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TO AMEND THE COPYRIGHT ACT

WEDNESDAY, APRIL 9, 1924

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON PATENTS,

Washington, D. U.

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The subcommittee met, pursuant to call, at 10 o'clock a. m.. room 210, Senate Office Building, Senator Richard P. Ernst presiding. Present: Senators Ernst (chairman), Brandegee, Stanley, Broussard, and Shipstead.

Present also: Senator C. C. Dill.

The CHAIRMAN. The committee will be in order. The subcommittee has met this morning to consider Senate bill 2600, proposing to amend section 1 of the act entitled "An act to amend and consolidate the acts respecting copyrights," approved March 4, 1909. (Senate bill 2600 is as follows:)

A BILL To amend section 1 of an act entitled "An act to amend and consolidate the acts respecting copy right," approved March 4, 1909

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the act entitled "An act to amend and consolidate the acts respecting copyright," approved March 4, 1909, be amended to read as follows:

"SECTION 1. That any person entitled thereto, upon complying with the provisions of this act, shall have the exclusive right

"(a) To print, reprint, publish, copy, and vend the copyrighted work;

"(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to convert it into a novel or other nondramatic work if it be a drama; to dramatize it if it be a nondramatic work; to complete, execute, and finish it if it be a model or design for a work of art;

"(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production;

"(d) To perform or represent the copyrighted work publicly if it be a drama or, it it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

"(e) To perform the copyrighted work publicly for profit if it be a musical composition; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangements or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: Provided, That the provisions of this act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: Provided further, That as a condi

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tion of extending the copyright control to such mechanical reproductions, wherever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the 20th day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the 20th of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: Provided further, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement for such copyright: And provided further, That the copyright control shall not extend to public performances whether for profit or without profit, of musical compositions where such performance'is made from printed or written sheets or by reproducing devices issued under the authority of the owner of the copyright, or by use of the radio or telephone, or both.

"In case of the failure of such manufacturer to pay to the copyright proprietor within 30 days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this act, not exceeding three times such amount.

"The reproduction or rendition of a musical composition by or upon coinoperated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs."

SEC. 2. That this act shall take effect immediately.

The CHAIRMAN.

duced the bill.

We will first hear from Senator Dill, who intro

STATEMENT OF HON. C. C. DILL, UNITED STATES SENATOR FROM WASHINGTON

Senator DILL. Mr. Chairman and gentlemen of the committee, I think in light of the fact that there have been so many telegrams that have come to the committee and to Members of the Senate it might be well for me to explain to the committee just how this bill happened to be introduced.

As you know, I live in the far Northwest, and we have no large broadcasting station in the far Northwest, but we have a number of newspapers in the Northwest that have broadcasting stations. There is no profit to those newspapers, except whatever profit might come in the friendly good will that the people owning receiving sets have as a result of the broadcasting programs that are put out night after night.

The Oregonian at Portland, one of the largest newspapers, has been complaining for some time about the fees which they are asked to pay by musical writers and musical publishers if they happen to have a program with some musical number that is copyrighted at any time, and this is causing a great deal of annoyance, first, in the way of expense, and, secondly, from the fact that somebody comes there to sing for them and he does it as a matter of public service to entertain listeners on the radio, and in his program he happens to sing

some song that he uses at maybe different places, and they are immediately attacked by the attorney for some publishing organization and have either to pay a fee or face a lawsuit.

The Seattle Post-Intelligencer is another great newspaper in that part of the country, to say nothing of the smaller broadcasting stations.

I first had some experience in trying to get radio programs at my home in Spokane, and I found that without a rather large set I could get any stations except those in the Northwest, and, knowing that the people there were dependent on those programs, it seemed to me that this was an unjust and an unfair use of the copyright law. So to meet that situation, which I knew existed not only there but in other parts of the country, I introduced this bill, Senate 2600, and introducing it I took the copyright law of 1909, and I think this is practically the same, with perhaps a few words on page 2 which have been dropped that I thought did not apply in any way. I inserted on page 4 a provision, which is the provision that really changes the copyright law, and I think it is only change in the law. Beginning in line 12, page 4, the bill reads:

And provided further, That the copyright control shall not extend to public performances, whether for profit or without profit, of musical compositions where such performance is made from printed or written sheets or by reproducing devices issued under the authority of the owner of the copyright, or by use of the radio or telephone, or both.

Lines 15 and 16, referring to the reproducing devices, apply to the phonograph that is sometimes used also over the radio reproduced program, and it may be that the wording will need to be changed slightly in that respect, but my purpose is to provide that the copyright control shall not apply to the use of the music over the radio, whether it be by telephone or otherwise. I mention the telephone because in more recent time they are connecting it by long distance and number of stations and broadcasting the same program simultaneously from a lot of stations.

I say that my first interest is to free radio broadcasting. I do not care to go into the history of the radio in other countries, but in practically every other country today there is a tax on the receiving set, which tends, of course, to discourage the radio. That tax is used in in many countries to keep up the broadcasting stations.

The larger number of broadcasting stations in this country have no way of securing profit, except the good will that comes to them as a result of the programs that they broadcast.

This art is in its infancy, and nobody can even prophesy what the radio may yet become. We have made the most remarkable development in this country that has been made anywhere in the world, and I think we are proud of it, and I think those of us who know anything about it want to keep the way open to develop radio and to get more and more people using radio sets. In order to do that we must have good programs. I may remind you that in large sections of the country many of these musical programs would never be heard by the people at all except by radio.

I believe that when the man who has created music has received his copyright fee, which he is entitled to have, from those who purchase his music, and that copyright fee has been paid, that that ought to be enough, and especially it ought not to be applied to the de

velopment of this art by these radio broadcasting stations all over the country.

I may say to you that this musical publishers' association have their attorneys in each district. What their financial arrangement is I do not know, but I do know that they are very active and they take advantage of these broadcasting stations. There are, I understand, suits now pending, one against the Chicago Board of Trade and one against a station in Cincinnati.

The CHAIRMAN. What is the Cincinnati station?

Senator DILL. I do not know which station it is. I think some of the members who will testify will give you that information. Another is against the Los Angeles Times.

I am not as well informed on this as are some of the witnesses who will testify later, but my information is that this matter has never gone to the courts but once. That was a case brought in New Jersey, where a Federal judge decided that, because there was some profit to the firm that had a broadcasting station, the owners of the copyright were entitled to charge him a fee for using their music. His profit, of course, came from the fact that he advertised his store by the broadcasting program.

The CHAIRMAN. Your bill provides "with or without profit"? Senator DILL. Yes. It is impossible to say what profit a man might receive.

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I spoke of the newspapers that I had in mind first because I pose there is some profit to the newspapers, but it is an extremely indefinite profit, a profit coming from the good will that those newspapers may receive from giving these programs.

Now, I want to call attention to the fact that this law that they are now collecting a fee under was passed in 1909. When the copyright law was passed, of course, Congress had no thought of its use by radio. Radio was not even dreamed of at that time ever reaching the proportions it has now reached.

On the theory that the copyright owner has a right to charge for a reproduction of his music anywhere if anybody makes any sort of profit anywhere, it is almost unlimited. I am informed that they not only want a fee from the broadcasting station that may put music out over the air, but if a man has a dance hall out in the country somewhere and he puts up a receiving set with a reproducer and makes music and they have a dance there, he must pay another fee; and I suppose if some new method is developed of reproducing by another broadcasting method they would want still another fee. It seems to me that there must be somewhere a limit on this thing, and I think the limit ought to be drawn where a man has produced his music and received his regular copyright fee, and it seemed to me that, especially on radio programs where there is no direct return and where the programs are largely a matter of public service, Congress ought to encourage free radio to the great masess of our people by providing that this copyright law should not apply.

I just want to call your attention to how it can be applied. If you can charge a radio station like a newspaper station for using some music, a store might hire a man to stand out in front of the store and sing some of the songs as an advertisement of his place of business. On the same theory the store must pay a fee for that. Applying it to the patent law, suppose a man invented a certain

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