Mr. BONYNGE. What do you understand that language to mean? Could we say that that time should be 1,999 years? Would you construe that to be a limited period of time?

Mr. STEUART. Ah! That is a question quite beyond my capacity

to answer.

Mr. BONYNGE. Has a court ever passed upon that matter at all? Mr. STEUART. I do not think the courts have ever attempted to answer that question; no. I take it to be entirely discretionary with this committee. If the courts thought that what Congress did was unreasonable, was practically unlimited, they would, of course, declare it to be unconstitutional. But within certain limits almost any time is within the jurisdiction of the committee.

Mr. CAMPBELL. Mr. Steuart, is it not primarily a legislative discretion rather than a judicial one? Would it not be so even under the Constitution?

Mr. STEUART. It is certainly legislative discretion until it gets to be unconstitutional. [Laughter.]

Mr. CAMPBELL. I understand that very well. [Laughter.] But when a court comes to consider it

Mr. STEUART. You know the story of the Irishman who said that when he got beyond the scope of interest he got into swindling. [Laughter.]

Mr. JOHNSON. We take what is given to us and are very thankful for it.

Mr. STEUART. Now, the word "writing," as the primary object for which copyright legislation may be passed, has been construed by the courts to include almost everything which the brain of man can create which is not an invention within the scope of the present law which is recorded in some form so that it can be read or seen or understood by the eye.// Now, the limitation which has heretofore existed in the law has been that a writing was only that which could be read by the eye and from which thought could be conveyed from the written record to the brain of those who were reading it. Under. the recent cases which have been decided in the United States courts in New York involving the duplication of music by perforated sheets the whole gist of those decisions turned upon the fact that the existing statute was such as to require that the thing written should bet susceptible of being read by the eye, and that the records which were made for use in the mechanical instruments could not be read by the eye. There was much evidence of the fact that some people could read them, but the court held that the general preponderance of evidence was that they could not be read, and that because they could not be read therefore they were not writings in the sense in which the statute used that word in the copyright law, and that they could not therefore be protected.

Mr. CHANEY. They cut the blind man out.

Mr. STEUART. Yes; but that is not a necessary limitation of the use of the word "writing." The word "writing" in a broad and comprehensive sense is a record of thought. Any record of thought in a true sense is a writing, and any record of thought from which the thought may be read or from which the thought may be reproduced in such a way that it can be conveyed again from the record to the mind of another is a writing.

Mr. BONYNGE. Has there ever been any question about our right to give a copyright on the oral production of a play, for instance? Mr. STEUART. I think none whatever; it has been recognized.

Mr. BONYNGE. Upon what is that right based? What language in the Constitution enables you to copyright and prohibit the oral reproduction of a play?

Mr. GEORGE HAVEN PUTNAM. Or a lecture? The same question would cover a lecture.

Mr. BONYNGE. Or a lecture; yes. What is the language of the Constitution which gives us the right to protect the oral reproduction of a play or a lecture by a copyright?

Mr. STEUART. The reproduction of a thing which has been printed is the reproduction of a writing. After it has been written or printed then it is a writing. If it has never been written, if it has never been printed, then the playwright goes at common law, outside of the statute entirely. It is a thing which is private property, which has been created and which has never been given to the world, which has never been published in such a way as to cause the author to lose his rights. He is outside of the statute. It is unnecessary, as long as he chooses to continue in that condition, to come within the terms of the statute, and he is protected at common law.

Mr. CHANEY. Can we extend our copyright privileges to something outside the Constitution?

Mr. STEUART. Not by statute.

Mr. BURKAN. Mr. Chairman, at this point I want to say that the court did not so hold. I have here the decision of the circuit court of appeals, and here is what they said on the subject:

We are of the opinion that the rights sought to be protected by these suits-

These perforated rolls

belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant.

The court simply said that it was for Congress to enact laws to cover that form of reproduction, and that the present copyright laws were insufficient to cover perforated rolls.

Mr. CURRIER. That is exactly the way he stated it.

Mr. STEUART. That is precisely what I said that the existing law was insufficient to go far enough, although the Constitution was amply sufficient to give the protection that was desired.

In

Now, in an attempt to get into this act some phraseology which would not be more limited than the general scope of the Constitution would permit, and yet which would be broad enough to include everything that seemed to be within the limits of the Constitution, certain words were used. Those words are 66 the works of an author." section 4 it is provided "that the works for which copyright may be secured under this act shall include all the works of an author." Now, those words may be too broad. It is for this committee to say whether they are too broad. There are some works of an author that would not be writings, and it may be desirable at the outset of this bill to put into it a definition of the words "works of an author." Those words are well enough for the purposes of the act if they are

sufficiently defined. They are short; they are succinct; they travel through the frame of the bill. It would mean making a great many changes to take them out and put in other words. But they can be given a definition at the very outset of the bill which would limit them to copyrightable subject-matter within the Constitution.

Mr. WEBB. Why not use the word "writing," Mr. Steuart, and let the courts say what that word includes? That is the language of the Constitution.

66

A GENTLEMAN. What about it in that case, Mr. Steuart?

Mr. STEUART. Our effort was to get away from all that. We wanted to try to put into this bill something that had been settled. The courts have, during the past fifty years, included under the word writing" a great many things which in the ordinary acceptation of that term would not be writings. Now, in order to avoid those controversies and to try to put into the bill such terms as would settle this question, we have attempted to codify here that which the courts have decided without attempting to go beyond anything which the courts have decided. We do not believe we have gone beyond anything which the courts have decided, unless we have used the words "works of an author" in too broad a sense.

Now, those words may be defined. If there is danger that the language is too broad, it might be guarded by a definition, which would be somewhat as follows:

Whenever the words "works of an author" appear in this act they shall be construed as having the same meaning as writings or forms of record in which the thought of an author may be recorded and from which it may be read or reproduced.

If that definition is incorporated into the act at the very beginning as defining the words works of an author" there will be no difficulty about conflict with the Constitution. The courts will have no difficulty in interpreting the words "works of an author." The subject-matter which is intended to be protected will be separated and segregated from all those things which would be works of an author, but which would not be copyrightable, and would be also separated from anything which might be within the scope of the patent law.

Now I pass for a moment to the criticisms which have been made upon the various sections of the bill. I come to section 1 a.

It has been thought that this section, as the bill stands, creates rights in an author far greater than now exist and which would involve a great hardship upon the public. We think not. It has been held that under the present law the owner of a copyright has no right to do more than to print and to sell, and having sold he can not thereafter exercise any control over the particular copies, either as to the use which is to be made of them or the price at which they were to be sold. It is a well-established principle of the patent law that the owner of a patent may grant, lease, or license an invention or may sell a machine embodying it subject to any limitations he chooses to impose as to use, term, or price. The close analogy of the copyright law to the patent law has caused the framers of the present bill to believe that similar rights should exist in copyright. An attempt has been made to bring this about; but otherwise the bill does not differ from the existing law.

Mr. CHANEY. Mr. Steuart, let me ask you about section b. Would there be any objection, in order to make that plain and cover the point that has been raised against it, to adding, after the words "to sell," the words "or resell;" and then, in the second line of that subdivision, after the words " for sale," to add "or resale?"

Mr. BONYNGE. That would have just the opposite effect from what you intend.

Mr. STEUART. I think that would have the opposite effect from what you want to accomplish.

Mr. CHANEY. I understood those who are objecting to it to say that it would prohibit the reselling and the resale.

Mr. STEUART. I will mention that in a moment.

On this first point, as to the use which an author himself may make of his own printed publications, it seems eminently desirable that the property right which is granted by copyright to an author or a publisher in every copy of a copyrighted book should be such as to give to the author or the proprietor the power to deal with that book in any way he chooses. There does not seem to be any good reason why his rights of property in the copy which he himself has made, which is his own private property, should be limited. First he writes the book; then he buys the paper; then he prints the copy; then he binds it. It is his own private property, and he is ready to put it out to the public-for what purpose? Is there any good reason in the world why the owner of that book should not have a right to say to me, "I will grant you for one dollar the right to read this book, providing you will give it back to me after you have read it?"

That certainly is not a violation of any public policy. It is nothing in the world but a respect for the private property of the owner. But if I go to the owner and say to him, "I want a copy of your book," and he hands it out to me, and I pay him a dollar, what has he done? He has parted with his property without reservation in the particular thing, and it has become my absolute property. And what may I do with it? I may do anything I choose with it. I may give it away; I may sell it; I may hire it; I may burn it up.

Mr. LEGARE. That is what we want to accomplish.

Mr. BONYNGE. Yes; but does not the language of this subdivision b prevent you from doing that very thing?-because it says:

that the copyright secured by this act shall include the sole and exclusive right * to sell, let for hire, etc.

* *

Mr. STEUART. Precisely-the sole and exclusive right to the owner of the copyright until the owner of the copyright parts with that right.

Mr. BONYNGE. But after he has sold the book to Mr. A, and Mr. A undertakes to rent it out, would he not be prohibited by this language?

Mr. STEUART. Not at all. When he has sold it without reservation he has parted with his property in it absolutely. There is no language in this act-if it is obscure the committee will be very happy to have the language made clear, but as I take it there is no language in this act which will limit the right of a purchaser of a book or a piece of music (except for the purpose of performance, where that is

reserved) to do with the book after he buys it anything he chooses. All that this first section is intended for is that the owner of the copyright, the owner of the book, shall by this act be granted the privilege of doing with that book what he pleases as long as it remains his. The very moment he parts with it without reservation, sells it, it is gone. Mr. LEGARE. The act says he shall have the exclusive right to sell it. Now, then, if another man sells it would he not be violating this act? Mr. STEUART. Certainly not, if he has gotten the book from the man who had the exclusive right.

Mr. LEGARE. I do not agree with you.

Mr. STEUART. The Supreme Court of the United States, in patent cases, and particularly in an important case the name of which I can not remember at this moment, though I will think of it—a springbed case has established the law beyond any question that where a patented article has once received the royalty or license fee which the owner or manufacturer under the patent is entitled to receive, that machine has then and there been freed from the obligation to the manufacturer and it has gone to the public, and the public may do with it what they please. If the owner of the patent chooses to tie a string to it before he rents it out he has a right to do that. It is his private property. He can do what he pleases with it. So it ought to be with books or with anything else subject to copyright.

If the owner gives it to the public for a price, without any reservation, then, by necessary operation of law, the public will have a right to do what they please with their property which they have purchased without reservation.

Mr. CAMPBELL. And if he gives it to an individual he has done the same thing?

Mr. STEUART. Precisely.

Mr. CAMPBELL. And if he wants to keep any hold on the article thereafter, or keep any hold whatever on it, he must either lose the sale or he must make a limited sale?

Mr. STEUART. Precisely.

Mr. CAMPBELL. He must make a lease of the thing rather than an absolute sale?

Mr. STEUART. Precisely. If the property passes it is gone, and there can not be any possible reservation. If the property has not passed, then he may reserve whatever he chooses to impose in the lease by way of conditions.

Mr. WEBB. Do you think this language in keeping with your idea, then? It says:

The copyright secured by this act shall include the sole and exclusive right * * * to sell * * * or hire any copy of such work

any copy.

Mr. STEUART. Yes, sir; that is perfectly clear to me.

Mr. WEBB. Well, it is not to the committee.

Mr. STEUART. If there is any question about it, we submit the matter for the committee's correction. But the thing that the act proposes to provide for is that the owner shall have this right in the first instance, and that nobody shall have it but the owner of the copyright; but that the owner of the copyright may grant it to anybody he chooses, and when he sells a copy all these rights of property necessarily go

with it.