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Mr. GEORGE HAVEN PUTNAM. Would it be your idea to add the words “any infringing copy of such work? Would that meet your idea?

Mr. STEUART. It might do so.

Mr. PORTERFIELI). Mr. Chairman, I would like to suggest that the matter Mr. Steuart is discussing is a matter of contract, and not of copyright law. Of course, any man can make any condition of sale of any chattel he has under the law as it stands, and there is no need for any provision in the copyright law about it.

Mr. STEUART. Now, the law of fair use, which has been inquired about, is so well established by the decisions of the courts that I take it that it is unnecessary that anything should be incorporated in this act to make it plain that it is not intended to cut off the fair use of other people's literary matter. That is too plain, I think, for argument. If the committee thinks there is any doubt or danger about it, the word “material,” before the word“ part,” may help it a little. I do not know that it will, but there is no objection to it. The fair use of literary matter is a well-established principle of law, and there is no possible doubt that it will be enjoyed under this act.

Section c is new in this act. It was introduced here for the purpose of permitting the protection of lectures, sermons, and addresses for profit. I do not know that there is any objection to that, but it is a new provision in the law.

Now, with reference to the clause f there are two matters. We may consider clauses f and g together. I understand that the committee proposes to consider clause g again. Therefore I shall only stop for one moment to say that from the standpoint of the committee of the American Bar Association we think g might be dropped out of the bill, but we think that just as good results, covering all of the desired remedies, that can be accomplished by clause g, that are within the scope of the copyright law, can be accomplished by adding a clause to clause f.

Clause f ends with the words “in any system of notation.” It was designed by those words to cover somewhat the same ground as is covered by clause g-in fact, to cover the whole ground that was covered by clause g. Clause g came in as the result of an earnest desire on the part of some people who wanted to make it very clear that this bill was intended to stop the use of music by mechanical music-producing apparatus. Our criticism of clause g is that it attempts to encroach upon the patent law unnecessarily. We suggest that clause f be amended in this way:

To publicly perform for profit a copyrighted musical work, or any part thereof, or for the purpose of public performance for profit, or the purposes set forth in subsection b (which is to sell, or so on] hereof to make any arrangement or setting of such work or of the melody thereof, in any system of notation or form of record in which the thought of an author may be recorded, and from which it may be read or reproduced.

That will give to the composer and the music publishers everything which they could possibly get under the Constitution. That would be the copyrighting of a writing, and it would hold their compositions for every purpose for which they could be used which would result in their being produced as music to the ear or read by

the eye.

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So far as the introduction of the word “profit” is concerned, in the first line of that section, there has been a very great protest on the part of many people against the drastic nature of this bill, proposing to punish the public performance of copyrighted music. Now, that is the present law. The present law is just as drastic as the present bill in the prohibition of the use of copyrighted music. I have conferred with many of the music publishers, and I find that none of them have any objection to the introduction of the words “ for profit.” There is no reason in the world why a child or a regimental band passing down the street singing or performing a copyrighted piece of music should be penalized for the act when it is a mere matter of entertainment and a mere matter of the use of music which has been bought or learned. The thing to be protected is the business of the music publishers and not to cut off the public from the enjoyment of music which can be received or enjoyed by any mode in which it is publicly performed. So that the introduction of the words “ for profit” in that clause will, I think, relieve the clause of all of the objections which have been made against it by those who think it is too drastic a restraint upon the free use and the free enjoyment of music.

Mr. JOHNSON. How would it read then—that first line ?

Mr. STEUART. “To publicly perform for profit a copyrighted musical writing, or any part thereof, or for the purpose of public performance”

Mr. JOHNSON. For profit?
Mr. STEUART. Yes.
Mr. CHANEY. The words “ for profit” should be put in there, too?
Mr. STEUART. Yes; they might as well be put in at both places.

Mr. JOHNSON. Because a band going down the street and playing
a piece of music is giving a public performance.
Mr. STEUART. Oh, yes; undoubtedly.
A GENTLEMAN. And the band gets paid.
Mr. JOHNSON. Its performance is a public performance for profit.

Mr. McGavin. If a man plays a piano for profit, would not this restrict him?

Mr. STEUART. It would restrict him if he played it for profit.

There has been some objection made to section 3. There is a danger, quite a serious danger, which has been pointed out by some one in section No. 3, and that is in the last clause of that section, which allows all matter reproduced in a new edition which is to be copyrighted under this act to enjoy all the privileges of this act. That may be dangerous, and it may include things that were not intended to be included. The committee will, of course, give that careful consideration.

In section 5, where certain things are enumerated that are to be the subject of copyright, there are a number of subjects enumerated after the word "books” which may with propriety be called books, which in accordance with the decisions of the courts have been held to be books—composite and cyclopedic works, directories, gazetteers, and other compilations, but not including works specified in other subsections; periodicals, including newspapers—all those matters are properly books. When the bill was first drawn the committee thought the word books was enough; that it was unnecessary to specify any of the other subjects which would properly be desig

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nated as books, and which have been regarded and held to be books. But some of the special interests that were concerned were very anxious indeed that they should have the opportunity of submitting to the committee the form in which their particular interests would be mentioned, and for that reason the special subjects were included, It may possibly lead to ambiguity; it may possibly lead to the exclusion of some things which would otherwise be included. I really think that everything after the word “books” would properly be included under the head of the word "books," and that the other may be surplus matter.

Nr. PETTIT. Mr. Steuart, may I ask a question before you proceed very much further as to section 1, in regard to the sale which you discussed? Is it understood that clauses c, d, e, and f are reserved rights carved out of clause b? That is, where there is a sale of the article, that the rights under clauses c, d, e, and f are still reserved in the copyright owner, or does the sale under clause b purport to pass to the purchaser all the rights under clauses c, d, e, and f? Under the discussion which you were previously making, does the sale of the copyrighted thing without reservation give the same right to the purchaser that the copyright owner previously had ?

Mr. STEUART. No; section c is designed to cover lectures which are to be delivered and may or may not be printed and published. The performance of a copyrighted drama is regarded as a separate estate, which is independent of the sale of the copy. The dramatization of a nondramatic work is also another separate estate, and the performance of music is a separate estate.

Mr. PETTIT. Then the purchaser, under clause b, does not take all the rights that the copyright owner had, even though there is no special limitation or notice contained in the work?

Mr. STEUART. No; not where they are reserved by the statute.

Mr. PETTIT. Well, that was a right which, I understood from your discussion, followed the analogy of patent laws—that an out-and-out purchaser of a machine such as a spring bed had the same right that the patentee had, unless there was a reservation.

Mr. STEUART. Unless there was a reservation, either an individual reservation at the time of the sale or a statutory reservation. Under the old law, as you will remember, governing extensions the man who took the license for the original term got no interest in the extension unless it was specially provided. He might buy a machine expressly for the first term, but he would not get a right in it for the second term; but that was because there was a statutory reservation.

Mr. PETTIT. I understand that, of course; but in this respect the copyright law as you interpret this provision would differ from the patent law?

Mr. STEUART. Well, no; it would not differ from the patent law. Under the existing patent law there is no statutory reservation; but as the law used to exist when there, was a right of extension there was a statutory reservation, and where the extended term was granted it was not regarded as passing with an assignment of the first term. Now, there are two classes of rights which can be reserved—those which are expressly reserved and those which are reserved by statute. These are things reserved by statute.

Mr. PETTIT. So that a sale of the copyrighted thing—the book, or whatever it might be without any express reservation on the book, implies a reservation of the rights which are here specified in this act?

Mr. STEUART. By statute—I take it so.
Mr. Petrit. That is your understanding?
Mr. STEUART. That is my understanding.
Mr. PETTIT. I just wanted to understand that.

Mr. WALKER. Mr. Steuart, will you permit me to ask you one question on that point?

Mr. STEUART. Yes, sir.

Mr. WALKER. According to this bill as you understand it, would it be competent for an author to print under his copyright notice a reservation prohibiting people from doing anything with that book except reading it themselves? Would it be competent for the author to prohibit the sale of that book by the purchaser!

Mr. STEUART. Yes, sir.

Mr. GEORGE HAVEN PUTNAM. The right would be a different thing

Mr. STEUART. That is another matter; but under the absolute right of the author, he could make any reservation he pleased. In other words, this so-called sale would be nothing but a license to read,

Mr. McKINNEY. May I ask a question, Mr. Steuart? Was it the object of the draftsmen of this bill to break up the second-hand book business?

Mr. STEUART. Not at all.

A GENTLEMAN. That is impossible, sir. The purpose as expressed by Mr. Steuart is the purpose of the act.

A GENTLEMAN. Mr. Chairman, may I ask Mr. Steuart if that is not included, in his judgment, under the present word “vend” in existing law? Has not that practically the same force ?

Mr. STEUART. Exactly the same force as section b of the present act, I take it-sections a and b.

Mr. HINSHAW. That is, then, you think, the words "sell, distribute, exhibit, or let for hire are included in the present statutory word "vending?"

Mr. STEUART. Entirely. I do not think there is any extension at all of the rights granted. They are only more specifically stated.

Mr. BONYNGE. Are the reservations in paragraphs c, d, and e new statutory reservations to the copyright holder ?

Mr. STEUART. No; c is, I believe, new; d is old; e is new, and f is old.

Mr. BONYNGE. So that c and d are new, and e and f are old statutory reservations?

Mr. STEUART. Yes, sir; except so far as the last clause of f is concerned.

Now, with reference to section 8: A question has been raised as to the meaning of that section in consequence of the use of a word in subsection a of section 8. As the law now stands, a foreigner may get copyright in the United States if he is a resident in the United States at the time that he makes his application for copyright and publishes his book, or if he is a citizen of a foreign nation which grants similar rights to the citizens of the United States.

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It was thought, in considering this question, that there was no good reason why copyright in the United States should not be granted to a foreigner who came here and published his book first or cotemporaneously with his publication in the home country, making a third class of foreigners who are entitled to receive copyright in the United States. The object to be gained is to bring the book within the reach of the American public and to have it printed here. The benefit to the United States, therefore, comes from getting the book in circulation and having the work done in this country; and it seemed to the framers of the bill that it was advantageous that a third class of foreign citizens should be given the privilege of copyright, and that foreigners who were resident abroad, but who took the trouble to come here and print first and publish here first, should have the right to procure copyright without the necessity of coming here to live.

Mr. Johnson. May I ask, Mr. Steuart, what the word “ making ? there means? Does it mean “ manufacture?

Mr. STEUART. I do not know what it means.
Mr. Johnson. In the ordinary sense of the word?

Mr. STEUART. I do not know what it means. How that word got in there I can not tell you.

Mr. Johnson. Of course the making might be the composition of the work.

Mr. STEUART. Yes; I should rather imagine it would be as well to drop the word out entirely. It does not add anything to the section. Publication is the thing we want, and publication under copyright necessarily results in the making of the book here. It has to be made here, because the type has to be set here.

Mr. JOHNSON. Mr. Chairman, may I say that our committee has formally instructed me to ask for the dropping of the words “making and ” on the ground of being vague?

Mr. HINSHAW. Does not that refer to those things which might not be construed as publications, such as the perforated rolls that have been spoken of, which really are manufactures instead of writings?

Mr. STEUART. But the putting out even of a roll is the publication of it.

Mr. HINSHAW. It might be so construed.

Mr. GEORGE HAVEN PUTNAM. The word “publication it

Mr. Johnson. Our objection to it is that it makes an indeterminate, continuous period, instead of a definite one. “Publication” is a very definite term.

Mr. GEORGE HAVEN PUTNAM. Yes.

Mr. STEUART. Now, with reference to section 10, it has been said that the act makes no provision for penalties for a failure to comply with the requirements of section 10. It is true that in terms the act does not. In framing the act it was thought that such penalties were wholly unnecessary, for the simple reason that it is a well-understood proposition of law that copyright after publication can only exist in the United States by virtue of the statute. If publication occurs without compliance with the requirements of the statute, the book is public property, and anybody can print it or use it in any way he pleases. If, however, the owner of the copyright, the owner

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