The Government is not granting the common law right to make, use, and vend, but it is granting the incident of exclusive ownership of that commonlaw right, which can not be enjoyed save with the common-law right. A patent confers a monopoly. So this Court has decided in the Paper Bag Case, supra, and in many other cases. The idea of monopoly held by one in making, using, and vending connotes the right in him to do that thing from which he excludes others.

Now, the question came before the Supreme Court in a suit to forfeit a patent for nonuser during the statutory period. Landpatent principles were invoked to sustain the suit. The court held land-patent cases had no application, because the Government gives to an inventor nothing, whereas, in the case of a land patent, something is taken out of the public domain and turned over to the patentee and, therefore, the cases are not at all analogous.

The case was United States v. Bell Telephone Co., (167 U. S. 224). The same term "patent was used with reference to the exclusive right to make, use, and vend an invention. The court says:

While the same term is used, the same grantor is in each, and although each vests in the patentee certain rights, yet they are not in all things alike. The patent for land is a conveyance to an individual of that which is the absolute property of the Government and to which, but for the conveyance, the individual would have no right or title. It is a transfer of tangible property; of property in existence before the right is conveyed; of property which the Government has the full right to dispose of as it sees fit, and may retain to itself or convey it to one individual or another; and it creates a title which lasts for all time. On the other hand, the patent for an invention is not a conveyance of something which the Government owns. It does not convey that which, but for the conveyance, the Government could use and dispose of as it sees fit, and to which no one save the Government has any right or title except for the conveyance.

But for the patent, the thing patented is open to the use of anyone. Were it not for this patent anyone would have the right to manufacture and use the Berliner transmitter. It was not something which belonged to the Government before Berliner invented it. It was open to the manufacture and use of anyone, and anyone who knew how to contrive, manufacture and use the instrument. It conveyed to Berliner, so far as respects rights in the instrument itself, nothing that he did not have theretofore. The only effect of it was to restrain others from manufacturing and using that which he invented. After his invention he could have kept the invention secret to himself. He need not have disclosed it to anyone. But in order to induce him to make that invention public, to give all his care and the benefits resulting from such invention, Congress by its legislation, made in pursuance of the Constitution, has guaranteed to him an exclusive right to it for a limited time; and the purpose of the patent is to protect him in this monopoly, not to give him a use which, save for the patent, he did not have before, but only to separate to him an exclusive use. The Government parted with nothing by the patent. It lost no property. Its possessions were not diminished. The patentee, so far as a personal use is concerned, received nothing which he did not have without the patent, and the monopoly, which he did receive, is only for a few pears.

Now, need we go on with further argument upon this subject, multiplying Supreme Court decisions to the effect that the Government gives nothing? It does not create property, but the property belongs to the inventor. He can restrict its use, and so long as he does not publish it he can exclude the world from using it. Congress as an inducement to him under the constitutional guaranty stipulates with him to exclude the world from using it, provided at the expiraation of the period of the monopoly the work falls in the public domain.

1

The public policy involved is expressed by Judge Baker in Rubber v. Milwaukee (154 Fed. 361, Cir. Ct. App., 6th Cir.), as follows: Under its constitutional right to legislate for the promotion of the useful arts, Congress passed the patent statutes. The public policy thereby declared is this: Inventive minds may fail to produce many useful things that they would produce if stimulated by the promise of a substantial reward; what is produced is the property of the inventor; he and his heirs and assigns may hold it as a secret till the end of time; the public would be largely benefited by obtaining conveyances of these new properties

*

Now, there has been a false notion spread here that Congress grants copyrights and patents as a matter of favor and that the copyright holder is a sort of a quasi-public trustee and he must devote his property to the use and benefit of the public and that the public interest controls and dominates the situation. The Supreme Court has had occasion to explode that notion, and in James v. Campbell (104 U. S. 356), the court said:

That the Government of the United States when it grants letters-patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which can not be appropriated or used by the Government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt *. The Government of the United States as well as the citizen, is subject to the Constitution; and when it grants a patent, the grantee is entitled to it as a matter of right, and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor.

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The basis of all the contentions on the part of the proponents is that these musical authors enjoy their copyrights as a matter of favor and grace merely. Therefore, you may confiscate their property, if you choose. You can exclude the world from utilizing their works, or free their use to the world for just compensation, or confiscate them entirely. There is no basis or foundation for any such contention.

On the question of quasi-public trustee, in United States v. Bell Telephone Co. (167 U. S. 250), the court says this:

Counsel seems to argue that one who has made an invention and thereupon applies for a patent therefor, occupies, as it were, the position of a quasi trustee for the public; that he is under a sort of moral obligation to see that the public acquires the right to the free use of that invention as soon as is conveniently possible. We dissent entirely from the thought thus urged. The inventor is one who has discovered something of value. It is his absolute property. He may withhold the knowledge of it from the public, and he may insist upon all the advantages and benefits which the statute promises to him who discloses to the public his invention.

And the same relative rights of the patentee and the public were expressed in prior cases, and we cite them because there is something more than the repetition of the same thought by doing so. It shows that whenever the Supreme Court has had occasion to speak, it has decided that an inventor receives from a patent the right to exclude others from its use for the time prescribed in the statute.

And for his exclusive enjoyment of it during that time the public faith is forever pledged. (Chief Justice Marshall, in Grant v. Raymond, 6 Pet. 243, p. 242.)

And in Bloomer v. McQuewan (14 How. 539, 549), Chief Justice Taney said:

The franchise which the patent grants consists altogether in the right to exclude everyone from making, using, or vending the thing patented without the permission of the patentee. This is all that he obtains by the patent.

In Patterson v. Kentucky (97 U. S. 501), it was said that an inventor's own right to the use was not enlarged or affected by a patent.

In Bement v. National Harrow Co. (186 U. S. 70, 90), adopting the language of the circuit court of appeals for the sixth circuit in Heaton Peninsular Co. v. Eureka Specialty Co. (77 Fed. Rep. 294), it was said:

If he (a patentee) sees fit, he may reserve to himself the exclusive use of the invention or discovery. If he will neither use his device nor permit others to use it, he has but suppressed his own * * * his title is exclusive, and so clearly within the constitutional provisions in respect to private property that he is neither bound to use his discovery himself or permit others to use it. In Bauer v. O'Donnell (229 U. S. 1), Mr. Justice Day said, at p. 10:

The right to make, use, and sell an invested article is not derived from the patent law. This right existed before and without the passage of the law and was always the right of an inventor. The act secured to the inventor the exclusive right to make, use, and vend the thing patented, and consequently to prevent others from exercising like privileges without the consent of the patentee.

Since the arts and sciences, the writings of authors and discoveries of inventors, are connected in the same clause in the Constitution, and placed under the legislative power of Congress, copyrights and patents are considered as standing on the same footing.

Copyright secures to the author the exclusive right to use, publish, and sell the copyrighted work. (Litho. Co. v. Sarony, 111 U. S. 60.)

These broadcasters say to you, "We have got to have music; we have got to have hits." And you gentlemen, sitting as representatives of the people, are asked to take away from these authors their rights and turn them over to a group headed by the American Telephone & Telegraph Co., so that it can add to its $27,000,000 in profits earned during the past quarter.

Congress has no power to take their patents away from them, and I would like to see a bill introduced here with a view to taking their patents away from them. You would have the most distinguished lawyers in the United States, one after another, an army of them, walking up and arguing with all their strength and power against the constitutionality of such a proposal. Of course, this is against a group of song writers, and Mr. Tuttle says that this group is the most poorly paid of the white-collar contingent of our population. Well, if it is good law for the American Telephone & Telegraph Co., it is good enough law for this group of song writers. They ask for the same equal protection of the laws as does the American Telephone & Telegraph Co. They say to this Congress that if you are going to appropriate their property to public use, you are going to do it under due process of law and you are going to make just

compensation to them in accordance with the manner prescribed by the Constitution and the decisions of the Supreme Court.

And we challenge the right of Congress to enact any law for the benefit of that group of broadcasters. Who are they to come here and insist that we must turn our property over to them so that they may pay larger dividends to their stockholders?

In its final analysis, this question, stripped of that fancy camouflage that they build around it, is purely a commercial question of Congress fixing a price upon a commodity, a piece of copyrighted music, which they need in order to declare more dividends; and I think it is an insult to the intelligence of Congress, to you gentlemen, for Mr. Harkness to get up and say to you, "Our station does not pay." He wants you to believe that the American Telephone & Telegraph Co. is a public benefactor. I have yet to see the individual in these United States that has been the recipient of any bounty or benefit from the American Telephone & Telegraph Co. They are not in the habit of giving things away. Their specialty is taking things away, and they are trying to take some things away from us. We are going to resist them to the utmost. We will cry to Heaven against this iniquity that they are trying to perpetrate before this Congress. We will strip them bare of all their disguises and expose them and show just exactly what they are up to. They have the radio industry in their grip and now they want to have in their grip this little band of composers. They use for camouflage the hideous word "monopoly." My answer to that is that we are not the ones who are being investigated by the Federal Trade Commission. We have not control of 2,000 patents, which have pooled for the purpose of controlling the radio field. Before I am through I will paint this picture as it should be painted and let Congress decide.

They say we have got to have hits. We submitted a contract to these composers which they have refused to sign; and having refused to sign, we are going to Congress and ask Congress to write the contract into a law.

You heard here a lot of talk about the other 10 per cent; of the unrepresented composers; that the reason the broadcasters could not sign a contract was because they wanted to take care of the other 10 per cent. When Mr. Harkness got up the estimates and this document, the contract which he wanted the composers' society to sign and which the composers refused to sign, he was not thinking about the other 10 per cent. Mr. Tuttle comes here and says, "We did not sign because of the other 10 per cent; those independent writers were not taken care of." When Mr. Harkness or his lawyer drew this paper, why did he not take care of the 10 per cent in this document? Does he think that you gentlemen are lacking in intelligence and that they can come before a committee of Congress and hand out baby talk and expect the committee to suck in this baby talk?

I have had more experience than Mr. Harkness before congressional committees. I know their caliber and their intelligence, and I do not dare utter such silly nonsense and expect to have committees of Congress believe that sort of thing.

Now, they tell you, "If you do not pass this law we will have to close our stations." When the argument is driven home that this bill as now presented is unconstitutional because it takes away from

existing copyrights their broadcasting rights, they retreat and say, "No; we do not intend to take away existing rights; we will amend it; we are going to change it." The bill has not been changed yet. But somehow, somewhere, some place they are going to change it and permit existing copyright owners to retain their broadcasting rights. If they are going to permit existing copyright owners to retain their broadcasting rights, where are they going to get all this music they need for the broadcasting stations? How long does it take to develop a catalogue of successful, meritorious, attractive compositions that the public wants? It easily takes 10 years. What are they going to do during these 10 years?

Then here is a problem more serious than confronts them. This bill was not offered in good faith. Suppose musical authors refrain from publishing their works, but exercise their performing rights under the common law as they have the right to do? Mr. Tuttle says that this committee exercise a moderating influence upon the American society. In other words, every time they conduct unsuccessful negotiations with a group of composers for the use of their compositions and if the group refuses to accede to their terms they are going to come here and make a threatening gesture. They are going to come here every time a contract expires, and use this committee to force through a renewal. The American Telephone & Telegraph Co. is going to utilize you as their servants and they are going to make you expend the money of the people of the United States in printing records to secure for it the sort of contract it thinks it ought to get. They are using Congress as a sort of collecting agency, a moderating influence. I think it is high time for Congress to let the American Telephone & Telegraph Co. know that this Congress can not be used for any such purpose. It has a more important public business to attend to than to force unwilling men to accept unfair stipulations.

I am sorry this has taken me so long, but this is a matter of grave importance. An attempt is being made here to deprive us of our rights of property. We live by royalties, upon what our compositions can earn for us, and if Congress can by law fritter our rights away as the necessities of commercial users may require, then we would be reduced to sheer beggary.

We are fighting for our very lives; we are fighting for our very existence; and we have to for once and all bring home to Congress that this weapon in the form of a compulsory license shall not be utilized in any commercial warfare between commercial users and intellectual creators.

Under ordinary principles of economy, the law of supply and demand must govern and control our negotiations. Men who go up to see Mr. Harkness to get the use of his broadcasting stations have to submit to his terms or they are denied the use of his stations, and he has to come to us and submit to our terms or be denied the use of our compositions. We are equal before the law and we refuse to recognize any superiority on the part of the American Telephone & Telegraph Co., and they are the ones that are the most vitally interested in this. The use of the high-sounding name "National Association of Broadcasters" is pure camouflage. It is a paper organization. The list of its members has not been furnished here.