutely impracticable. We also consider that the cry of the gentlemen who fear that their business is going to be broken up is altogether without foundation and is similar to the cry raised in 1891 by those who were engaged in unpaid reprinting. That business was not broken up.
STATEMENT OF MR. LIGON JOHNSON.
Mr. LIGON JOHNSON. Mr. Chairman and gentlemen of the committee, so far as we are concerned and so far as concerns the object we have sought to obtain and the protection we claim for the dramatic author, we object to the Eolian Company being made the scapegoat. We are not in any way interested in any contract with the Eolian Company, nor does it affect us or our products, either dramatical or otherwise.
As to the copies of the " Merry Widow," which have been produced by Mr. Cromelin, I want to say that the illustration offered, so far as concerns the sale of the "Merry Widow " films, involved the question whether these machines were so protected as would permit the mechanical reproduction of a play. One of the manufacturers was present to-day and admitted it. As to the reproduction of a play there is only one firm-one trust-in America-and only one interest, one phase, of that trust that seeks to reproduce that play. The gentlemen present even repudiate that. They do not even claim that it is proper.
There is one other proposition. Mr. Pettit made the suggestion that because the music people did not come up at once when the phonograph came about, but allowed them to invest large sums of money in the phonographic plants, they should, by reason of a failure on their part to protest, be now denied protection in the premises. We come here now immediately on the production of a machine that reproduces our plays and ask this committee and Congress to give us protection in the premises, and they can not see that we have vested interests, though they say that they should not be molested. As to the 35,000 men whom they say they are employing, I will merely state that we have people in excess of 50,000 whose interests are jeoparded.
The CHAIRMAN. You do not mean to say that the reproduction will do away with all the theaters in the country?
Mr. LIGON JOHNSON. It will result in closing nearly all the theaters of the country. Only the very strong attractions can live. And