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Senator SMOOT. There are monopolies in the case of books.
Mr. SOUSA. You can no more restrict composition than you can the output of babies.
Mr. BOWERS. That is about so. My recollection is that the courts held some years ago that a roll was not a writing.
Mr. JOHNSON. That it was not sheet music within the meaning of the present copyright law.
Mr. O'CONNELL. Do you agree with the letter of Mr. Burkan when he says that all the music publishers of any consequence in the United States with the exception of two are members of the association?
Mr. BOWERS. No, sir; I do not, because it is not so.
Mr. O'CONNELL. And that one of those two had since come in? Mr. BOWERS. I mentioned the four or five houses who are not members of the association.
Mr. O'CONNELL. I will ask you also if the firm of Lyon & Healy, of Chicago, with which you are connected, and which is the largest distributer of musical instruments in the West, are not the western distributers of the Eolian Company?
Mr. BOWERS. We are Chicago distributers only.
Mr. P. H. CROMELIN. May I ask Mr. Bowers whether Lyon & Healy are not the western distributers for the Victor talking machine?
Mr. BOWERS. We are only one of a number of distributers; there are perhaps six houses in Chicago handling that machine.
Mr. CURRIER. Do you object to the provision in the bill for the payment of royalty, or to the amendment offered here on Saturday by the representative of the Victor talking machine-a license provision?
Mr. BOWERS. I do not think I heard that on Saturday. I do not know what it was.
Mr. CURRIER. It was, in effect, a royalty.
Mr. BOWERS. A royalty to the publisher and composer?
Mr. CURRIER. Opening the reproduction of music by any mechanical means, subject to the payment of a reasonable royalty. Mr. BOWERS. We have no objection to that.
STATEMENT OF MR. B. F. WOOD, REPRESENTING THE B. F. WOOD COMPANY, OF BOSTON, NEW YORK, AND LONDON.
Mr. WOOD. I want to emphasize especially the fact that I represent our London house, because the fact that we have an office in London brings me in touch with foreign publishers, and I know somewhat their side of the question. I have been traveling through Europe a good deal in the course of business nearly every year for the past fourteen years, and I know their side of the question. I have been obliged to answer to the best of my ability questions as to the defects of the present law, and I have assured them at the convention of the publishers of the world at Leipzig that I would use my best endeavors to bring about, if possible, such a condition. as would give them their just dues.
Mr. CURRIER. What are they claiming that they have not now? Mr. WOOD. This is not the subject of my text at all; I merely said that in passing. I merely say now that the foreign publishers would
be perfectly satisfied with the present bill, because they think it is a decided improvement over the old law.
Mr. CURRIER. Yes; but they will not operate under this law.
Mr. CURRIER. Do they want copyright protection against mechanical reproduction?
Mr. Wood. I am not speaking of that. I am speaking of section g. Senator SMOOT. Is your English firm satisfied with paragraph g of section 1 of the bill?
Mr. Wood. Perfectly satisfied; but we do not concede that it should. be possible to give the right for each manufacturer of mechanical instruments to use the property of any composer without the composer's consent even upon payment of royalty. That is one of the exclusive rights belonging to the composer, that he should have the right to decide what he wishes done with his work-to which publisher or to which manufacturer he should give the right of publication and distribution. It would be an act of injustice to put any other interpretation upon the phrase "exclusive right."
Mr. CURRIER. The composer has no rights now, and we are proposing to give him rights. Can you suggest any argument why reasonable conditions should not be attached to that gift-though perhaps I ought not to call it a gift?
Mr. WOOD. Pardon; I quite differ with you. But whether we have any rights to be protected, I think the argument of Mr. Burkan in regard to writing is just as applicable to the present law as to the proposed law, and I shall so continue to hold until the decision of the Supreme Court. One of the opponents expressed to me yesterday the very thought that to me was so pertinent and strong that I at once made a memorandum of his words, because I thought they were a very clever statement of our position: "What the publishers really want is a clearer statement of that which already belongs to them." We do not ask anything else. We only want a clearer statement of that which already belongs to us. I said, "That is the very thing. Why don't you let us have a clearer statement? We do not want anything more than has absolutely been given."
Mr. CURRIER. Then we can settle this very quickly by eliminating paragraph g.
Mr. WOOD. I am perfectly willing to have that eliminated, so far as I am concerned.
Mr. CURRIER. Are the people you represent-the music publishers-willing?
Mr. WOOD. I can not speak for all the music publishers. I am not a public speaker, and only have consented to appear here to try to convince you that it was impossible to make a combination or trust in the music business just as impossible as can be. You can not do it. It has been said that a new publisher and composer are born every day. One gentleman has said there is no chance for a new composer. Perhaps I can refute that from my own experience. My catalogue is made up of composers unknown a few years ago, with probably a few exceptions, Mr. Chadwick among them. So my own experience at least tends to prove that it is not possible to make a combination and that no trust can interfere with my rights, but I can go ahead as I choose.
Mr. CROMELIN. May I ask Mr. Wood a question? Mr. Bowers, a member of the firm of Lyon & Healey, has just made the statement that he does not appear as the representative of the Eolian company. I would like to ask you whether he did not approach you— not once, but half a dozen times--and beseech and endeavor to get your firm to sign this contract? You told me so yesterday. Mr. WOOD. That is perfectly true, if I may explain.
Mr. CURRIER. You have the right to explain.
Mr. Woop. The explanation is this: As I understood it, the idea at the foundation of that contract was that we should render mutual assistance to carry out our purposes and protect our rights. They were anxious for me to come into it, supposing that I might have some influence. But there never was any suggestion in my mind that we had formed a combination. I have talked with other pub-lishers, and talked with one of the largest publishers at this hearing recently, and he was surprised at the suggestion that we had formed a combination. That never was in mind at all.
Mr. CROMELIN. May I ask Mr. Wood another question, as he is thoroughly informed on this subject? He tells us he has made trips to Europe every year for several years. May I ask whether the English Publishers' Association have any relations with the American association, and whether or not Ricordi & Co., of Milan, Italy, the largest publishing house there, have any relations with the American association? Mr. Ricordi told me he was a member of the association. That is why I am asking.
A GENTLEMAN. He is not a member.
Mr. WOOD. May I answer?
Mr. CURRIER. I do not think you need to go into that. We do not care about that.
STATEMENT OF MR. GEORGE W. FURNISS.
Mr. CURRIER. Please state whom you represent. Mr. FURNISS. I am the special committee on copyright of the Music Publishers' Association of the United States. I am personally connected with Charles H. Ditson & Co., of New York; J. E. Ditson & Co., of Philadelphia, and the Oliver Ditson Company, of Boston. The Ditsons are music publishers and probably one of the oldest houses in America.
We are associated, Mr. Chairman and gentlemen, with fifty-two or fifty-three other publishing houses located in various parts of the United States-Boston, Philadelphia, Brooklyn, New York, Chicago, St. Louis, etc. They occupy various classes of publishing. Some publish the light, popular music of the day, but only a few of them. Others publish extremely classical music and standard music. Others make a specialty of band and orchestra music, and others publish music for small instruments-the violin, guitar, mandolin, club arrangements, etc. We are not all in the same class, but we are all music publishers. The house I represent does not aim to publish the popular music of the day. We keep out of that altogether. That is done by other houses.
We took an active part in the conferences called for the purpose of furnishing suggestions in regard to framing and obtaining the
passage of a bill, and we have been sincere all through these transactions, Mr. Chairman and gentlemen. We have for the past twentythree years gone through all sorts of battles with pirates. For a number of years we fought Canadian pirates who were reprinting our music and selling it at very low prices, not only in Canada but on this side of the line. We got something out of them, but hardly enough to satisfy the royalties of our authors. They had agents going through the country and sent out circulars and did a great deal of advertising. At times the size of their payments to us amounted to $3,500 for matter sold on this side. During those years we were greatly harassed to know what to do for relief. We besought the State Department, and were referred to the Universal Postal Department, and we were again sent before the committee considering a new tariff. We were really kicked all over Washington many and many a time, until we finally discovered that under the present copyright law the Secretary of the Treasury and PostmasterGeneral had the power to make such rules and regulations as would prohibit the importation of these goods. We got the representatives of the Departments together, and Mr. Montgomery knows the battle we fought, and we thank him kindly for the assistance he gave us two years ago. The matter was brought to the attention of the Assistant Attorney-General for the Post-Office Department and the Customs Department of the Treasury, and a joint compilation of regulations was made up to protect us, giving us the right to seize that contraband music and destroy it. Before that we had to resort to some sort of seizure, but it was very expensive in practice; for instance, we could not seize an accumulated lot of music that had been taken to the dead-letter office in the course of weeks and months, but we would have to get confiscated each little shipment of music of one piece or half a dozen. Those joint regulations protected us in that, so that I am happy to say to-day that the Canadian pirate is almost out of business. But they were not all Canadians in that fight; there were some Americans interested.
You can see the advantage they had at first in making perforated music sheets and in publishing the music itself. In publishing music it is well known that only about twenty pieces out of a hundred pay the expense of production-the making of the plates and putting them on the market. Very few out of each hundred pieces are successful and remunerative. That business is probably no more successful than is the average business man, and you know very few business men are successful. So all pieces of music are not successful. These pirates simply took the best work of American brains, and they had no expense in the way of compensating the authors, whereas our publishers could not do business in that way. The Canadian people had no expense of advertising, but publishers on this side expended large sums in that way. Sousa's band would probably require a considerable sum to play only one night in a large town. A prominent stage singer would require also a large amount. Those of us who advertise in the newspapers expend large sums of money in that way. My firm averages at least $50,000 a year in advertising in different ways, by circulars and in the newspapers. We think we ought to have all possible protection from these Canadian pirates, to prevent them from taking the cream of our business.
Mr. CURRIER. That has all been taken care of in the bill.
Mr. FURNISS. Yes; I understand that. At that time the publishers, in their desire to get some protection against mechanical players, were glad to see some way of getting assistance from some, if not all, of the members of the music association, and so we made a contract with the Eolian people, with a proviso that if the law did protect us we would get a royalty. These other men kept away from us. We would have been glad to make the same contract with them, however.
Now, we are satisfied with this new bill, as proposed to be corrected by Mr. Steuart the other day in regard to paragraph g. We are perfectly aware that the present wording of paragraph g is to be canceled, and the wording he has suggested is to be put into paragraph f of section 1. We were anxious for all the protection we could get. We are not lawyers, and all we had in mind really was to seize the thing itself, the roll, or the record, or whatever it may be called, and the mother record the first one from which duplicates are to be made. That is all we had in view. We did not want everything in sight.
It has been suggested that the music publishers ought to get in line and make a compromise with our opponents in regard to paragraph g. We do not see how we can do that. The compromise is explicit that we shall give them a perfect right to take all the copyrighted music and reproduce it, provided they pay the royalty that may be specified by this committee or the royalty that the author himself may be satisfied with. We do not see how we can consent to an agreement of that kind. The subsisting copyrights will not be continued by the new bill. We have no property rights except the pieces we publish to-day. We do not know whether the authors will give us the right of publication under this new bill. As we understand it, the author will come out a free man, at liberty to make such new contracts as he chooses, entitled to all the protection and property rights given him by the bill. We may get the pound of flesh, but the author can not give to these men one drop of blood. How can we go to work and consent to something being embodied in this new bill in which we have no rights, and in which the author has the right to sell as he chooses?
Senator SMOOT. Why can he not sell to anybody?
Mr. FURNISS. Under the present law?
Senator SMOOT. No; the previous law.
Mr. FURNISS. I do not see how the author will be able to sell to anybody and everybody. There is no provision of that kind. Senator SMOOT. Do you object to him selling to everybody? Mr. FURNISS. We have no objection to the author dealing with whom he chooses. He wants to be a free man so as to be able to make contracts with anybody. Take, for instance, the piano manufacturers. We are probably the greatest manufacturers of pianos in the world, but not a single publication of music. The firms who make mandolins, guitars, and such small instruments do not publish music for those instruments. Take those people who manufacture orchestral and band instruments; of those firms I think only Lyon & Healy publish any, and they publish comparatively few pieces. The publishing has always been separate from instrument making.