have not the power to enact this legislation. He asked someone under what authority does Congress protect dramas against dramatic representations. Under the copyright acts of 1856 and 1897 Congress protected dramatic and musical compositions against performance and representation. These acts extended the author's right beyond reproducing in writing and the protection beyond that against infringement in writing.

When a drama is produced on a stage, you do not see a reproduction of a writing upon a screen. You see and hear the ideas of the author reproduced by means of dialogue and action. Take the case of a pantomime. The ideas of the author are reproduced by means of gesticulations. There is no word spoken. That is a dramatic composition, and what is the purpose of the drama? The main purpose is to produce it. Many dramas have no value for literary purposes. The entire value lies in the representation of them. The principal profits that the dramatist derives is from the public production of that drama. What was the object of the framers in inserting the copyright clause in the Constitution?Their object was to promote progress and science. They sought to encourage literary men to write, to create, so that the general public might be benefited. They knew that to stimulate a man to write or produce it was necessary to give him exclusive rights in his property, and in the different cases I shall cite you will find that the only test the Supreme Court has applied in determining whether an intellectual creation was a writing was whether it tended to promote the progress of science and the useful arts. P

In the Sarony case the Supreme Court overrules the contention that a writing is script, or that the right of an author is limited to a reproduction of his intellectual productions by a writing. Our opponents contend that because a perforated roll or phonograph record can not be read it is not writing," and rely upon a sentence in the Sarony case which reads:

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By writings in that clause they meant the literary productions of those 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.

They contend, therefore, that a perforated roll is not a writing because it can not be read and the idea embodied therein is not visible. The Supreme Court did not say that. The Supreme Court said that a writing meant the literary productions of the authors. The Supreme Court declared statuary, engravings, prints, and charts within the list of subjects to which Congress has properly given protection at different periods of time. The court uses the word "includes." The court did not intend to exclude anything when it used the word "includes." Take a work produced in Sanscrit; it is visible, but the ideas are not visible. You do not understand them, and the court did not say that the object must be visible. The court said that the ideas must be visible. When you take a perforated roll which is sold as music, in which the music of the composition is strictly followed, each perforation representing a note, the value of each perforation corresponding to the value of the note, that is a writing, because the moment that is placed upon the machine to which it is adapted and started in operation it reproduces an intellectual

production. The moment you hear that reproduced, it becomes capable of being identified.

Mr. LEGARE. To take your illustration of the perforated roll, one man can perforate a roll, another man make the machine, and a third man put the machine to work, and then the machine reproduces the music. Now, who reproduces the music, the man who made the roll, the man who made the machine, or the man who made the machine go?

Mr. BURKAN. The roll.

Mr. LEGARE. But you say you can not read it.

Mr. BURKAN. You can identify it.

Mr. LEGARE. Then, it is absolutely worthless until you put it on the machine. Can not the inventor make himself read the roll? Mr. BURKAN. Yes; but the moment that roll is placed in the machine

Mr. LEGARE. But some other person puts it there.

Mr. BURKAN. He is the reproducer, the man who makes the roll, because that work embodies the intellectual production. If they take Mr. Victor Herbert's Pan Americana, that roll will represent nothing else but just that composition.

Mr. LEGARE. But it is absolutely worthless unless some one else puts it in the machine.

Mr. BURKAN. A drama is absolutely worthless unless it is put on the stage. Take the score of an opera; the orchestral score is written for performance by different musical instruments. The score in itself is unintelligible, but the moment the musicians perform it that moment it becomes intelligible, and I claim that a perforated roll is more distinguishable

Senator SMOOT. The machinist could read it before you. Do you claim that you can take a perforated roll and read it?

Mr. BURKAN. I do not. I do not base my argument upon that. There is nothing in the law or in the Constitution that requires a thing to be read to be entitled to copyright protection. The only test is, Does it embody an intellectual production? What does the roll represent?

Mr. HINSHAW. I suppose a phonographic disk could not be read? Mr. BURKAN. I admit that, but that phonograph disk is made in this manner: They take a wax cylinder, to which is attached a horn. A man takes a given musical composition, we will say, the "Stars and Stripes," and he plays it into that horn, and the sounds coming from the instrument impress themselves on the disk by means of indentation and lines, and that disk, when used in connection with the instrument, reproduces but one musical composition, and that disk embodies an intellectual production.

Mr. WEBB. It is the air, is it not?

Mr. BURKAN. It is the sound.

Mr. WEBB. But one sound may be played on a steam piano and another on a violin. It is the air, is it not?

Mr. BURKAN. Yes. Music is addressed to the sense of hearing; it appeals to the ear. When a piece of music is performed it appeals to your ear. It is the sound, the melody, the sound or combination of sounds, the succession of collated sounds, a succession of harmonies, that constitute a musical composition. Now, take the case

which was decided the other day by Judge Buffington-Edison Company v. Lubin. It appeared that 4,500 pictures were taken in rapid succession of the launching of the yacht Meteor. These pictures were reproduced on a positive celluloid sheet and were entitled "A Photograph Christening of the Launching of Kaiser Wilhelm's Yacht Meteor," and duly copyrighted. It appeared that this celluloid sheet could not be read, could not be distinguished by the eye. The purpose of it was to reproduce it upon a screen by means of a magic lantern and to give to its reproduction the appearance of a moving picture. That was the only purpose of the celluloid sheet. And the court held that although this celluloid sheet could not be distinguished and was not visible to the eye, the moment it was used in connection with the magic lantern to which it was adapted each one of the pictures became distinguishable and visible upon reproduction thereof, and was therefore a "photograph," entitled to protection under the copyright act.

Mr. BONYNGE. Then it became a reproduction of an intellectual idea, the same as the performance of a drama is the reproduction of an intellectual idea, the same as a perforated roll when it is put into a machine becomes a reproduction of an intellectual idea.

Mr. BURKAN. Yes; precisely.

Mr. CHANEY. It has a visible expression when it is reproduced. Mr. BURKAN. Yes; it becomes intelligible to the mind.

A Gentleman. Suppose you take a blank sheet of paper and you use some invisible ink, you have to use some acid or some light in order to reproduce it.

Mr. BURKAN. Yes. It would be entitled to copyright, provided it represented an intellectual conception.

A Gentleman. That it is visible to the eye has nothing to do with it. Mr. BURKAN. No.

Mr. BONYNGE, It is visible to the intellect. That is the point.

Mr. BURKAN Now, as the court said in Millar v. Taylor, it is the intellectual production that is entitled to protection, and not the means or the vehicle for indicating to the senses the ideas embodied therein, the ideas of the author. The purpose of printing is to indicate to your senses the ideas embodied in the paper; so in the case of perforated rolls or phonographic disks it is but another method of conveying to the mind the ideas of the author embodied therein. Mr. HINSHAW. It may be the sense of touch or hearing or sight. Mr. BURKAN.SFor the blind they have raised characters. The blind man does not see anything, but the moment he touches those raised characters they convey an idea to his mind, the ideas of the author. In the Sarony case the court said that a photograph is entitled to be protected, not because it is visible or invisible, but because the photograph is representative of an intellectual conception, because the operator exercised his ingenuity. The court said the operator had arranged the draperies, had created the pose, and the photograph embodied the operator's intellectual conception.

Mr. BONYNGE. Would you contend, in reference to the use of the word "visible" in the opinion, that what the court intended was that the idea should be conveyed to the minds of men regardless of what sense of man conveyed that idea to his intellect?

Mr. BURKAN. Precisely so. That is our contention, and the Supreme Court sustains our contention. The court says this photograph is entitled to protection because the operator created something. This photograph is a representation of an intellectual conception, and in the case of an ordinary snap shot, where the man creates no pose, where he exercises no ingenuity, it says in such a case a copyright may be no protection, and it uses the following language: The third finding of facts says, in regard to the photograph in question, that it is a useful, new, harmonious, characteristic, and graceful picture, and that the plaintiff made the same entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit. The findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish, and sell.

So this case was not decided upon the theory that it was visible or invisible, but upon the theory that the plaintiff who had taken this picture had exercised his ingenuity; that he had created something. This kind of writings came up in the trade-mark cases, and the Supreme Court said in that case that although a trade-mark is visible, yet it was not entitled to protection because it was not the embodiment of an intellectual production-an intellectual creation. It must be an intellectual creation to be protected by copyright. The court says that the writings to be protected are the fruits of intellectual labor embodied in the form of books, prints, and engravings and the like. The Supreme Court says it is visible and as such not entitled to protection, because it is not an intellectual conception.

Mr. BONYNGE. That is the case in which the court held that we could not protect trade-marks under that section of the Constitution, but if we protected them at all it must be under the interstatecommerce clause.

Mr. BURKAN. Yes. So you see in all these cases the criterion is, "Does the production in question tend to promote science and the useful arts?" and that is the only test, not whether it is visible or invisible, not whether it can be read.

Mr. BONYNGE. You mean visible in the ordinary signification of that word?

Mr. BURKAN. Yes; they use the word "visible" in the sense that it must be capable of being identified or understood by one of the senses, by the sense of touch, hearing, or seeing.

The CHAIRMAN. By the appropriate sense.

Mr. BURKAN. That is the idea. In Holmes v. Hurst (174 U. S., 82-89) the rule is laid down by the court as follows:

It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes.

So you will see that the courts in passing upon this question of what is writing within the Constitution always decided upon the principle that the subject-matter which Congress has power to pro

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tect is the embodiment of an intellectual production. Let us see what the understanding of copyright was at common law. Blackstone says in his commentaries:

The identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method is taken of exhibiting that composition to the ear or the eye of another by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited.

That was the understanding of common law. That was the understanding when the Constitution was framed. That was the understanding of the men who framed that Constitution, and it is in the light of that understanding that

clause in enacting this legislation. You gentlemen must interpret this

Mr. HINSHAW. Is there any other device to which this section g is intended to apply except the perforated rolls and photographic disks? Mr. BURKAN. Those are the only ones known to us to-day.

Mr. HINSHAW. That language may cover some new inventions. Mr. BURKAN. That is the purpose.

There are

Mr. JOHNSON. There is a new invention on the market. two. One has been heard of in the magazines, called the dynamophone, and there is still another, the telegraphophone, which has an important bearing on this question, on which I will speak to-morrow or Monday, if so desired.

Mr. BURKAN. This perforated roll or cylinder is sold as music. It is listed in catalogues as music. Its value is dependent upon the name of the author who composed the piece that it reproduces, the reputation of the author and the merit of the composition which it is adapted to reproduce and not upon the material of which it is made. It sells as Victor Herbert's or as John Philip Sousa's composition. That is its value, and the man who buys it buys it because he knows it embodies the intellectual creation of a good author. The value of that roll is not dependent upon the materials used in the manufacture of it. The man does not care about that at all. What he wants is a roll that embodies the tunes of John Philip Susa's Stars and Stripes, or any other composition.

Mr. HINSHAW. In other words, the perforated roll stands to the original production from the man or author in about the same relation as the printing press stands to the idea.

Mr. BURKAN. That is right.

Mr. BONYNGE. As the printed book stands to his original manuscript.

Mr. BURKAN. To the original idea.

Mr. BONYNGE. Yes.

Mr. BURKAN. The purpose of the sheet or roll is to convey to the mind of the man the ideas of the author. You take a man who has no knowledge of the art of music; who can not read sheet music. A sheet of music is unintelligible to him, but that same untutored mind, the moment a disk is used in connection with the proper machine and reproduces the melody embodied therein, will recognize it.

Mr. WEBB. Is that the idea, the melody or the air? Is there any idea in melody or air unless you name it?

Mr. BURKAN. Yes.