The CHAIRMAN. Mr. Klugh, it has transpired that this gentleman has taken more than three minutes and I think possibly it may be better, unless it interferes with your program very seriously, to put on Mr. Tuttle now. Mr. KLUGH. That would be quite acceptable. The other gentleman who said he had to leave has consented to stay over. We will put on Judge Tuttle if you desire, Mr. Chairman. The CHAIRMAN. There is another matter that I would like to bring up here now before you put on Judge Tuttle. It is now nearly 12 o'clock. We have in the Senate to-day a very important matter and the Senators on the committee desire to be on hand promptly at 12 o'clock when the session begins. Therefore, I think we should have it in mind to discontinue the hearing until sometime either this afternoon or to-morrow. Suppose we adjourn in five minutes until to-morrow morning at 9.30 o'clock, if that is agreeable. If the committee consents to that that will be the arrangement. Now you can put on Judge Tuttle. Mr. KLUGH. Mr. Chairman, do you not think it would be better to postpone calling Judge Tuttle until he can speak continuously? The CHAIRMAN. Then, if there is no objection, the committee will stand adjourned until 9.30 o'clock to-morrow. (Thereupon, at 11.50 o'clock a. m., the committee adjourned until 9.30 o'clock a. m., Tuesday, April 6, 1926.) TO AMEND THE COPYRIGHT ACT TUESDAY, APRIL 6, 1926 CONGRESS OF THE UNITED STATES, COMMITTEES ON PATENTS OF THE SENATE AND HOUSE OF REPRESENTATIVES, Washington, D. C. The committees met, pursuant to adjournment, at 9.30 o'clock a. m., in room 412, Senate Office Building, Senator William M. Butler (chairman) presiding. Present: Senators Butler (chairman), Shipstead, Broussard, and Dill; and Representatives Vestal, Esterly, Goodwin, Bowles, Lanham, Bloom, Underwood, and Hammer. The CHAIRMAN. The chair understands, Mr. Klugh, that your counsel will proceed this morning. We are already to go on. STATEMENT OF CHARLES H. TUTTLE, ESQ., OF THE LAW FIRM OF DAVIES, AUERBACH & CORNELL, NEW YORK CITY Mr. TUTTLE. Mr. Chairman and gentlemen, it is my purpose, as briefly as possible, to do three things first, to state what we conceive to be the problem before the broadcasters; secondly, to state what the relation of that problem is to this bill; and, third, to state what are the elements that make up and constitute the factors of the problem which confronts us. I am adding that third purpose because, as has already been stated by Mr. Klugh, our minds are open on any solution that can be presented properly of this matter, whether such a solution would be suggested by the committee or whether it would be suggested even by the American society. We have given a great deal of thought to this matter and it is our feeling that this bill, although it contains some paragraphs with which we are not in agreement, presents a principle which furnishes, so far as we know, probably the best, readiest, and most workable solution for our problem. I feel that by going back to my first purpose I can best state the problem that is before us in the words of the resolution of the so-called Committee No. 9 of the Fourth Radio Conference, which resolution was referred to yesterday, and I want to read it—it is brief-in order that it may be considered as a formulation of our problem. It is this: Whereas there can be no continuation of broadcasting unless musical compositions are made available to broadcasters upon a fair, equitable, and permanent basis; and 93693-26--3 29 Whereas an insistent demand from the public requires that music be made the principal part of broadcast entertainment; and Whereas practically all of this music is held by copyright proprietors and is not available to broadcasters except on prohibitive and unstable terms; and Whereas the broadcasters recognize the right of the copyright proprietors to compensation for the use of their compositions and are willing to pay a fair and equitable maximum fee for each broadcast rendition of each copyright musical number; and Whereas broadcasters believe that copyright owners should have the sole, complete, and entire right to withhold their property from all broadcasting if they so desire; but that if a copyrighted number is released by the owner thereof to one or more broadcasters, then such number shall become available to all broadcasters; and Whereas the present conditions threaten the entire broadcasting structure and the continuation and permanence of broadcasting depends upon the solution of this problem; and Whereas all attempted solutions through negotiation between the parties have proved unavailing: Now, therefore, be it Resolved, That it is the sense of this conference that the only possible solution lies in the enactment of suitable legislation based upon the above principles, and it is the recommendation of this conference to the Secretary of Commerce that such legislation be suggested to Congress. That I am submitting to the committee as a statement of what we conceive to be our problem. I now want to pass to my second purpose. Representative BLOOM. Do you not want to put in there what action the conference took in reference to that? Mr. TUTTLE. You are anticipating me, Mr. Bloom. Mr. TUTTLE. I am coming to that immediately. I am stating that the second purpose which I want to lay before the committee is the relation as we conceive it between this problem and the bill, and I know of no more fitting introduction to the statement of that relation as we conceive it to be than to read to you what Secretary Hoover said in connection with the report which formulates this problem. The chairman of Committee No. 9, Hon. Wallace H. White, in presenting the report said: Mr. Secretary and members of the conference, I have the honor to present the report of Committee No. 9, on copyright relations to broadcasting. Mr. White then read the report in full. Then Secretary Hoover, who was the chairman of the conference, said: Gentlemen, before I submit that report to the conference, I would like to make a suggestion for the action of the conference. In my statement on Monday morning I indicated that we had suggested that a committee should be appointed on this subject, not as a matter for this conference, but as a stage upon which perhaps conflict might be settled by agreement; in other words, that the presence of this conference should be used as an opportunity for the negotiation of a difficult question upon two groups. I do not, therefore, see that any particular action of the conference will settle a commercial conflict. I have a perfect willingness to transmit this recommendation to the necesasry committee in Congress. In fact, Congressman White, who has been the chairman of the committee, is himself chairman of the subcommittee. But I would suggest rather than to enter upon the threshing out of the copyright question in this session, that we should allow the matter to stand where it is, this being the declaration of that committee. If you agree with me, I would suggest that we close the matter. I might simply take the sense of the conference on the proposition I make, that as far as this conference is concerned, we allow the matter to rest where it stands without further debate. Now, if you are in favor of my interference with the parliamentary order, will you please say aye? The suggestion was agreed to and then Secretary Hoover continued: That is decided, and we are thereby able to proceed to the report of Committee No. 8. Representative BLOOM. You have not as yet answered my question. Mr. TUTTLE. I have read the statement of Mr. Hoover and I have read what is taken from the minutes as I have the minutes. Representative BLOOM. But you do not wish to have it inferred that the statement I made yesterday and read from the official report of the Secretary of Commerce with reference to Committee. No. 9, which differs from that-you do not wish to have it inferred that this report of Mr. Hoover itself issued by the department is not correct, do you? Mr. TUTTLE. I am not wishing to infer anything, Mr. Bloom. I am simply reading the declaration of Mr. Hoover, and I wanted to read that declaration as a part of the matter which I have presented and am presenting. I have read it without any comment at all. I have simply read Secretary Hoover's own words. Now, let me take up briefly some of the aspects of this bill. In the first place, it is important to know that the bill excludes from its operation all compositions, and the compositions referred to are solely musical compositions published and copyrighted before this subsection, this proposed new subsection, takes effect. In order that the significance of that may be appreciated I am going to call the attention of the committee to the aspects of the copyright law which are involved. Section 1 of the copyright law which creates and defines the rights of copyright carries five subdivisions. Subdivision (a) is the exclusive right to print, reprint, publish, copy, and vend the copyrighted work. Subdivision (b) is the exclusive right to translate. Subdivision (c) is the exclusive right to deliver or authorize the delivery of the copyrighted work in public if it be a lecture, sermon, address, or similar production. Subdivision (d) carries with it the same declaration with reference to dramatic works. Subdivision (e), which is the subdivision which concerns us, discusses the rights in connection with music; and it gives exclusive right to perform the copyright work publicly for profit if it be a muscial composition and for the purpose of public performance and for purposes set forth in subsection (a). It is longer. I will read the exceptions subsequently, but I want the committee to see that the act divides the totality of the copyright into at least three divisions depending upon the character of the work itself as an address or as a drama or as a musical composition. This bill proposes to add a new subdivision, subdivision (f), which devotes itself to the matter of broadcasting in connection with musical compositions; in other words, in connection with the compositions which are mentioned in the existing subdivision (e). I say that the first thing about the bill to note is that it excludes from its operation musical compositions which are already published and copyrighted. The reason for that I think is not far to see. It lies in decisions which have held that Congress can not within certain limitations, which it is unnecessary to go into now, take away the existing contract which a copyright is supposed to represent; that it would, in |