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makes the statement that it is not the machine that infringes any more than it is the printing press, and that the language, being susceptible of a wrong interpretation, should be modified.

Mr. PETTIT. Yes; and I was going to make the suggestion of an amendment along those lines, and was also going to suggest, in view of certain opposition that was presented here before at the June meeting regarding the laws as to compulsory licenses, as it seemed to be the impression among many or a number that this clause might preclude many of the manufacturers practically from manufacturing anything that was copyrighted. My suggestion of an amendment on those two points would be simply in these lines, if I may just read briefly this rather crude suggestion of an amendment, to add to clause g, at the end thereof, the following:

Provided, That nothing herein contained in clause g shall interfere with or supersede any rights under the patent laws: And provided further, That the owner or proprietors of the copyright as to the subjects included in this clause g shall grant license to any manufacturer upon the written request of any such manufacturer to make, sell, use, distribute, or let for hire any of the said devices, contrivances, or appliances upon tender of payment of a reasonable royalty for the same.

That is merely a very crude suggestion on the line of compulsory license.

Mr. BOWKER. I wish to say that on behalf of the American Copyright League I shall ask leave later in discussion, after the opponents have presented their case, to say some words in behalf of the general rights of authors. I shall ask leave also to submit as part of the record a statement, and perhaps some specific suggestions. I wish to call attention now to the suggestion made this morning by Mr. Steuart, that the substance of clause g would be served and be much simpler by adding to clause f some very simple words, which would cover the whole ground much more effectively, and I hope in the discussion of clause g that the substitute by attachment of the clause to clause f, suggested by Mr. Steuart, may also be considered.

Mr. SOUSA. Mr. Chairman, before the discussion proceeds I wish to call attention that I found this morning in Washington a composition of mine which was copyrighted in 1872, "Moonlight on the Potomac." That is thirty-five years ago. I was a little bit of a fellow, and I am not now a decrepit old man. I have children who are in their teens, and I think that the limit of the copyright might very justly be extended. That may possibly yet be of some benefit to my children.

STATEMENT OF MR. NATHAN BURKAN.

Mr. BURKAN. Mr. Chairman and gentlemen, I am the attorney for and represent the Music Publishers' Association. I represent also in a friendly capacity Mr. Victor Herbert, Mr. John Philip Sousa, and also the Baton Club, an organization consisting of musical directors and composers.

The CHAIRMAN. How much time do you wish?

Mr. BURKAN. From half to three quarters of an hour. I wish to devote most of my time to the constitutional question whether a perforated roll is a "writing" within the meaning of the con

stitution. I have also prepared briefs for the use of the members of this committee.

In reference to the phraseology of section 1, subdivision g, which has been criticised because it may be construed to interfere with patent rights, section g, when we had the conferences which resulted in this bill, we desired to have it modified so as to cover perforated rolls and phonographic cylinders, and counsel suggested that something in the form of subdivision g be adopted. I am willing to have it changed so as to have it read that the right of a copyright owner shall extend to the use of his composition for reproduction upon any mechanical device, and I shall submit an amendment to that effect during the day or on Monday.

The CHAIRMAN. I would suggest that so far as it now appears to me, it would be more important to argue this question as a matter of principle rather than as something relating to the form of an amendment.

'Mr. BURKAN. That is what I intend to do.

The CHAIRMAN. Whether, first, it is permissible under the Constitution, whether under clause g those devices are copyrightable, and upon the merits of the case, rather than the form of amendment which you desire and which the opponents object to.

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Mr. BURKAN. That is what I propose to do. Now, the power of this committee to report to the House and Senate this bill embodying subdivision g is challenged, because it is claimed that a perforated roll or phonographic cylinder is not a writing" within the meaning of the Constitution. In order to discuss this question properly, we must go back to the time of the framing of the Constitution. It was decided by the Supreme Court of the United States that the Constitution must be interpreted in the light of the common law and in the light of the knowledge that the framers of the Constitution had of the law of copyright, the principles and history of which they understood and which were familiarly known to them. We find that in 1769, prior to the adoption of the Constitution, the great case of Miller v. Taylor was decided. That case attracted wide and great attention in this country as well as in England. The question arose as to what the rights of an author were in his literary productions. The claim had been made that a writer had no common-law rights in his intellectual creations, that the moment he published a book or a composition or manuscript it became public property, and that case established the principle that an author had a common-law right of property in his intellectual creations, no matter what form that creation may take. I will cite to you on that proposition, and you will find it on page 22 of my brief. The court in deciding that case said:

The printing of it (the book) is a mere mechanical act, and the method only of publishing and promulgating the contents of the book. The composition therefore is the substance. The paper, ink, type, only the incidents or vehicle. The value proves it. And though the defendant may say, "Those materials are mine," yet they can not give him a right to the substance, which (on whose paper or parchment soever it is impressed), must ever be invariably the same. Nay, his mixing, if I may so call it, his such like materials with the author's property does not render the author's property less distinguishable than it was before; for, the identical work or composition will still appear, beyond a possibility of mistake.

Now, when we examine the Constitution in the light of the common law and in the light of the common understanding of the framers of the Constitution of the nature of copyright, and they were well acquainted with this decision, we must reach the irresistible conclusion that the word "writings" in the Constitution does not mean the script of an author, but the intellectual production of the author. Mr. Madison, one of the framers of the Constitution, wrote in the Federalist an extensive article upon this very clause of the Constitution, and he uses throughout the article the words "literary productions, intellectual productions," and he does not say that by "writings" they intended the script of the author. It is remarkable to note that the Supreme Court of the United States in discussing the Sarony case, on which our adversaries rely so much, says:

Nor is it to be supposed 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, chapter 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 photographs, so far as they are representatives of original intellectual conceptions of the author.

Now, if that was the understanding of these men who framed the Constitution, that what was protected by copyright was an intellectual production, then we are bound in interpreting this clause of the Constitution to interpret it in the light that those men understood it when they used the word "writings." You will find that the clause to which I refer is section 8 of Article I of the Constitution, which provides:

The Congress shall have the power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries.

This word "writings" is used solely with reference to the production of the author-the work or composition. This language was not so used in this clause as to indicate that that writing can be protected against another writing only, or that the author's rights are restricted to reproducing his writings in writing only. The intent was to protect his writings that is, the subject of the writings, the intellectual conception embodied in that writing-and whatever form that writing may take, as long as that writing is reduced to some tangible form, as long as the idea, the intellectual production of the author is capable of being identified, capable of being distinguished, then he has a right of property, entitled to protection under that clause of the Constitution. Take the perforated roll. I contend that that is just as much a writing as is a composition written in Sanscrit. If I should take a composition and have it written in Sanscrit and deliver it to you gentlemen for consideration, I venture to say that very few would be able to understand it, to distinguish, or to

identify it. But the moment you get a translator, get one who understands the language, to translate the same in English, then every idea embodied therein becomes visible, and that applies to a perforated roll and to these other mechanical devices.

Mr. LEGARE. Can anyone read a perforated roll?

Mr. BURKAN. No; but the moment you take the perforated roll, which embodies an intellectual production representing a given musical composition, operate it in connection with the mechanism to which it is adapted, and it reproduces but that composition. When that roll was made the manufacturer bought a sheet of music, we will say Mr. John Philip Sousa's "Stars and Stripes." The man who manufactures that roll follows strictly that composition. Every perforation corresponds to a note in the "Stars and Stripes" in sheet music notation. That perforated roll represents but one thing, namely, that musical composition, the "Stars and Stripes," and nothing else. When you take that roll and place it upon the machine to which it is adapted and operate the machine it reproduces the "Stars and Stripes" and nothing else, because it was made to embody that composition and nothing else. During the process of reproduction the ideas embodied in the roll become visible, capable of being identified and recognized by the ear.

Senator SMOOT. You mean it is a reproduction of that writing? Mr. BURKAN. Yes. The Constitution says you may protect the author's writings. The literal construction of "writings" means script, and in the Sarony case the court says:

The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century it is almost conclusive.

What did those men do in the act of 1790? They covered charts, maps, and books. A printed book is not a writing, if you are going to apply the literal construction, because a literal interpretation of writing" is script; and then subsequently Congress went on and protected statuary, engravings, photographs, and all the other subjects enumerated in section 4952, and what did the court say about

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that?

So, also, no one would now claim that the word "writing" in this clause of the Constitution, though the only word used as to subjects in regard to which authors are to be secured, is limited to the actual script of the author, and excludes books and all other printed matter. By writings in that clause is meant the literary productions of these authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression.

So clearly the intention was not to protect the script alone, but to protect the intellectual production. It makes no difference what form it is in, whether it be in Chinese, whether it be in the form of a drama, whether it be in the form of raised letters for the blind. It is still a literary production, an intellectual production. That is what the framers intended to protect, and when we interpret that clause we must interpret it in the light of that understanding and intention. To ascertain what these men understood by writings, it may be profitable and useful to refer to the copyright laws they had -enacted before they framed the Constitution. In 1783 the Colonial

Congress adopted a resolution recommending to the several States that laws be passed by the different States of the Confederacy to protect writers in their intellectual productions. Twelve of the thirteen original States passed copyright laws, and in most of these acts the object and policy of this legislation is set out by way of preamble. We find there the following declarations of principle and policy:

The improvement of knowledge, the progress of civilization, the advancement of human happiness, and the public weal of the community greatly depend on the efforts of ingenious persons in various arts and sciences. (New Hampshire, Rhode Island, Massachusetts, Georgia, New York, North Carolina, New Jersey, Connecticut.)

The principal encouragement such persons can have to make great and beneficial exertions of such nature must consist in the legal security of the fruits of their study and industry to themselves. (New Hampshire, Rhode Island, Massachusetts, North Carolina, Pennsylvania, Georgia, New York, Connecticut.) The principles of natural equity and justice require that every author shall be secured in receiving the profits that may arise from the sale of his works. (Georgia, New York, Connecticut, New Jersey.)

Such security (of the fruits of their study and industry to ingenious persons) is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the labor of his mind. (Massachusetts, New Hampshire, Rhode Island, North Carolina.)

These men who had framed these different laws did so between 1783 and 1786, a period of from one to four years prior to the time of the adoption of the Constitution. When they met at this constitutional convention it is not reasonable to suppose that they would be willing to abrogate any of the rights that had been guaranteed to their citizens at the time when this instrument was drawn. They were jealous of the rights of the different States, and when this Constitution was framed their idea was to protect and secure to authors the same rights they had had at common law and the rights they had in the States in which they resided.

So, to embrace all the rights of an author in the concisest language possible-they were not framing a code, this was to be a constitution-they used the concisest language possible; they used the word "writings," by which they intended to cover every form of intellectual creation. And it is in the light of that knowledge and understanding, it is in the light of what these different States declared for, that we must interpret the word "writings" in the Constitution, and the United States Supreme Court in the Sarony case, when it interpreted the word "writings" with reference to a photograph, said that we must interpret it in the light of what the framers understood copyright should protect, in the light of what they intended to do when they framed this instrmuent. Now, what did they intend to do? In their different States they said it was the policy of the law to protect men who create. They said the fruits of intellectual labor is property entitled to protection, and they used the word "works" in describing intellectual effort. Can we now at this late day say that the framers intended to protect mere script? The moment you extend writings to printed matter, the moment you say that a piece of statuary is a piece of writing it will be straining language to the utmost possible extent, yet Congress has protected statuary and no one has ever questioned its power. But the opponents to the bill say the author's right is limited to reproducing his writings in writing, and Mr. Bonynge put his finger upon the point that must defeat all attempts to convince you gentlemen that you

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