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owner of a musical copyright has the exclusive broadcasting rights. These rights are vouchsafed to him by his copyright, and since the days of Chief Justice Marshall (Grant v. Raymond, 6 Peters 218) it was held that a copyright is a solemn contract between the people of the United States and the copyright holder or the patentee; and that no law may be passed to abrogate or repudiate that contract or to impair its obligations.
This bill as drafted concededly is an adaptation of the compulsory license scheme incorporated in the act of 1909. I have no hesitancy in stating, notwithstanding the earnest assurance made to this committee by Mr. Tuttle, that the bill does not affect existing copyrights, that this act is absolutely unconstitutional, in that it takes away from existing copyrights their broadcasting rights, and the Congress has no power to do so.
If Congress feels that the people of the United States ought to have these rights or these copyrights, then these rights can be taken away only under due process of law, after the payment of just compensation, and Congress is not the body that can fix the prices. It was declared in the Monongahela v. United States, 148 U. S. 327, that while Congress has the unquestioned power to appropriate for public use any property, and while it may determine what private property is needed for public purposes, when it comes to fixing the price for the property then the question of compensation, that is a judicial question, and must be subjected to the tests of every judicial inquiry
The justice of such a rule becomes readily apparent when we consider the travesty of this very situation here. Here are men who have and enjoy rights guaranteed to them by the Constitution. A group of broadcasters claim that they should be permitted to utilize these rights, at a fixed price. A man gets up, 'representing the American Telephone & Telegraph Co., and tells the committee that a group of composers came to him and said they wanted $1,000,000 out of radio in three years and that thereupon he pondered over the matter, made estimates, in which he noted down the rate according to power to be charged to each in a class of stations, and got up a sheet of paper and said, “If you will charge each radio broadcasting station belonging to each of the several classes so many cents per watt, then you get $1,000,000.” That is how the rates suggested were arrived at and that is the basis upon which the people of the United States are asked to-day to take away the properties of creators of musical works. Who are they to come here and suggest that that be the manner in which the value of the rights of property of others shall be fixed, determined, and disposed of?
In the case of a public utility corporation exercising rights under a franchise from the people, Congress creates commissions for the purpose of determining and fixing just and reasonable rates. The courts have held that these commissions exercise judicial functions, their duties are judicial in their nature, they must exercise an honest judgment as to all matters submitted for their official determination; and all this subject to the limitation that rights or private property may not be destroyed by establishing rates on a confiscatory basis. (Wilson v. New, 243 U. Š. 332; Spring v. Schottler, 119 U. S. 354.)
Is this the way to enact legislation? A man rises up, proclaims, “A group of men want $1,000,000.' There would be no more justification for establishing a rate arrived at on that basis than if another group wanted $100,000,000 or $100,000,000,000. See the absurdity of the situation. It is a mockery. I think it is putting Congress in a most ridiculous light-a representative of the American Telephone & Telegraph Co. walking in here with a schedule of rates estimated upon a plan to yield $1,000,000 in three years from radio and suggesting to Congress to write that schedule into law.
The Congress has no power to do such a thing, and even if it had the power, unless the rate fixed was reasonable, arrived at in a judicial manner, it could not be sustained because Congress has no power to fix confiscatory rates even in the case of public utilities operating under franchises of the United States Government.
Now, there can not be any question with respect to existing copyrights; the act is unconstitutional. That is not debatable.
Let us now see whether Congress has the power to fix the price for the use of musical works copyrighted in the future. The power of Congress with respect to copyrights and patents under the Constitution is limited to grant of the exclusive right for limited times." It can do no more and no less. The price is fixed by the Constitution. Congress may not later it. Every word of the Constitution has its precise, definite, and proper meaning: It was written by the wisest men with the greatest care, subjected to the closest scrutiny, to the strictest and most jealous criticism. It was debated and discussed not only in the convention itself, but in the conventions of the various States. The framers did not stumble across the words “the exclusive right” fortuitously. They understood well what "the exclusive right” meant, as the Supreme Court pointed out in the Sarony case (111 U. S., at pp. 58, 59). There the question arose as to whether or not a photograph was a “writing” within the meaning of the Constitution, Congress having passed an act extending the copyright control to photographs, its power so to do was challenged upon the ground that a photograph was merely the product of the mechanical arts and was not the intellectual production of an author. It did not involve originality of thought or any novelty or mental conception, was not a creative work, and therefore not a writing" for which the Constitution intended Congress to protect. To determine whether or not the word "writings” as used in the constitutional provision was broad enough to include photographs, the Supreme Court went back to the time of the framing of the Constitution to ascertain the understanding of that word by the framers of the document.
Nor is it to be supposed
Says Mr. Justice Miller at page 60— that the framers of the Constitution did not understand the nature of copyright and the objects to which it was commonly applied, for copyright, as the exclusive right of a man to the production of his own genius or intellect, existed in England at that time, and the contest in the English courts, finally decided by a very close vote in the House of Lords, whether the statute of 8 Anne, chap. 19, which authorized copyright for a limited time, was a restraint to that extent on the common law or not, was then recent. It had attracted much attention, as the judgment of the King's Bench, delivered by Lord Mansfield, holding it was not such a restraint, in Miller v. Taylor, 4 Burrows, 2303, decided in 1769, was overruled on appeal in the House of Lords in 1774. Ibid. 2408. In this and other cases the whole question of the exclusive right to literary and intellectual productions had been freely discussed.
We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of phtographs, so far as they are representatives of original intellectual conceptions of the author.
So you have it solemnly declared by the Supreme Court of the United States that these men who framed the Constitution knew the nature and character of copyright, were familiar with the subject and understood its principles. The court emphasized that they understood copyright to mean (p. 58) :
As the exclusive right of a man to the production of his own genius or intellect existed in England at that time, and in this and in other cases the whole question of the exclusive right to literary and intellectual production had been freely discussed.
Now, what was the understanding of the term “copyright” at common law? At common law copyright meant the exclusive and perpetual right of a man to his intellectual productions whether the work was published or not. That was the meaning at common law and you have as authority for that statement Madison, Marshall, and Story and the Supreme Court in any number of cases.
In 1709 the learned men of England 'petitioned Parliament for a law to protect their publications more effectively. It was in answer to these appeals that the 8 Anne, chapter 19, became a law. The purpose of the act was to give better and more adequate protection to this common law right against piracy.
The statute of Queen Anne having been enacted, a case arose in 1769 involving the question of whether this common law right existed independent of the statute and whether the statute superseded this common law right. The work involved was Thomson's Seasons. The judges of the King's Bench, Lord Mansfield presiding, held in that case Millar v. Taylor, 4 Burr. 2303—that the statute did not supersede the common law; that the statute of Queen Anne was simply a cumulative remedy and that both existed; that copyright was founded in the common law; and that it had not been taken away by the statute of Anne, which was intended merely to give for a term of years a more complete protection. The origin and nature of literary property was exhaustively discussed by the judges
of the King's Bench, of which Lord Mansfield was Chief Justice. The case stands out as one of the great landmarks in the history of copyright.
This continued to be the law until 1774, when the decision was overruled by the House of Lords in the case of Donaldson v. Beckett, 4 Burr. 2408. The judges held that by the common law an author had the perpetual and exclusive right to his intellectual creation, and that this right was not, by virtue of the common law, lost or prejudiced by publication; but they held that the statute superseded the common law right and that upon the publication of the work the author could not exclude other persons from making use of his property.
This was the understanding of the nature of copyright in this country in 1774 because the controversy as to the common law right in literary property and the effect upon that right by the Statute of Anne attracted wide attention; 1783 was a very young period for our country, but there were learned men here, writing books, for which they wanted protection. Thereupon the old Colonial Congress, in 1783—and the precise date is Friday, May 2, 1783-adopted a resolution recommending to the several States to secure to the authors of new books the copyright of such books. Mr. Madison
was one of the committee that drafted the resolution, which was adopted. It is very important because the framers of the Constitution were thoroughly familiar with this resolution. They were contemporaneous with it. The words “exclusive" and "secure" appear in this resolution, and these are the identical words that were taken out of this resolution and put into the Constitution. The resolution reads;
Resolved, That it be recommended to the several States to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administrators, and assigns the copyright of such books for a certain time not less than 14 years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators, and assigns the copyright of such books for another term of not less than 14 years, such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors or publishers, their executors, administrators, and assigns by such laws and under such restrictions as to the several States may seem proper.
Now, here you have in this resolution the words " to secure" in it and the word “exclusive” and the term “copyright.” These words then had a precise, proper, and well defined meaning. They were later on defined in the case of Wheaton v. Peters.
In pursuance of this resolution 12 of the 13 States enacted copyright laws for the protection of authors. Each of these State laws had a preamble and declaration of policy and principles concerning learned men and their literally efforts.
These preambles and declarations of principles found their source in the decision of Millar v. Taylor, which affirmed the authors' right at common law that intellectual creations were property in the truest sense; that no property was more peculiarly a man's own than that which is produced by the labor of his mind. Connecticut was the first of the States to pass an act for the
encouragement of literature and genius (1783, January session).
Massachusetts was the second of the States to enact a law. I am going to take the liberty of reading it because it will give you gentlemen a notion of what those men who framed that statute understood the nature of copyright to be as early as March 17, 1783.
The preamble reads:
Whereas the Improvement of Knowledge, the Progress of Civilization, the public Weal of the Community, and the Advancement of Human Happiness, greatly depend on the Efforts of learned and ingenious Persons in the various Arts and Sciences: As the principal Encouragement such Persons can have to make great and beneficial Exertions of this Nature, must exist in the legal Security of the Fruits of their Study and Industry to themselves; and as such Security is one of the natural Rights of all Men, there being no Property more peculiarly a Man's own that that which is produced by the Labour of his Mind:
Therefore, to encourage learned and ingenious Persons to write useful Books for the Benefit of Mankind :
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the Authority of the same, That all Books, Treatises, and other Literary Works, having the Name or Names of the Author or Authors thereof printed and published with the same, shall be the sole Property of the said Author or Authors, being Subjects of the United States of America, their Heirs and Assigns, for the full and complete Term of Twenty-one Years, from the Date of their first Publication,
And be it further enacted by the Authority aforesaid, That if any Person or Persons shall print, re-print, publish, sell, or expose to Sale, or shall cause to be printed, reprinted, published, sold, or exposed to Sale, any Book, Treatise, or other Literary Work, not yet printed, written by any Subject of the United States of America, whose Name, as Author, shall have been thereto prefixed, without Consent of the Author or Authors, or their Assigns, during said Term, shall forfeit and pay a Sum not exceeding Three Thousand Pounds, nor less than Five Pounds, to the Use of such Author or Authors, or their Assigns; to be recovered by Action of Debt in any Court of Record proper to try the same. Provided always, That every Author of such Book, Treatise, or other Literary Work, shall, in Order to his holding such sole Property in them, present two printed Copies of each and every of them to the Library of the University at Cambridge, for the Use of the said University; and prior to the Recovery of the said Forfeiture, or any part thereof, shall produce, in open Court where such Action shall be tried, a Receipt of such Book, Treatise, or other Literary Work, from the Librarian of the said University for the Time being. Provided also, That this Act shall not be construed to extend in Favor or for the Benefit of any Author or Authors, Subject or Subjects of any other of the United States, until the State or States of which such Authors are Subjects, shall have passed similar Laws, for securing to Authors the exclusive Right and Benefit of publishing their Literary Productions.
You will observe that the enjoyment of the protection was limited to citizens of such of the States as secured to authors, the citizens of the other States, the exclusive right and benefit of publishing their literary productions. Twelve of the thirteen States, Delaware alone excepted, passed copyright statutes. A number of the State laws contained the words secure" and the "the exclusive right. ' But in each State the author had the sole right to publish, use, and vend his work for a term of years.
Each State had laws peculiar unto itself, and each had different copyright formalities and requirements.
Massachusetts required a deposit of two copies of the work with the University of Cambridge. Other States had other requirements with respect to the filing of papers and documents as a condition precedent to securing copyright. All of this made the procedure not only very difficult, but cumbersome, so that protection was denied to a great many men because they were unable to comply with the varying formalities of the different States.
It was realized that in order to encourage learned men it was absolutely essential to enact a general and an adequate law to prevail throughout the United States.
Story, in commenting upon the necessity for a general law regulating copyrights, states in paragraph 1152 of his commentaries :
The copyright of authors in their works had, before the Revolution, been decided in Great Britain to be a common-law right and was regulated and limited under statutes passed by Parliament upon that subject.
It was doubtless to this knowledge of the common law and statutable rights of authors and inventors, that we are to attribute this constitutional provision.
This power did not exist under the Confederation; and its utility does not seem to have been questioned. It was beneficial to all parties that the National Government should possess this power; to authors and inventors, because, otherwise, they would have been subjected to the varying laws and systems of the different States on this subject, which would impair and might even destroy the value of their rights; to the public, as it would promote the progress of science and the useful arts and admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint. In short, the only boon which could be offered to inventors to disclose the secrets of their discoveries would be the exclusive right and profit of them, as a mo