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Mr. O'CONNELL. Then you understand the question.
Mr. FURNiss. The average royalty paid by the publishers runs not less than 10 per cent and not more than 15 per cent on the printed prices, the printed price being double the retail price to-day.
Mr. CURRIER. Then 10 per cent—what you get-means really 20
Mr. FURNISS. Yes, sir; we are paying authors 20 per cent, and 30 per cent to some of them.
Senator Smoot. What is the object of that?
Mr. FURNISS. That is another thing that was brought over from the old association. They had some listed at 10 cents a page, two pages 20 cents, and so on, so that you could tell the price by the number of
pages. Then improvements in printing and reproducing came into existence, so that sheet music can now be produced much cheaper than by the old hand process of printing. I am not a printer, but we can now print music for much less cost than ever before. Then, of course, competition came in, and publishers found they could select people. It was these things that produced the abandonment of the old association. Previous to that time it was practically ironclad, with the exception of a few houses on the outside.
Mr. CROMELIN.. As I came down Pennsylvania avenue this morning to attend this hearing I passed the house of Droop & Sons, a large music house here, and noticed this sign in the window, spread across the whole window : “ John Philip Sousa's new march, Free Lance, 60 cents, reduced to 17 cents."
Mr. FURNISS. Mr. Sousa gets his royalty just the same.
Mr. CROMELIN. I would like to ask whether you mean that Mr. Sousa still gets 15 per cent upon 60 cents or 15 per cent upon 17 cents, where the price is reduced in that way.
Mr. CURRIER. Mr. Sousa can answer that.
Mr. Sousa. Mr. Chairman, composers are very careful not to allow themselves to suffer by reason of the competition of publishers. Indeed, in my terms, both for the stage and for the publisher, I make my percentage on the gross receipts. In regard to stage rights, the managers get so much for their share for everything put on the stage, but I get my 15 per cent. In this very march there are 16 different arrangements made on the title-page, but I get my 15 per cent of the gross receipts, I don't care what it sells for.
Mr. CURRIER. That answers the question.
Mr. Furniss. No matter whether the publisher gives it away, Mr. Sousa gets his royalty.
I would like to make one more point. I have in my hand a circular, which possibly inadvertently came to me, sent out by the American Musical Copyright League, organized by the gentleman who is the editor of a paper presented to you the other day—a good man, a good editor. Perhaps no better music paper could be made, unless Mr. Hearst made one. These people say they are organized to protect the American public. We publishers had the idea that Congress was the protector of the American public. I would like to put this circular in evidence with my statement in connection with other points they make in regard to their organization and the prices they charge.
Mr. WEBB. How many reputable music houses in the United States are there in your organization ?
Mr. FURNISS. We were talking to-day, Mr. Webb, in regard to the popularity of music. Sometimes a firm has a greater success with one piece than another house with 500 pieces. There may be 10,000 small fellows on the outside. I guess you will find a publishing house in almost every large town in America. But so far as large houses are concerned, those who publish the standard music of the day from the outside of our association, there are not more than two or three.
Mr. WEBB. That answers my question.
Mr. CURRIER. This circular you offer does not seem to be of practical value for discussion. What is the purpose of putting it in the record? You must remember that the members of the committee will have to read the record.
Mr. FURNISS. I withdraw it upon that suggestion.
Mr. CROMELIN. May I ask Mr. Furniss one more question for information?
Mr. CURRIER. Yes.
Mr. CROMELIN. In the Music Trades of December 1 you have an article on copyrights. You are the special copyright committee of the Music Publishers' Association. You have just handed this article to the committee and asked to have it filed. May I ask whether or not, in quoting the British copyright act of 1906, you have not purposely omitted the most important part of the bill, which states that the words “ pirates” and “ pirated copies” shall not be construed to cover perforated rolls or the records used in talking machines ? I have read this article with much interest, because you are the special committee on copyright.
Mr. CURRIER. Suppose you put in the portion which you say has been omitted.
A MEMBER. The whole English act is already in the record.
The LIBRARIAN. The only other two names of gentlemen whose statements would be grouped with the proponents are Mr. Pettit and Mr. Bowker. I do not see Mr. Pettit here, but Mr. Bowker is here.
STATEMENT OF MR. RICHARD R. BOWKER.
Mr. CURRIER. How much time do you wish, Mr. Bowker.
Perhaps I should say that, in speaking on a mechanical question, although I represent the Authors Copyright League as a writer, I can speak with some knowledge in regard to the mechanical question, since I hold patents as well as copyrights and happen to be the author of a book on copyrights. I was also actively allied with the Edison Illuminating Company in New York for nine years.
Perhaps you would like to have for the record this opinion of Judge Lacombe and his associates, which has been so often referred to, in the Auto-Music 'case. I do not present it as part of my remarks.
The LIBRARIAN. It is already embodied in the June hearing. [“ Arguments," p. 35.]
Mr. BowKER. Doctor Hale alluded to the difficulty which came from the statute of Anne as taking away some of the rights of authors under the common law. To hark back to the fundamental part of the bill, I call your attention to the fact that section 2, as the negative fundamental provision, has been left unchallenged by everyone, I think, except Mr. Porterfield, who confused it with section 21, which prevents any present existing common-law rights being taken away, as they were by the statute of Anne.
In that connection I want to call attention to the language of the Constitution, which does not propose that rights shall be created, but says that 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.” The exclusive right in anything is, of course, a monopoly. Herbert Spencer, in talking about copyright before a committee of the House of Lords, said: “ If I am a monopolist, you are a monopolist, and so is every man. If I am not entitled to the product of my brain, you are not entitled to the product of your hands. No one can own anything, and property is robbery."
That is the general position of authors, including music composers, that it is for Congress to secure to them exclusive rights. A landowner has the exclusive right not only to sell his property, but to lease it or to grant an easement. He may sell it outright, or he may sell it with some restriction, such as that no stable shall be built thereon, or that no building shall be erected thereon to cost less than a specified sum. The authors ask that their exclusive right shall be recognized in the same way. That is the meaning of the broad provision in paragraph b, and it is not intended to go further than to protect the general rights. It was not intended to follow a chattel after it has left the hands of the owner.
Under that general plan a royalty is not a protection of the exclusive right of the composer. Whatever arrangements may be made or whatever discussion there may be as to monopolies and royalties as between publisher and manufacturer of these rolls, that is not a question for Congress. Those are trade matters. Here is the question of securing rights to a man who has created property. That is the pith of the whole matter.
I pointed out the other day how closely a phonograph followed the ordinary lines, but I did not point out to you an important fact, that the phonograph, as a mechanism, is actuated by the motor only in revolving it; that the actual writing is done by the voice. It used to be said that a man can talk a hole through a barn door, and the man's voice does cut a record upon the phonographic disk or cylinder. But that record is not legible to the eye. There is also another invention, to which I referred on Saturday, the new telegraphone, in which the author's voice produces some unknown kind of impression in the magnetized particles of a steel tape. But that is definitely a writing or a record, though it is not legible to the eye. It does not matter whether these reproductions are writings or not. Necessarily they are not the originals, and it does not matter whether they are legible or not. There are manuscripts in existence where the actual writing is not legible.
So that this whole matter has to be thought of in the fine sense of the author's exclusive right to the benefit of his original work. In other words, there is an original record, and there are copies.
There is also another class of rights which are not included in a record, and those are the rights that the author has of oral expression, by dramatization for production on the stage, together with his right of exhibition. The publication of a record involves the dedication of the writing both in its relation to music and the drama.
There is another recent invention, known variously as a dynamophone or teleharmonicon, by Doctor Cahill, which is now operating in New York, by which a musical composition is reproduced without any record to thousands of telephone subscribers, perhaps, and I understand that in the city of Budapest one newspaper has made an arrangement by which a telephone subscriber can go to his phone and ask for the proper connection, and when it is established he can hear a newspaper read to him, and I am also informed that at certain hours of the day various books are read through it.
I want to point out that the exclusive right of the author in a literary or musical composition can be interfered with in this manner of reproduction without payment to him by the publisher of books or by the manufacturer who publishes through the talking machine. If more and more music should be produced in that shape it stands tv reason that the returns to the author, instead of increasing with the development of invention and the consequent benefit to the public, will be reduced. So it is necessary that the author's exclusive rights should be protected by the broadest language.
Again, I wish to emphasize our concurrence in the suggestion that, instead of section g, the broad provision of that paragraph shall be added to paragraph f. We find also a serious defect in paragraph g where contrivances and devices are spoken of, naturally suggesting machines, which are patentable, rather than the form of intellectual productivity which is copyrightable.
Now, to come specifically to the question of autorolls, perforated rolls, there are many kinds, almost an infinite number of kinds of such rolls, and there will be more. It is not a question of whether such a record can be read. I believe it can be read, in a certain sense, because the Assyrian hieroglyph, the very progenitor, or if not the progenitor, certainly has such a strong resemblance to the record on these rolls that it may be considered to lie at the foundation of the art. But it does not matter in the slightest whether anybody can read those or not. As a matter of fact, however, they do detract from the exclusive right of the author. There can be no doubt about that. The author is entitled to the exclusive right and benefit of the intellectual creation of his brain. There can be no doubt that these music rolls would not have existed had not the author created his musical composition. That is the key to the whole situation. Whatever may be the relations between the music composer and the musio publisher, or whatever may be the arrangements of the Æolian company with publishers, for one I do not believe that any of the interests—except possibly those of the music publishers in that conference—cared anything about it, but I do know that the music composer is entitled to ask from you the securing of his exclusive rights.
The decision to which I have referred says specifically that the court is of opinion that these rolls are properly within the scope of the copyright law. But the inferior court simply said that it was not in a position to make so broad a construction, that it was rather a subject for Congressional legislation. On the other hand, the Supreme Court has often taken a broader view of the power of Congress than the inferior courts felt able or willing to do. It is the belief of many, and I among them, that when this issue comes before the Supreme Court it will be adjudicated in the broader light, and that it will be found that, as in the case of photographs and other things, the Supreme Court will state that in the present law there is that provision. It would, therefore, be doubly unfortunate that this new law should seem by definition to take away rights which perhaps already existed. If they did not already exist, then certainly within the phrase of the Constitution we think those exclusive rights should be secured.
A MEMBER. How long ago was it that the case went to the Supreme Court? In other words, when can you reasonably expect a decision?
Mr. BowKER. I am not a lawyer, and can not answer.
Mr. O'CONNELL. The decision of the circuit court of appeals was handed down five days prior to the introduction of the bill in Congress——that is, on the 25th or 26th of May, 1906. I do not know whether it has been taken up on appeal or not.
A GENTLEMAN. I have been informed by the clerk of the Supreme Court that it will be reached in about a year.
Mr. BOWKER. One thing more: There is nothing in the bill which prevents the composer under his exclusive right from making an arrangement by which any manufacturer can utilize his composition, and I think possibly in this kind of business that will be to his profit. I think this bill is very explicit on this point.
The contract that has been referred to provides particularly as to existing copyrights that they shall not in any way be affected by the provisions of this bill. I should say that noncopyrighted articles can not in any indirect way. be put under the protection of the new bill. It is only a new arrangement of an old thing that can be put into copyright. So that there is nothing in this bill which would seem in any way to prevent absolute freedom on the part of the composer to deal with all these gentlemen if he chooses. There is nothing unjust to them as to the existing material which they are utilizing, and so we ask that the musical composer be put on the same basis as the author of books, the author of a drama, an artist, and be given, as the Constitution says, the exclusive right to his writings.
A MEMBER. What do I understand to be exactly your desire in regard to music, the language of paragraphs g and f being “ to publicly reproduce?"
The LIBRARIAN. Mr. Steuart suggested the interpolation of the words " for profit.' Mr. BOWKER. If a man bought a machine for his own purposes
and pays a royalty, of course he can not be prevented from using the apparatus for his own purposes. A MEMBER. Suppose he buys it from a phonograph company
and then buys a record of Mr. Sousa's march, the "Free Lance;" would he be liable under this bill?
Mr. BOWKER. If he bought an unlawful copy, of course he could be enjoined from using it.
A MEMBER. Take any copy that a phonograph company might make.
Mr. BOWKER. Yes; that is a logical deduction; just as would be the case if he bought hats or umbrellas.