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the American Library Association, and it was understood that their acceptance constituted a final adjustment of the issue.
A certain number of the librarians of the country, declining to be bound by the action of their authorized representatives, have submitted to your committee contentions for the retention of the provision in the existing law.
The section in the law as it now stands was inserted without debate, discussion, or consideration during the last day of the session in which the law was enacted.
It was so loosely worded that in addition to giving the libraries and institutions full permission for the importation of copyrighted books, it extends the same permission to individuals. It does not even place any restriction upon the edition so imported, leaving anybody in the United States free to import from abroad, in competition with the so-called American editions, copies which had been produced in foreign editions without any arrangement with the author.
As a result of this provision, the importation of foreign editions of copyrighted books has steadily increased, and the so-called protection of copyright for the authors and their representatives has become a farce.
The provision as it stands represents a law, but not justice. The suggestion has further been made to your committee that in some fashion or other the new law should recognize the interests of authors in regard to copyrighted editions, but should minimize the claims of the assigns of the authors, the publishers, in regard to the control of such editions. Such a distinction would not be equitable if it were practicable, and it is in any case not practicable. The thing that is protected by the copyright law is not the person, but the copyright. The law must be no respecter of persons. The property in the copyright is entitled to precisely the same consideration whether it be in the hands of the original producer or has been (for consideration) assigned by such producer to a business representative or to any other party. This is essential, not only as a matter of justice to the assignee, but for the property interest of the producer.
If the producer is not in a position to secure for the assign under such assignment the property control in the copyright assigned, the returns coming to the producer, the author, in consideration of his copyright must of necessity be seriously lessened.
If an author has accepted a small price for his copyright for some small market, such as that of Australia, for instance, there is a direct business loss to him on each copy of the Australian edition which in coming into sale in this country would prevent the sale of a copy of the authorized American edition.
The acceptance of £20 from Leipzig or of £10 from Melbourne in full consideration of an assignment which was intended to be local would constitute but an unsatisfactory consideration if copies of these local editions were to prevent the sale of the American edition, which ought to produce for the author of a $1.50 book from $150 to $250 per thousand copies sold.
Further, if a publisher has purchased from an author for a fixed sum his American copyright, he has the right as the assign to secure the full property value of this. He has paid a large price for a large market.
If this market is interfered with by the invasion of copies of an edition coming from a small market for which a small price has been paid, the property of such publisher has been taken away from him. This is the case under the present law, the effect of which constitutes a legalized appropriation. The clause in the bill as drafted gives, as stated, the fullest possible facilities for importation. The door for the entry of supplies of copyrighted books ought assuredly not to be made any wider than is the case in the existing provision.
The provision of the existing law has the result of furthering by special enactment the business of the foreign author at the expense of that of the American publisher, and also, as explained, to the injury of the American author.
The owners of American copyrights are not asking for any special privileges, but simply for the recognition of their property rights in their copyright.
Mr. Wilcox. Mr. Chairman, may I now present to the committee the draft of the amendment which they asked me to prepare, and which I find is one that is very simply prepared, fortunately, owing to the explicit language of the bankruptcy act! This is a proposed amendment as to sections 23 and 24, relating to remedies and especially damages, and to sections 32 to 36, inclusive, relating to remedies and procedure. I think these sections should be brought together in the bill by moving sections 25 to 31 to another place, and I think also that there should be added a new section or some such provision as follows, which I have copied from the bankruptcy act, section 30:
All necessary rules, forms, and orders as to procedure and for carrying this act into force and effect shall be prescribed and may be amended from time to time by the Supreme Court of the United States.
I think that will save the committee very much time and worriment over details.
STATEMENT OF REGINALD DE KOVEN.
The LIBRARIAN. Mr. Chairman, Mr. De Koven is not able to be present, and he has asked Mr. Berry to present his statement.
Mr. BERRY. Mr. Chairman, Mr. De Koven had hoped to address this committee this afternoon in support of section g, but he is ill and not able to attend. He requested me to represent him. I therefore present his statement. I should like further to refer to the statement which has been made by some people that the composers in this country were not in favor of section g. As far as Mr. De Koven is concerned, he desires to state most emphatically that he is not only in favor of it, but hopes with all his heart that it will be adopted. I will now file Mr. De Koven's statement :
Mr. DE KOVEN. Mr. Chairman and gentlemen, having the honor to appear before you to-day, I beg to call your attention to section g of this bill, which reads as follows:
To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.
This clause, as you doubtless are aware, was inserted in the bill to give a long-needed protection to composers, who for years have suffered from the depredations of a number of mercantile companies and corporations like the Æolian Company, the Victor talking machine, the Edison phonograph, and others too numerous to mention, who have taken-I had almost said stolen—their copyright works without so much as saying " by your leave,” and grown rich on the sale of them. Of late, with the most stupendous impertinence and unblushing effrontery, they not only have not paid for the single copy of such works necessary to make their reproductions, but have actually demanded a free copy from the publishers in order that they may plunder the more easily and at the least possible expense. Their right to do this is that of the aboriginal man with a club—the same right that I should possess to knock down a man, were I strong enough to do so, and forcibly take possession of his watch and chain. But here the law intervenes to protect him, and the object of this bill is for the law to intervene to protect the unfortunate composer.
If I may be allowed to say so, gentlemen of this committee, it seems to me that the whole question of this bill and of this clause, which is the particular bone of contention, has been lost sight of in a mass of pettifogging chicanery, specious subtleties, and legal quibbles, invent:d and fostered by those whose special interest it is that this bill should not pass. But I take it, gentlemen, that the real principle and basis of the matter in hand is the difference between right and wrong, the difference between honesty and dishonesty, the difference between national honor and national dishonor! Why should the United States, now the first of the great nations of the world, be the only one not to pass a decently honest copyright bill? Why should the United States, which has made itself foremost in the world for inventions of every kind by the liberality and justice of its patent laws, discriminate against its composers by a refusal to pass a copyright law properly protecting them? The more particularly so, as I understand, that the passage of such a law has been recommended to Congress by the United States circuit court of appeals in the southern district of New York. What may or may not be done in Germany or Turkestan, in Switzerland or Arabia, in regard to the status of those universal pilferers, the mechanical-instrument makers, does not, I conceive, enter into this argument at all, as the United States in its power and majesty is amply able to decide for itself what is just and equitable, honest and right, without reference to what other nations may or may not do under similar conditions.
s take it, gentlemen, in the first place that the proposed bill of Mr. Currier is a good bill. My own opinion in the matter is amply indorsed by all my eminent confreres in the profession, like Victor Herbert, John Philip Sousa, Prof. Horatio Parker-to name but two or three of the many who are deeply, nay vitally interested in the passage of this measure.
I am advised by eminent counsel that it is entirely competent for the United States in Congress assembled to pass such a bill, a point which, I believe, has been raised in opposition to it. Into legal technicalities of this kind I do not propose to enter. But from an ethical standpoint it would seem to me to be simply futile that the Congress of the United States should have full power to protect one class of citizens and be powerless to protect another. Further, there can be no question as to the necessity of the bill, at least so far as the protection of the composers of the United States is concerned, for the present law does not protect them in the way that they have every right as United States citizens to demand that they should be protected.
Without trespassing too far upon the time of this committee, I should like to call attention to a few of the points that have been raised as arguments against the passage of this measure by those who desire to prevent its becoming law. As a homely illustration in equity, let us suppose that some agricultural implement should be invented that would double the output of his land for any farmer. Would it be fair that the inventor of that implement should take to himself the whole of that added increment without any benefit to the farmer himself! I think not, gentlemen. But that is exactly what the Victor talking machine and the other corporations of that ilk are doing to the American composer to-day. Again, I would ask, for what reason does an intending purchaser go, let us say, to the Victor talking machine and purchase one of their rolls? Is it for the purpose of admiring the roll as a work of art or framing it to hang on a wall ? No, gentlemen, it is to hear the music-mark the word, to hear it-and the music is heard, that music which is the property of the composer, which emanates from his brain, is heard just as much on the Victor talking machine or the Æolian pianola or on any other mechanical instrument as it is if played on an ordinary piano from sheet music bought from a reputable publisher. The purpose of music, the whole purpose, is to be heard.
Again, I am told that the composer should be grateful to these predatory gentlemen for advertising his works, for bringing them to the notice of the general public. The manager of the Æolian company told me on one occasion that the previous year they had sold about $125,000 worth of my compositions. My regular royalties on this amount would have been nearly $20,000. I think, gentlemen, you will admit that this is a pretty large item for advertising in the budget of any composer who writes for a living.
Again, I am informed that these Edison phonographic records, the Victor talking-machine records, and the various and sundry records on perforated paper sold by these various companies are not my writings under the meaning of the law. If they are not, who, then, wrote Robin Hood” when issued in the perforated paper roll or “The Serenade” when given out in a Victor talking-machine disk? I think that any man of sense will allow that any author has the right to choose his own medium for the record of his thoughts, and should I and other American composers elect to write only on perforated paper rolls will anybody here inform me whether the United States would refuse us a copyright? And then where would the mechanical instruments be?
Again, I am informed that in bringing music to the attention of many people who have not known it before that these mechanical devices are of benefit to the general cause of music. This may or may not be so. I personally very much doubt whether any mechanical device ever aided the cause of true art. But even were it so, there is no reason why the many should be benefited at the sole expense of the few least able to bear it.
Furthermore than this, I can not suppose, gentlemen, that even were this bill to be favorably reported and passed that these various firms, whose business capital aggregates many millions, would go out of business. It only means that their profits would be a little less; that they would be able to build fewer million-dollar stores on Fifth avenue, in London, in Paris, and elsewhere. All that we ask is that we should be paid by them for the use of our music, which represents the output of our brains, the same royalties that our ordinary publishers pay us.
And this brings me to another point. The whole principle at the basis of the interstate-commerce law, the whole rationale of the suits now being brought by the United States against certain great corporations, is unfair discrimination between various classes of citizens in carrying on their legitimate business. I ask you, gentlemen, is it not the most unfair discrimination that one class of merchants, the publishers, should be obliged to pay the composer for the use of his brain while another class be allowed to use his brains without payment? Why should one pay if not the other? Why, indeed, should the composer be paid at all, poor fellow? Let him follow art for art's sake and starve in some garret like another Chatterton.
If I may be allowed to remark, gentlemen, it seems to me, as one who has given the subject some study, that the whole matter is so absolutely simple and straightforward that there is no argument to be made about it; that no intelligent legislator having the best interests of his constituents and the country at large at heart could do anything but recommend this bill for passage without further comment or discussion.
I saw by the papers recently that a large corporation had been formed, principally backed by one or two of the big mechanical instrument makers, with a large capital, for the purpose of defeating this measure. I ask you, gentlemen, for what purpose is it necessary to raise large sums of money to defeat a measure before Congress? What is to be done with these large sums of money when raised? But we composers have made no corporation, we have made no subscriptions of large sums of money-we simply come over here at our own expense, having the honor to address this committee with confidence in the justice of our cause, with confidence in the ability of the gentlemen before whom that cause will be pleaded, with confidence that as American citizens we have the right to appeal to the United States of America for protection against what I consider the grossest injustice, the greatest wrong that has ever before in the world's history been perpetrated in any country against any one class of citizens. And if, in view of the fact of these large sums raised by these wealthy corporations to defeat this bill, I ask you, gentlemen, with all due respect, with what dignity, with what sense of selfrespect you can again greet your constituents and say, “ We have reported this bill unfavorably; we have cast our vote on the side of injustice against justice, of wrong against right, of public dishonor against public honor," for I repeat, gentlemen, this is no question of individual interests, either of the Music Publishers' League or the Instrument Makers’ Association, or even of the poor oppressed composer—it is one, rather, of national polity, of national honor, and as such you must all agree, gentlemen, as intelligent legislators, that this measure must be reported favorably and must be passed.
I thank you, gentlemen, for your attention. The LIBRARIAN. I understand that it is the preference of those who oppose these provisions, which perhaps it might be well to refer to as paragraph g, that the proponents of them should be heard first. I understand that Mr. Burkan will represent the proponents of the bill at the outset in discussing the questions of constitutionality which were raised by Judge Walker last June.
Mr. PETTIT. Mr. Chairman, may I say a word before the clause is discussed in regard to another suggestion? I notice this in looking over it, that it seems that clause g might very probably interfere with the act regarding the grant of patents. The section says that the copyright secured by this act shall include the sole and exclusive right (g) to make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, etc. It is quite probable that appliances of that kind may be patented later, that this might be so construed as meaning to take precedence hereafter of any invention which might be specified in that clause, as it says that the copyright secured by this act shall include the sole and exclusive right to make, sell, and distribute, etc.
The LIBRARIAN. I might remark that any communication I receive from Mr. Fuller he remarks upon that possible interpretation, and