If all these things be true, and they are true beyond any peradventure of a doubt, where is the impossibility of sending the sketch which the artist uses from Europe to America, and why is it not just as difficult to send the sketch from France to Germany as it would be to send it from France to America, disregarding, of course, the immaterial distinction of a few miles of distance? In other words, the argument used against the elimination of this particular part of the manufacturing clause is an argument which looks plausible to the uninitiated, but it becomes absurd the moment any experience or acquaintance with the subject is brought to bear upon its consideration.

It becomes somewhat pertinent also to remark that billions of our postal cards with our own domestic color schemes are largely manufactured abroad. Neither must it be forgotten that the protection of American workingmen is involved, nor that the men themselves-that is, our employees are beneficially affected by the change which we are contending for.

I trust that the conditions which I have advanced will receive serious attention on the part of your committee, and with an expression of gratitude for the consideration which I ask, permit me to say that I am

Very respectfully, yours,

C. H. CANDLEY, President.

Kindly make this letter part of the printed record.

MARCH 30, 1908.

Hon. EUGENE W. LEAKE,

Member of the House Committee on Patents. DEAR SIR: During the hearings before the Joint Committee on Patents of the Senate and House on Saturday last, you asked several of the gentlemen who were addressing the committee to tell you why, if Congress included in the copyright bill a provision recognizing the mechanical reproduction of musical compositions as an infringement of the copyright for such musical productions, Congress should be asked to couple with such a clause a provision for the granting of universal royalties to all parties who might desire to mechanically reproduce the musical composition. Some of the gentlemen thus questioned by you gave partial and, to my mind, very incomplete and unsatisfactory reasons for this requirement, and others (doubtless because of the shortness of time at their disposal) failed to answer the question at all.

It appears to me that the question is a very pertinent one and that, as a Member of Congress delegated to pass laws for the best interests of all the people, you were entitled to have received a frank and full answer to your question. The fact that you were not fully and clearly answered and the further fact that I believe I may be able to throw some light upon the subject are my excuses for intruding upon your time with the present communication. I am one of those who believe that such an act, if passed, would be unconstitutional, but it is not my purpose at this time to discuss that question, and what I say hereafter will be based on the idea that you assumed the constitutionality of the act in asking your question.

There can be no question that in order to be within the Constitution every act granting copyright or patent protection to authors or inventors must have for its object "the advancement of science and the useful arts." A study of the copyright and patent laws now on the statute books will make it perfectly clear that such laws are based upon the proposition that in consideration of some benefit moving to the public from the author or inventor the people grant to the author or inventor certain specified monopolies. Thus, the law in relation to patents requires that before the exclusive right to make, vend, and use a given invention shall be accorded to the inventor he shall file an application in the Patent Office describing his invention in such full, clear, concise, and exact terms as will enable one skilled in the art to make, construct, compound, or use the invention for which patent is sought. The manifest object of this requirement is that after the expiration of the seventeen-year monopoly granted by the patent the public shall be in full and complete possession of the invention in such form that all those skilled in that art may utilize it. If the inventor fails to do this, if perchance he obtains a patent and it can be made to appear that he has purposely concealed or withheld information in regard to some essential feature of his invention which the public was entitled to have, his patent will be void for this reason.

Now, let us suppose that the inventors of the country should come forward and ask that a law shall be passed granting them something in addition to the present seventeen-year monopoly of the patented invention. For example, suppose the inventor should ask that under certain conditions there should be granted to him an extension of five years after his original monopoly of seventeen years has expired. The public is already in possession of the full and complete disclosure of the invention set forth in the patent specification, and on their part all the conditions have been complied with which entitle them to the use of the invention. Manifestly, if the public is asked to grant still further monopolistic rights to the inventor, there can be nothing unjust or unfair, when these additional rights are asked for, that, if the same are granted, they should be granted under such conditions as would take into consideration the interests of the people or the public at large, and there could be no injustice in the public saying, through their representatives in Congress, “We will grant you this further right which you have never heretofore enjoyed under the law, but on terms more liberal to the public than were secured them for the first seventeen years of your monopoly. We, the public, believe that the advancement of science and the useful arts would be best subserved by granting you this additional protection, provided there is reserved to the public at large more liberal rights than they had during the first seventeen years of your monopoly, and we therefore grant you the extension of five years, coupled with the provision, however, that you shall grant a license under reasonable royalty to any person who wishes to make, use, or vend your patented invention." Manifestly this is an additional favor granted to the inventor, coupled with more liberal reservations in favor of the public, and the inventor would certainly be in no position to object to this additional protection which is granted him without any further consideration moving from him to the people.

Now, under the present copyright laws it has been held by the Supreme Court that the author shall have for a certain limited time the monopoly of the right to make copies of his writings, and it has likewise been held that the mechanical reproduction of the music or the thought expressed by the written characters is not an infringement of this monopoly granted by the law to the author. The composers now come forward and ask the public, through their representatives, to grant them an extension of the monopoly which they now possess; ask that that monopoly be expanded so as to include the mechanical reproduction of the music or the thoughts represented by the written characters. Assuming that Congress has authority under the Constitution to grant this at all, and assuming that Congress believes that such a measure would make for the advancement of science and the useful arts, is it not perfectly proper that, in granting this extension of the monopoly heretofore granted, they should reserve to the public the right to reproduce on mechanical instruments the musical conception of the author by any member of the public who is willing to pay a certain stipulated royalty to the composer? I think it is. Such an act offers an additional incentive to the composer. The author, in return for the exclusive monopoly granted him for a limited period to publish copies of his composition, puts the public, through such published copies, in possession of his composition, and by paying a stipulated price for such copies the public gets the use of the composition, and the courts have held that they have also acquired the clear right to the mechanical reproduction of a musical composition. The people are now asked to part with this right, and it is manifestly clearly within the rights of the people to say to the composer, "We will grant you the exclusive right to collect royalties for this mechanical reproduction of your composition, but we will reserve to the entire public the right to this mechanical reproduction upon the payment to you of the stipulated royalty, believing that thereby we will contribute to the advancement of science and the useful arts in a way best calculated to promote the interests of all the people."

It should be borne in mind that a patent or a copyright is granted to the inventor or author under the law because, as the moving reason for the grant, it is believed that to do so will advance science and the useful arts and therefore will be in the interests of all the people. Otherwise no patent or copyright would be granted at all. Now, manifestly if Congress in its wisdom believes that the interests of all the people would be best served by placing certain limitations upon the extension of the copyright monopoly of the character under consideration, there is every reason why such restrictions or limitations should be placed thereon.

Now, the disclosures which appeared in the Smith-White v. Apollo case and in the contractual relations between the Aeolian Company and the music pub

lishers have shown beyond question that it is possible, unless restrictions are placed upon this extension of the copyright monopoly, that the same may be used as an instrument for the advancement, not of science and the useful arts in the interests of all the people, but purely for the advancement of the financial monopolistic interests of a certain selfish class, and it would appear, therefore, to be proper for Congress, if it decides to grant the extension of the copyright monopoly at all, to surround it with such safeguards as will render a scheme like the Aeolian scheme impossible of consummation.

It is proper that I should say to you that I was present at the discussion before the committee as representative of a company which is fundamentally opposed to the extension of the copyright monopoly contemplated. Nevertheless, I was impressed by the fact that you, as a representative of your constituents, were asking questions honestly and intelligently calculated to elicit information for your guidance in passing upon the subject, and it is in the belief that you were thus honestly soliciting information that I have presumed to intrude upon your time with the foregoing discussion.

Very respectfully,

S. T. CAMERON, Counsel for the American Graphophone Co.

LAW OFFICES OF EDMOND E. WISE.

New York, March 31, 1908.

DEAR SIR: In accordance with the request of the committee I herewith send you amendments to the proposed bill, which I have tried to draw so as to protect the proprietor of a copyright from the unlawful reproduction or importation of the copyrighted work, and at the same time protect the vender of a book duly published from the danger of incurring the severe penalties imposed upon a pirate.

The amendment is as follows:

"No sale or transfer of or contract concerning a copyrighted work shall be deemed an infringement of copyright unless the person or persons making such sale, transfer, or contract had notice that the subject-matter thereof was unlawfully published, reproduced, or imported.”

I would suggest that this amendment, if adopted by the committee, should be inserted as section 2 of the act or immediately after the section which imposes penalties for an infringement.

The second amendment to the proposed bill, which I suggested in the remarks that I made to the committee, is intended to guard against the extraor dinary view expressed by some judges that the owner of a copyright is by virtue of the copyright monopoly empowered to enter into combinations or agreements concerning the copyrighted work which would be unlawful if covering uncopyrighted articles. This view was expressed by Chief Judge Parker, of the New York court of appeals, in Straus against American Publishers' Association, reported 177 New York, 473. Although I do not believe that the United States Supreme Court would sanction such a view, the question has never been presented to nor decided by that court. To guard against other courts adopting such an interpretation, however, I suggest the following amendment, which would perhaps be best placed at the end of the act as section 45: "That nothing contained in this act shall be construed to authorize or empower the proprietor of a copyright to enter into contracts, combinations, or arrangements concerning the manufacture, production, use, or sale of the copyrighted work or works which would be unlawful if such work or works were not copyrighted."

I would like to call to your attention that section 2 of your bill may lead to serious complications, as it may enable the author or publisher to claim protection for his work before he has completed all the requirements necessary to secure copyright, either under the copyright law or under the common law. In many of the States the rule has been followed that application for copyright is an abandonment of the common-law rights; in other States, notably New York, the courts have held that the deposit of the books in accordance with the provision of the present act is a common-law publication. In that State, therefore, under the provisions of the proposed bill the common-law rights would not be surrendered until the deposit of the work in the Library of Congress, while the author or publisher would nevertheless have all the protection of copyright legislation, a condition which is directly contrary to the often

expressed view that in order to secure the statutory right of exclusive copy there must be an abandonment of the common-law right of restricted publication. I would respectfully suggest, therefore, that section 2 either be wholly eliminated or else that there be added thereto the following proviso:

"Provided, That application for copyright shall be deemed an abandonment of the author's literary property at common law."

I have submitted these amendments to Mr. Jenner, both to secure an expression of his personal views and that of the committee of the bar association of the city of New York, of which he is a member, and as you will notice from his letter to me of even date, a copy of which I inclose, he approves of the foregoing suggestions, but as yet has been unable to obtain the views of his associates on the committee.

I have sent a copy of this letter to Mr. Currier.

Thanking you and your committee for the courteous treatment that you accorded to me, I am,

DEAR MR. WISE: It seems to me that your proposed amendments are desirable. It leaves responsibility with the person making the infringing thing and extends responsibility to others only if they have notice. This is right and is substantially in line with the existing law.

Section 2 is, in my humble opinion, wholly unnecessary and as such should be omitted. It is declaratory of the common law as applied in equity, of which an illustration is in Woolsey v. Judd in 4th Duer. There are exceptions to the rule, as where publication of an unpublished work, as of a letter, may be made by the receiver of it for his own protection. The statute is rigid; the common law is flexible and is to be preferred. Whether either of your proposed amendments are to be added to a section or should be inserted independently, the former as a substitute for section 2 and the latter at the end of the act or immediately following section 44, seems to be immaterial, but I should think your idea to insert the first of the amendments in the place of section 2, and the second immediately following section 44 is a good one. I will send copies of your letter to my associates on the committee and try to obtain an expression of their views if a meeting can not be held on short notice.

Yours, truly,

WM. A. JENNER.

BALTIMORE, MD., April 1, 1908.

Hon. REED SMOOT,

United States Senate, Washington, D. C.

DEAR SIR: I did not have time when presenting my argument to the committee on Saturday last to ask your attention to a subject which I think of very great importance in connection with the copyright bill. I beg leave to lay it

before you in this form in order that you may deal with it with the least expenditure of time.

In the English cases, Millar against Taylor and Donaldson against Becket, reported in 4 Burrows, 2308, it was decided by the court of King's Bench and by the assembled judges of law and chancery who were invited by the House of Lords to give their opinion upon certain legal questions in the latter of the two above-mentioned cases, that the intellectual productions of authors were regarded as property at common law and were entitled to be protected and had been protected by the courts, prior to the statute of Anne passed in 1709, as any other class of property was protected.

Not satisfied with this situation, the owners of copyright property secured the passage of the statute of Anne in 1709, and in the case of Donaldson against Becket the meaning of this statute was construed by the House of Lords and it was decided that it was a statute in derogation of the common law, a substi

tute for the former basis of property, and that subsequent to its passage all copyright property must find its foundation in that statute.

Prior to the adoption of the Declaration of Independence there had been no copyright legislation in the colonies, although there had been a large amount of publishing carried on here. The question of copyright does not appear in the legal literature of this country prior to that time, and we have no record as to how the lawyers of the period felt about it, except that of course it is to be assumed that they were entirely familiar with the existing condition of the law in England.

In 1783 the Colonial Congress recommended to the States to adopt copyright laws, and a large number of the States did so; several of them specifically reserving common-law rights. In 1789 copyright is specifically mentioned in the Constitution, and in 1790 the first copyright statute was passed, and a later one in 1802.

The courts of the United States have uniformly from the earliest case of Wheaton v. Peters in 8th Peters (1834), 591 held that the Constitution and Statutes of the United States were the sole source of copyright property and that all of the rights of copyright owners must be found in the Constitution and the acts of Congress. This line of decisions is unbroken except in one case, in Walker . The Globe Newspaper Co. (140 F. R., 312), decided by the circuit court of appeals for the first circuit, August 7, 1905. That court, by Judge Putnam, following a notable opinion by Lord Kenyon in the case of Beckford r. Hood (7 Term Reports, 620), decided in 1798, held that rights of action for infringement of copyright of a map which had not been granted by the copyright statute could still be maintained as common-law rights.

This case stands alone, however, as an announcement of what would appear to be a logical conclusion to the effect that after Congress has created a right of property in any particular thing the courts may be resorted to, to apply every known form of common-law remedy necessary for the protection of that property.

But this proposition is not now recognized by the courts, as is illustrated by the decisions in the cases of Bobbs-Merrill Co. r. Straus (137 F. R., 15), White-Smith Music Publishing Co. r. Apollo (147 F. R., 226), recently affirmed by the Supreme Court of the United States; Authors and Newspaper Association v. O'Gorman Co. (147 F. R., 616); and numerous other cases which have been decided during the past fifty years, in which the courts have taken a narrow and restricted view of copyright because they were unable to find in the statute specific warrant for the particular remedy asked.

It would seem impossible to incorporate in the statute all of the rights and remedies recognized at common law in other classes of property; but there would seem to be no logical reason why copyright, if to be regarded as property at all, should be denied all the ordinary rights and remedies accorded to other classes of property subject, of course, to such statutory requirements as Congress may impose. If, therefore, Congress passes an act by which property in copyright may be secured, it should, as a part of this act, once and for all, declare that the property thus granted should be full and complete, and should be entitled at the hands of the courts to the same degree of respect which other classes of personal property enjoy and receive.

For this reason I would respectfully suggest the incorporation in the bill at some appropriate place of a paragraph such as the following:

Tested by the ordinary rules of property and by ordinary standards of right and wrong, the works of an author are natural property both before and after publication, and subject to the limitations and conditions of this act. Copyright secured hereunder shall be entitled to all the rights and remedies which would be accorded to any other species of property at common law."

I have printed a brief in support of my contention in this particular, and I send you copies of it, in order that you may hand them to such members of the committee as choose to give the matter consideration. I also hand you a similar number of copies of a printed paper containing definitions of copyright taken from leading text-books and the statutes of the various countries.

In most of these definitions you will observe that copyright is limited to "the exclusive right of multiplying copies," but in some of the others a broader view is taken and the right is defined as "the exclusive right of the owner to possess, use, and dispose of intellectual productions.”

In Japan the right is spoken of as "a valid monopoly of the work."

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