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The suggestion has been made in my hearing that a factory for the making of these disks might be established in every large city in the country, where the author could go and have his record made. But what will those manufacturers say? That they can not make these things. It is false. Mr. Sousa's marches will not be kept off the market. Those concerns may not manufacture, but Sousa's marches will be manufactured by somebody, and you do not care who manufactures them so long as the people can get what they want. You are not taking away any property rights from these gentlemen.
Mr. Chairman, I am sorry to dwell on a point I am now about to suggest, and I do not know why I should except for the fact that it has been a subject of so much thought by us in the last twentythree years that it is a little difficult to steer clear of it. Our opponents have said all manner of unkind things about us in speeches and in the public press; have made all sorts of accusations against us. They call us a trust. I say there is no such thing as a trust in music publishing. Our association of 52 members have never yet discussed the question of any combination in the selling of goods. We allow the members to sell at any price they choose, or to give them away if they want to. There can not be any trust unles there is a combination to control prices. If I have not given the right definition of trust, then I confess I am at sea in my talk. But we certainly can not see where we are a trust. They have even charged that the Librarian of Congress has been too familiar with our music.
Mr. CURRIER. I do not think you need to go into that.
Mr. FURNiss. I want to say that the music publishers last year entered about 26,224 copyrights and the year before they entered over 24,000 copyrights. Our people are not at all unknown in that department. We are known to that department personally.
Mr. CURRIER. You do not need to go into that.
A MEMBER. What are the objects and purposes of your association ?
Mr. FURNISS. We are a branch of the old association known as the Music Board of Trade. Under that organization the old music firms of the country were united to protect themselves in regard to prices. They regulated the prices at which music should be sold. They said to the dealer, “ You must buy $300 worth or you are not a dealer," That was under the old association. Time elapsed and that was cast away. New men came in and some of the old retired, so that we now call our association the Music Publishers' Association of the United States. The only thing we have had to do has been to fight piracy and try to get protection against it. When that is accomplished I do not see what else we can do to keep our association alive. There will be nothing else left.
We have been told by the opposition that we are the most iniquitous trust the Lord ever produced; that we are international as well as national, How can we be international, aside from the point that we have copyrights in foreign countries? The United States has a copyright treaty with England as well as with Germany and France. of course we are interested in foreign copyright legislation. We have in our association to-day, I think, four English publishers who have come to this country, and we are welcoming them. We have
no objection to their seeking to get a portion of the trade of this country. Mr. Ricordi, whose name has been mentioned, is one of those gentlemen who applied for membership. They can all come in and welcome.
I do not think I ought to take any more of your time. I have a little sketch here that I intended to give you, and if you will give me permission I would like to file it.
[The Music Trades, December 1, 1906.]
COPYRIGHT FROM PUBLISHERS' STANDPOINT ESSENTIAL TO THE DEVELOPMENT OF
THE USEFUL ARTS-MELODY THE CREATION OF GENIUS— PROPERTY RIGHTS INHERENT.
[Specially written for the 1906 Christmas issue of The Music Trades, by George W.
Furniss, Boston. )
The word “copyright,” from the standpoint of the publisher, is of itself sufliciently explanatory. To the author or his representative (usually the publisher), copyright” means the exclusive right to multiply copies and vend the same.
The publisher, by agreement or by contract, becomes the financial backer of the author, and the author looks to him by habit or custom to protect the property rights of the work, and this is done at the publisher's expense. The publisher represents the market where the author can go and sell his work, either in whole or in part, and reserve such property rights as he may choose.
When the copyright laws are not sufficiently plain or strong enough to protect the author or his assigns it is the custom to ask Congress for additional legislation on the subject. The copyright laws require the publisher to print on each copy of the composition the word “copyright.” This is a notice to the public that the work is the property of somebody, and it gives them further in uction to “keep off,” which means that certain property rights are reserved. When the composition is sold the copyright does not go with it. That is held by the owner of the copyright. The material thing is what is sold, which becomes the property of the purchaser, and he can use it when he chooses, but has no right to multiply copies in any form. He can teach it to others, but all rights that have any property value remain the rights of the copyright owner.
COPYRIGHT AN INCENTIVE TO DEVELOP USEFUL ARTS.
Copyright is the keynote to the protection of the “ useful arts.” If there were no protection there could be no property rights, and therefore little incentive to develop the “useful arts." Men and women would not go through the drudgery and the expenditure of time and money to acquire proficiency in the profession unless there was some reward to be obtained. Do you desire to have your children learn a trade or a profession where there is no remuneration ?
It was a wise and generous thing when the framers of the Constitution of the United States remembered the author and inventor. The world has been benefited by it and our country glorified. If the Constitution had made no mention of the author there would have been no need of the word " copyright." It is not the work of the author, nor the publishing of it, that has caused so much trouble and talk on the copyright question. It is the willful counterfeiting—infringing and reproducing without permission—that has made the trouble, with more loss, trouble, and expense to the publisher than the public could possibly imagine. Because of the reproducing and appropriating without permission the publishers are asking for additional protection; they claim the Constitution gives to the author the exclusive rights, and this is promised him by the Constitution, as follows:
“ The Congress shall have power to promote the progress of science and useful arts' by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."
The meaning of the word “writings," as employed in the Constitution, has been expressly defined to include all forms in writing, printing, engraving, etching, photographing, paintings, statuary, etc., by which the ideas in the mind of the author are given visible expression. On the word “writings ” there will be a battle fought in Congress by some of those opposed to the new copyright bill, viz, perforated music roll and talking-machine-music sound-record manufacturers. They promise to “lock horns " with the author and make him understand that an exact copy of a musical composition when copied by them and made into a perforated music roll and talking-machine record and sold under the title of the musical composition containing an accurate record of its melody and harmony, is not a copy of the composition from the fact that it does not look like the printed copy and can not be read by the musical public. More argument has been made upon the subject of copyright than anything I know. The most able legal minds have been called upon to defend and explain its meanings. They say that the composition of a new air or melody is entitled to protection, and the appropriation of the whole or of any substantial part without permission is a piracy; that the author should be entitled to the full amount of profit which he can derive from his own creation, and the product of his brains should be his for all purposes.
AN ORIGINAL AIR THE PRODUCT OF GENIUS,
It is the air, or melody, which is the invention of the author. Piracy depends upon whether the air taken is substantially the same as the original. The most unlearned can distinguish one song from another, but the mere adaptation of the melody by changing it to another musical form, or transforming it from one instrument to another, does not even to common apprehension alter the original subject. The air tells you it is the same. The original air requires the aid of genius for its construction, but a mere mechanic in music can make an arrangement.
Literary property is not in the material which preserves the author's reproduction, or in the means of its communication to others, but in the intellectual creation which is composed of ideas, conceptions, sentiments, and thoughts. It is in what is conveyed by the meaning of the manuscript, or the printed page, and not in the paper or material. It is an invisible, intangible creation of the mind fixed in form and communicated to others. It has been maintained that material substance is an essential attribute of property ; that nothing can be the subject of ownership which is not corporeal. It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership, but when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal. The spirit of both natural and of artificial law is to assign an owner to everything capable of ownership.
PROPERTY RIGHTS INHERENT IN AN INTELLECTUAL CREATION.
There can be, then, no property in a production of the mind unless it is expressed in a different order of words, but the property is not in the mere words alone--not alone in the one form of expression chosen by the author-it is in the intellectual creation, which language is merely a means of expressing and communicating. The words of a literary composition may be changed by substituting others of synonymous meaning, but the intellectual creation will remain substantially the saine. This truth is judicially recognized in the established principles when the property of the author is violated by any unauthorized use of his composition.
The test of piracy is not whether the identical language is used, but whether the substance of the production is unlawfully appropriated. An intellectual production may be expressed in any number of different languages, the thing itself is always the same, only the means of communication is different. The plot, the character, the sentiments, and the thoughts which constitute a work of fiction form an incorporeal creation, which may be communicated by a hundred different tongues—by the labial, or the sign of the mute, the raised letters of the blind, or the comprehensive characters of stenography. The means of communication are manifold, but the invisible, intangible, incorporeal creation of the author's brain never loses its identity. The Bible has been translated into all tongues, but its truth, its eloquence, and its poetry have been the same to all nations.
The true test is not whether the thing is corporeal or incorporeal, nor yet whether it is attached to a material substance, but whether it is capable of identification so that exclusive ownership may be asserted. The identity of an intellectual production is secured by the language in which it is inscribed, and that is true whether the language be spoken or written. When a composition has not been reduced to writing it may be more difficult, and in some cases impossible, to prove the authorship and thereby to establish a title to ownership. The manuscript is a means of the proof only—it is immaterial whether the composition has been written or communicated in spoken words.
The identity of a literary composition consists entirely in the sentiments and the language; the same conceptions clothed in the same thoughts must necessarily be the same composition; and whatever method be taken of exhibit-. ing that composition to the ear or the eye of another by recital, by writing, or by printing it is always the identical work of the author.
PUBLISHERS' CLAIMS CONCEDED BY SOME MANUFACTURERS.
Some of the perforated music roll and talking-machine music record manufacturers acknowledge that the author of the musical work should receive some reasonable remuneration. They say that their business could well afford it, but why should they pay a royalty to the author or owner of the copyright unless the other manufacturers would do the same? The perforated music rolls retail from 50 cents to several dollars each; the talking-machine records retail from 35 cents to $5 each. However, it is a fact that in some compositions the sale of the sound record is far greater than the original copy in printed form.
It is claimed that people do not buy these music rolls and music records to read as musicians do the printed copy. Did you ever hear of a musician purchasing a copy of a musical work simply to read it as you would a book or a story? In the more intricate piano compositions and orchestrations it is hardly possible that a musician could enjoy its harmony and instrumentation by attempting to read it by sight. It is used as a guide to a musician, a guide to the eye which notifies the fingers of the performer the exact keys or strings of the instrument to strike. A perforated music roll is used as a guide to the mechanical part of the instrument to liberate certain valves and cause the strings or reeds to sound forth. The roll is not a part of the instrument; it is detachable and sold separately. You can buy one instrument (piano or organ) and then buy 10,000 music rolls to be used in the reproduction of the musical compositions. Some of the talking-machine manufacturers talk and advertise in this man
Let us look at the talking machine from the scientific and musically artistic side-a little instrument which can reproduce the music of the voice or of any orchestra or a band of a hundred or more pieces. The little needle, the sound box, and the record are hardly less wonderful in their united powers than the human mind—the ear and voice. Still more wonderful in some respects is the sound box, a mechanical ear which hears the vibrations of the needle on the record and transmits them. The delicate original disk is first used as a matrix, the mother of thousands of records so exactly alike that no expert can tell the difference between them. You can have your voice photographed and keep it on a record as a blessing to future posterity. The records are carefully protected and put away in the vault of sound writings.”
I heard the talking machine play the record of the departure of a British manof-war. Command was given for all to get on board. You could hear the fife and drum band marching nearer and nearer with the marines, and the rattling of their accouterments; the jollying of the crowd on the embankment and its growth as the voices increased in multitude. The vessel started—you could hear the steam and the working of the engines. The band played “God Save the King,” and its faint strains were heard as the vessel passed seemingly out of sight.
What notation could represent a copy of this sound scene? You say there is none in existence. What, then, is the explanation? We say simply a sound writing or a sound photograph.
If the photographer with his moving scene camera had taken the photograph of the scene as it appeared to the eye—and the talking-machine record the sound as it appeared to the ear--in the same tempo, and then both reproduced the same at one time, you would have a perfect photograph both of the scene and of the sound. In fact, a perfect picture of the event.
WHAT CONSTITUTES A COPY.
There will be a battle also on the word “copy.” To the author it means that which appeals to the ear and not to the eye. You can not see a musical sound wave, but you can hear it. A blind person with good hearing can enjoy a
musical composition, its melody and harmony, just as well as a person with two eyes. A deaf person with good eye sight can not see a musical sound wave, nor enjoy its beauty.
A Boston newspaper man recently hooted at the idea of copyrighting “sound waves.” He claimed that it was something that belonged to nature and to God and free to all men, but did not know that music was nothing else than sound waves, and that the artist or photographer could make a copy of the sun, moon, stars, and all that is on earth and beneath the earth and secure copyright on the same.
A QUESTION OF PROPERTY RIGHTS AND PROTECTION.
Should Congress force the author to give his composition to the world, or give more than the author desires? If he wishes to hold the composition to his own personal use, that is a matter within himself. If he wishes to hold the right of public performance, he can do so. Or if he wishes to place it on the open market, it then becomes to him simply a question of business.
The question is asked, “ How far will Congress go in giving us protection, and what will be the true wording of the misdemeanor clause in the bill now before Congress?” The British copyright law reads, as follows:
* Every person who prints, reproduces or sells, or exposes, offers, or has in his possession for sale, any pirated copies of any musical work, or has in his possession any plates for the purpose of printing or reproducing pirated copies of any musical work, shall be guilty of an offense, and shall be liable to a fine, and on a second or subsequent conviction to imprisonment with, or without, hard labor.
“The court may grant a search warrant authorizing the constable named therein to enter the premises between the hours of six of the clock in the morning and nine of the clock, in the evening, and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and to seize any copies of any musical work or any plates in respect of which he has reasonable ground for suspecting that an offense against this act is being committed.”
Our copyright laws will not be perfect or up to date until Congress shall follow the instructions given it by the Constitution and provide ample protection for all commercial use of the author's work.
This subject resolves itself simply to the question of property rights and its protection.
And on that line the members of the Music Publishers' Association of the United States propose to fight for the authors whom they represent and themselves until their rights are fully established beyond question or cavil.
GEORGE W. FURNISS,
Publishers' Association of the United States. BOSTON, Mass., November 17, 1906.
A MEMBER. You admit that when your association was first organized it was a trust in form?
Mr. FURNiss. It was composed of the various music boards of trade, who cooperated for their mutual benefit in the matter of prices.
Mr. O'CONNELL. Is it not a fact that the average prices of copyrighted sheet music are about one and a half times the prices of noncopyrighted sheet music!
Mr. FURNISS. The average royalty to Mr. Sousa is 15 per cent of the price called the published price. For instance, if 60 cents is the published price, 15 per cent of that is allowed to Mr. Sousa.
Mr. O'CONNELL. You have not answered my question about the average.
Mr. FURNISS. Are you alluding to copyrighted music or noncopyrighted ?
Mr. O'CONNELL. You certainly do not pay royalties on noncopyrighted music?
Mr. FURNISS. Certainly not.