Mr. WEBB. Is there any idea when you hear a bird sing? Is there an idea expressed through that song of the bird?

Mr. BURKAN. Yes.

Mr. WEBB. Unless you know the name of the bird, and you associate the word song, usually, with the mocking bird.

Mr. BURKAN. Yes; but it would be a creation if sung by a human being. Those notes have musical value. They represent something. Many beautiful compositions have been written on those two or three notes which a bird will give forth. Those two or three notes may give inspiration to a composer, who may write upon them as a basis a beautiful song.

In the case of the National Telephone News Company v. The Western Union Electric Company (119 Fed. Rep., p. 297) the court says:

Nothing, it would seem, evincing in its makeup that there has been underneath it, in some substantial way, the mind of a creator or originator, is now excluded from copyright protection.

This shows that for a work to be entitled to copyright protection does not depend upon being visible or invisible, but whether it represents an intellectual creation, whether the man who created it exercised his ingenuity, whether that man created something. The conclusive answer to this objection that is raised here, that you have not power to enact this legislation, was given more than fifty years ago in the act of 1856, whereby Congress protected dramatists against a public representation of their dramas, because then you enacted a principle of copyright that when a man copyrights a dramatic composition his rights are not limited to reproduction in writing only, but extend to any representation of that composition, and since 1856 that has been the law. The Supreme Court passed upon it in the case of Daly v. Palmer. The question was not raised directly, but the court permitted the plaintiff to recover several thousand dollars damages for an unauthorized representation of a drama, and the court naturally would not have allowed the plaintiff to recover unless it believed that Congress had the power to enact that legislation.

Mr. BONYNGE. Has that question ever directly arisen?

Mr. BURKAN. Not on the constitutionality. It has not been raised, but for more than fifty years the power of the Congress to give this protection has been recognized. It has become an established principle of law, and I say it is too late in the day for Congress to say that it had not the right to grant that protection, when the courts have not assailed that right, and when the people have recognized that right. It is a serious thing to say to this Congress that it had not such right, and I never yet heard of any legislature surrendering any right that it believed it had, especially when the courts have recognized that right and the people have respected that right.

Mr. BONYNGE. Especially when it has been exercised and concurred in.

Mr. BURKAN. Yes; and for over fifty years. It is too late in the day for Judge Walker to come to you and say: "Gentlemen, the act of 1856 is unconstitutional." I am very well convinced, and I believe you gentlemen will not surrender that right at this late day.

In conclusion I desire to call the attention of the committee to a decision of Justice Marshall in the McCulloch case, wherein he says that the Constitution was intended to endure for ages and to be

adapted to the various human crises. He says the Constitution must be adapted to the changing circumstances of our national life, and that that instrument, written so many years ago, was intended to endure for generations to come; and if now a question is presented whether you can protect an author in his creations by prohibiting an infringement or a reproduction of his property by a method unknown when the Constitution was framed, under that ruling of Justice Marshall you have a perfect right to enact such legislation.

I herewith also submit my brief on this question, which is as follows:

To the Senate and House Committee on Patents.

ARGUMENTS IN SUPPORT OF COPYRIGHT EXTENSION TO DEVICES ADAPTED TO REPRODUCE MUSICAL WORKS.

Section 1, subdivision (g) changed at our request to read, "To make, sell, distribute, or let for hire any device, contrivance, or appliance adapted in any manner whatsoever when used in connection with any mechanism to reproduce to the ear or to cause the said mechanism to reproduce to the ear the sounds forming or identifying the whole or any material part of any work copyrighted after this act shall have gone into effect, or by means of any such device, contrivance, appliance, or mechanism. publicly to reproduce to the ear the whole or any material part of such work," extends the copyright to phonographic devices, such as perforated rolls, cylinders, disks, and records, used in mechanical processes of reproduction. This form of reproducing literary works has become important only within recent years, but its use has now assumed such proportions that the object of our copyright policy, i. e., to secure to the intellectual worker the full fruits of his labor, will largely fail unless he is protected against the unauthorized appropriation of his work by means of these mechanical devices.

The power of Congress to enact this legislation has been challenged on the ground that these phonographic records, disks, cylinders, or perforated rolls, though they contain some form of record of an intellectual product, are not "writings' within the clause of the Constitution authorizing copyright legislation.

The clause in question is section 8 of Article I of the Constitution, which provides that

. "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."

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The word "writing" is used here solely with reference to the author's product; to indicate the thing which may be the subject of copyright. The word writing" is not so used as to indicate that the writing shall be protected only against other writings or that the author's rights in his writing shall be limited to the right to reproduce it by other writings.

As to the extent of the author's rights the Constitution uses the most comprehensive term possible, "the exclusive right;" that is, all rights.

As to the extent of the protection authorized the language is equally comprehensive, "securing;" that is, effectually guarding and insuring.

This cursory glance at the language of the Constitution would seem to show that the objection based on the word "writing" can not properly apply to section 1, subdivision g. For that subdivision does not propose to make phonographic devices a subject-matter of copyright; it does not define the subjectmatter of copyright at all. The subject-matter of the copyright is the work; in our case the musical composition. This subdivision simply deals with a form of reproduction of the subject-matter of copyright, or, in other words, a form of reproduction of the "writing" indicated in the Constitution.

The subdivision states one set of rights that shall be secured to the author in his work. Its constitutionality does not depend upon the question whether phonographic devices are writings, but whether the securing to the author of the right to make and sell these devices for reproducing his writings is covered by the words "secure" and "exclusive rights" that are employed in the constitutional clause in question.

The words "exclusive right" are broad enough to include every profitable · use that can be made of the author's work.

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The word secure is broad enough to include any form of protection that may be found necessary to make effectual the exclusive right.

It would do violence to these broad expressions to uphold the contention that the author's rights must be limited to the right to make duplicate writings, and his protection can not go beyond forbidding the infringement of his rights by means of other writings.

In the interpretation of this clause of the Constitution the United States Supreme Court has considered the construction placed upon it by the members of Congress in the acts of 1790 and 1802, because those men were contemporaneous with the formation of the Constitution, and many of them were members of the convention that framed it. (Lithographic Co. v. Sarony, 111 U. S., p. 53.) In like manner we may derive some light as to the meaning of the language used in this clause from the copyright acts passed by the State legislatures shortly before the adoption of the Constitution.

These acts were the result of a resolution of the Colonial Congress, adopted in May, 1783, recommending to the several States the enactment of laws to secure to authors the copyright of their books. 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 should be secured in receiving the profits that may arise from the sale of his works." (Georgia, New York, Connecticut, New Jersey.)

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'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.)

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The subject-matter of copyright is designated as "works" in the acts of Connecticut, New Jersey, Georgia, and New York; as that which is produced by the labor of his (the author's) mind," and "books, treatises, and other literary works" in the acts of Massachusetts, Rhode Island, and New Hampshire. The acts of Connecticut, Georgia, and New York use the word "writings as works," both in the same sense.

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as well

These laws were passed in the years 1783-1786—that is, between one and four years prior to the convention which framed the Constitution. The declarations of policy and principle contained therein were necessarily familiar to the framers of the Constitution. The effect of that instrument would be to supersede those State laws by Congressional legislation, and as the same legislatures who had so recently enacted copyright statutes were expected to consent to the superseding clause, those who drew that clause may be supposed to have taken into consideration the expressed views of the State legislatures. It is probable that the intent was to put into the concisest possible language a mandate to Congress broad enough to embrace all that the States had declared for.

The intent, as it may be inferred from these circumstances, was to empower Congress to carry into the execution those principles of natural justice and equity which require that those who produce by the labor of their minds be secured in receiving all the profits which may arise from their works.

In the case of Lithographic Co. v. Sarony (111 U. S., 53) the United States Supreme Court points out that the framers of the Constitution may be supposed to have understood the nature of copyright and the object to which it was commonly applied, because the subject had then recently been thoroughly discussed in the judicial tribunals of England, and these discussions had attracted wide attention; and the court states that copyright as its nature was then commonly understood, and as it then existed in England, was the exclusive right of a man to the production of his own genius or intellect."

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This statement of the court is strongly enforced by the language that we have quoted from the State copyright laws, which is in part identical with the language that occurs in those important English copyright cases to which the Supreme Court refers.

If such was at the time of the adoption of the Constitution the common understanding of the nature of copyright, if it is shown that this common understanding was expressly adopted by the men who composed the lawmaking bodies of the States, the bodies which passed on the Constitution and whose leading members were among the framers of that instrument, it is safe to conclude that that understanding represents what was intended to be expressed in the copyright clause.

Those words of the clause which state the extent of the right and the manner of protection-" to secure the exclusive right "-are as broad as that common understanding-they include all rights, all the fruits and profits of intellectual labor, and all means necessary to effectually protect these rights.

The supreme object sought to be attained by the clause was "to promote the progress of science and the useful arts." It entered into the views of the framers that it is the interest and policy of an enlightened government to promote the dissemination of learning by inducing intellectual labor in works which would promote the general knowledge in science and the useful arts. They sought to stimulate original investigation whether in literature, science, or art, for the betterment of the people, that they might be instructed and improved with respect to those subjects, and to prompt the exertions of the individual in that direction. To accomplish this end they recognized that it was necessary to grant to the author "exclusive rights" to the product of his exertions, and consequently conferred upon Congress the power to effectuate this purpose. This power must be construed in the spirit in which it was given. A large discretion was intended to be lodged in the Congress with respect to the subjects which could properly be included within the constitutional provision and the nature of the protection to be given to stimulate authors and inventors, this discretion being bounded and circumscribed only by the general object sought to be accomplished.

But it is objected that the word "writings is incompatible with a broad construction of the clause. The objectors claim that it narrows down the whole sphere of copyright protection; that it restricts not only the range of its possible subject-matter, but the extent of the right and the manner of protection. They manipulate this word so as to make it overshadow the entire clause, and make the clause appear as if it read: "By protecting against infringement, in writing, the author's right to reproduce his writings in writing." In other words, they claim that under this clause of the Constitution Congress can not protect the author against any form of reproduction of his works except such reproduction as assumes the form of a writing. So that a dramatic composition can not be protected against public performance thereof, a lecture against its public oral delivery, a piece of statuary against a photographic reproduction thereof, a painting against a stereopticon reproduction thereof by means of a magic lantern on a screen.

And for this view they hope to find support in the Sarony case. But in the Sarony case the court points out that the First Congress of the United States, sitting immediately after the adoption of the Constitution, did not in the act of 1790 construe the word " writings" in its literal sense—that of actual script-but made maps and charts subjects of copyright, and that the Seventh Congress, in the act of 1802, added prints, etchings, cuts, and engravings. The court then remarks that "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."

The court here puts its finger on the point that must defeat all attempts to claim a literal construction of the word "writings." That point is that, literally construed, it would exclude printed matter and everything except script by the author's hand.

But if a literal construction of this word is too absurd to be worthy of consideration, if a meaning broader than the literary sense must necessarily be accepted, is there any reason to stop short of that broadness for which the State legislatures had declared and which was then the common view, as the Supreme Court says in this very Sarony case?

On the contrary, all the circumstances make it probable that the word was intended to cover all literary and intellectual productions. And in this con

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nection it may be mentioned as significant that a writing is broadly defined as a composure " in Johnson's Dictionary, the standard dictionary at the time when the Constitution was framed.

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In the Sarony case the court, after showing the enlarged definition of the word "author as signifying an originator," 'maker," one who completes a work of science or literature," says that "by writings in that clause is meant the literary productions of those authors."

What did the court mean by literary productions?

Congress has from time to time extended the number of subjects of copyright. In 1790 it named maps, charts, and books; in 1802 it added etchings, engravings, prints, and cuts; in 1865 it further added photographs and the negatives thereof, and in 1870 statuary, paintings, chromos, and models or designs intended to be perfected as works of the fine arts.

The decision in the Sarony case was written in 1883, and the court probably referred to all the subjects enumerated in the extended list of the act of 1870 when it said that Congress very properly has declared these (the literary productions of those authors previously defined) to include all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression."

The objectors to subdivision 1, g, have claimed that this sentence supports their position because it is said to restrict the scope of the word “writings to visible expressions of the ideas of authors.

But this claim is based on a misunderstanding of what the court said.
The entire sentence reads:

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By writings in that clause is 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."

Only the first part of this sentence defines what the Constitution means; the second part characterizes the acts of Congress as viewed in the light of the previous definition. The court finds that what Congress did was included among the things that it had a right to do. The court does not say that Congress had no right to do more; on the contrary, the use by the court of the word include necessarily implies that the things mentioned do not comprehend all that Congress would have a right to do.

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The things mentioned as having thus far been included, and properly included, by Congress among the subjects of copyright are further characterized as things" by which the ideas in the mind of the author are given visible expression."

The court does not say that this characteristic of being visible expressions is a requirement of the Constitution or that these things have been properly made subjects of copyright because they are visible expressions of ideas. The court simply states a feature common to all the things mentioned.

The court did not lay down a rule of construction or interpretation of this section of the Constitution for the guidance of Congress in enacting new copyright legislation or for the government of courts in passing on the same. It judicially approved the wide and liberal interpretation given by Congress to this section in extending copyright protection to the subjects enumerated in section 4952 of the Revised Statutes, viz, chart, engraving, cut, print, photograph or negative thereof, painting, drawing, chromo, statue, statuary, models and designs intended to be perfected as works of the fine arts, which under a narrow and literal interpretation of the word "writings" would not be entitled to protection.

The court had in mind and referred particularly to those subjects which the Congress had legislated upon up to the time of the decision.

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There is nothing in this Sarony decision to justify the opinion that the court meant to make the fact of being visible expressions" a necessary criterion of copyrightable subjects.

The court was considering the question as to whether the word “writing was broad enough to cover a photograph which had been adjudged in a finding of fact to have been representative of original intellectual conceptions of the author. The court held this photograph to be a proper subject of copyright, not because of the fact of its being visible, but because of its being an original intellectual production. The court remarks that in cases of photographs which do not come up to this requirement, but are the ordinary productions of photography, a copyright may be no protection; adding, however: "On the question as thus stated we decide nothing."