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Let me add a word: I was very much impressed with the attention given by the committee to Mr. Davis in his statement as an inventor. But the plea of the inventor that he should be allowed to sell his invention under a royalty and that the composer should be prevented from getting the benefit of the product of his brain seemed to me not to be very logical. It seems to me the argument should be that the inventor himself should be the first person to join with the claim of the author.


Mr. Johnson. Mr. Chairman, may I suggest an amendment, and give my reasons for its adoption?

Clause b of section 18, on page 14 of the bill, provides :

For fifty years after the date of first publication in the case of any composite or collective work, any work copyrighted by a corporate body

This evidently is not intended for anything else, yet I am informed that nearly every magazine is owned by a corporation which should not be deprived of the full term of copyright provided in clause c. Take McClure's Magazine. Should that periodical be given a blanket copyright of only fifty years for its materials, all of which are copyrighted for the longer term of life and fifty years, each article would have to be separately copyrighted and a separate notice printed, which would be a colossal inconvenience and a substantial conflict of equities. There would, moreover, be nothing left to copyright by a general notice. In other words, the part would be greater than the whole. I therefore, on behalf of the American Copyright League, which has already discussed this matter, propose the insertion, after the words “any work copyrighted by a corporate body, of the words “not an assignee or licensee of the author or authors.”

Senator CLAPP. I think perhaps, Mr. Johnson, you had better file a written slip embodying that proposed amendment.

Mr. Johnson. I will do that. I only wished to call it to the attention of the gentlemen who are here so that they might have notice.

Senator CLAPP. It will be more likely to receive attention if it is filed with the proposed amendments.

The LIBRARIAN. Mr. Chairman, it is suggested that this would be an appropriate time for Mr. Burton, of Chicago, to speak. He has proposed a substitute bill, the purpose of which he explained briefly on Friday last, but which he was to have an opportunity to discuss to-day in connection with these provisions. Is it your pleasure to hear him now? I understand that Mr. Sousa desires to ask a question or make some observation.

Mr. John P. Souså. Mr. Chairman, the first patent granted on a phonograph says:

Be it known that I, Thomas A. Edison, of Menlo Park, in the county of Middlesex and State of New Jersey, have invented an improvement in phonograph or speaking machines, of which the following is a specification :

The object of this invention is to record in permanent characters the human voice and other sounds, from which characters such sounds may be reproduced and rendered audible again at a future time.

A record is an authentic memorial, and a memorial is a preservation of memory. If you can get away from a writing in that, I would like to know it.


Senator CLAPP. Please state whom you represent. Mr. BURTON. I represent the Melville Clark Piano Company, of Chicago, and also the Q. R. S. Company, of Chicago, and other parties interested in the manufacture of automatic musical instruments and appliances.

Mr. Chairman and gentlemen of the committee, preliminarily I want to say, and not entirely out of line with that which I may have subsequently to say, that I found myself in most complete concurrence with Mr. Porterfield on Saturday to the effect that he found the pending bill not one upon which the amendments which he desired to suggest could be founded; that it did not furnish a satisfactory framework for a reconstruction to embody the views of those who differed from its present make-up.

I had it in mind to suggest changes and amendments of the bill as it stands for the purpose of meeting some particular points I had in mind, representing my clients as I do, and relating especially to automatic devices. But simply to show how difficult it is to proceed along that line, I will just mention one or two of those difficulties and then drop the matter, taking up the particular point on which I wish to speak.

For example, it will be understood that clause g of section 1 we desired to have cut out. I canceled that, and then immediately found that the same virus was found in clause f, as Mr. Steuart pointed out. I rephrased that, and then found that the same difficulty might arise in clause h. Í cut out clause c for what I thought sufficient reasons, and then found that that would clash with clause h of section 5, reproductions of a work of art. And so on.

It was not because the bill is not framed in a unitary manner. It is too unitary. It is completely woven part with part, so that by those who accept all its parts it will be regarded as a most excellent piece of well-joined work; but when you begin to cut out any one feature the bill bleeds at every artery; it has to be entirely reconstructed. The red thread runs through it all. Here and there it takes a different pattern, as in clause g of section 1, but it is throughout the bill.

Therefore I quite agree with Mr. Porterfield that an entirely new bill will be necessary unless you take the bill substantially as it is in all its points.

Senator CLAPP. While I myself do not very much like the idea of a time limit, yet, for the convenience of others who are to speak, I would like to have you suggest about how long a time you want.

Mr. BURTON. That depends a great deal more on what the committee wishes at this point than upon my preference. I can say a good deal in half an hour, and I can talk two hours. But I am at the disposal of the committee. I shall make a fair opening, and then I will be here to be shot at by the parties who oppose my view, and then perhaps I should desire to reply. But I shall be content, whenever the committee wishes, to call a halt, provided that since I am here to be attacked in my bill I should like to have the opportunity to reply to the criticisms that may follow if I do not anticipate them in my opening.

Mr. WALKER. Mr. Chairman, Mr. Burton has given a great deal of study to this bill and its subject-matter, and I am informed that he suggests a large number of amendments, most of them improve

I do not approve altogether of his substitute bill, but much of it is valuable, and it all indicates a very close study of the subject. Therefore I think that the convenience of the committee would be promoted by allowing him to proceed without time limit, because I am certain he will not use his time other than usefully to the committee.

Senator CLAPP. I think we will take a recess at 1 o'clock, and shall desire just before the recess for lunch to hear one or two gentlemen who perhaps want to get away on the trains. With that limitation or understanding Mr. Burton may proceed.

The LIBRARIAN. I have had a request from Mr. Glockling to be heard just before the recess.

Senator CLAPP. The others may not feel obliged to remain unless they wish.

Mr. BURTON. I thank the committee for so much liberty. It will enable me to confine my attention to the subject and not be watching the clock. ing

I think it would be most convenient if the members of the committee have before them the substitute draft for reference, though they can follow it, of course, in the parallel-column matter prepared by the authors. I shall refer to our substitute draft for my own convenience.

The LIBRARIAN. Mr. Burton, allow me to remind the committee that the variances between your substitute bill and the pending bill have been drawn off and separately printed as an addendum, and copies of that separate statement are before the committee and will be available to all who desire to refer to it. Of course there are many provisions in Mr. Burton's bill identical with the pending bill.

Mr. BURTON. That reminds me, and I may as well say at this point, that I entered upon this work solely for the purpose of covering the points in which my clients are interested, and I shall not trouble the committee with any suggestions as to sections that do not touch their interest, some of which I might have found objectionable and might have agreed with the criticisms of others. But I have simply noted these changes desired by my clients, not desiring to appropriate other people's suggestions. With that understanding, I do not stand sponsor for the mere reprinted matter of this bill. I should criticise very much of it if I were to undertake that function.

There are two sections of the substitute draft that embody the gist of the departures, as I may say, from the pending bill-sections 3 and 39.

Section 3 recognizes and intends to recognize the character of authorship entitling the person to copyright as inhering in the work done—the artistic work done in producing appliances for the reproduction of speech or music—the singer who sings through the instrument to produce the graphophone roll or talking-machine disk; the artist who plays the musical instrument and in the same way causes a reproduction of the music upon a graphophone roll or disk; the artist who plays upon the piano for the purpose of securing an automatic record or perforated roll presenting the characteristics of his work; and the artist (for he is an artist), who cuts diagrams and arranges the perforated roll, being guided by his interpretation of the music from the printed score. In all these cases there is artistic work. You will recognize easily and at once that the singer or player, whose work is done automatically in the phonograph and made to record and reproduce itself in the resulting devices, has contributed to a result entirely independent of and apart from the work of the composer. You might not recognize it unless you were familiar with the process of the arranger of the perforated roll, but it is as thoroughly and entirely the fact in the one case as in the other.

You may put a mathematician to work to cut a perforated roll, and when you see it you will recognize at once that it is not the work of a musician. The musician must be a man with a thorough appreciation of the music. Mr. Sousa will smile at my phrase and he is at liberty to do so-but I do know from reading testimony, and I know from information given me by those who use the different rolls, that it takes a musician using a musician's skill and ability, and, besides that, using the skill and ability of an expert mechanic, to comprehend what his machine is going to do with the roll he is going to cut. He must blend his knowledge as a musician with his musical appreciation, with his knowledge of what his machine can do, and must cut his roll accordingly. It is an artistic work of a high grade, whether you look at it from the standpoint of the mechanic or of the artist.

So that in all these cases—the roll cut automatically or cut by calculation, or the disk produced by speaking or playing—in all these is the work of authorship entitling the person who has by that means produced it to copyright thereon. It is analogous to, but, in my opinion, more meritorious than the work of the photographer who poses his subject, selects his point of view, and then manipulates his instrument with skill and produces a picture. He is not thereby cutting off anybody else from posing the same subject and selecting a point of view, but he does obtain a copyright of his picture.

Three engineers undertake to make a map, each of them, of the city of Washington. They will survey the same streets. They will mark the same corners. They have identically the same distances to lay off. And each of them will make a map, and each man is entitled to a copyright upon the map he has made, not to prevent another man from making another map of the same city with the same dimensions and directions. But each man is entitled to the product of his own effort, and the work of another will only be infringement when he has taken the work of the first as a master and copied therefrom without himself making any survey:

Therefore the object of section 3 is simply to prevent piracy, which is easy as to some of these things and not impossible in any, I believe. For example, the taking of a perforated roll that the master has produced at the expense of much work and great artistic ability and putting that in a machine and making an automatic reproduction would be an infringement. To entitle one to copyright he must himself go to the expense of money and skill in preparing his own master.

This is not a fanciful protection. It is one which the makers of these devices know is actually necessary. They know that the perforated rolls which they have produced at great expense have been used as the master from which to make replicas, which, while they may be considered very good, are still inferior to the original. We think this is the place where that protection should be granted.

It has been suggested, and I think with force, that section 3 as it appears in the printed copy before you is not entirely clear as to the intent that the protection granted should be of the particular device. It has been suggested that it might be interpreted as indicating the first producer of the device. I have indicated what I think to be the proper change to be made on page 2 of the substitute draft, beginning in line 26, so that it will read:

Shall be considered the author of the specific device or appliance so produced, and the same may be copyrighted under the provisions of this act by or in the right of such author, without prejudice to the right of any other person to arrange and produce other device or appliance of the same or other sort for reproducing to the ear the same work.

I think that will make it clear.

Now let me turn to section 39, which has perhaps received the most criticism, and I am not so conceited as to assert that it is free from objection from some points of view. The general purpose of section 39" is this: To recognize the contribution which a composer makes to the profit-earning capacity of automatic devices which produce music to recognize it, however, in such a way that it shall not be a springing out directly from the copyright or composition, but as a personal element.

In general this section provides that no person shall make such an automatic device and issue it on the market for distribution without marking thereon the name of the author or the name of the composition, or both, unless the consent of the author shall be first obtained; that, for the advantage, presumably, arising out of the reputation of the author or his work and carried by his name, the author shall be entitled to a reasonable royalty; that that royalty shall be uniform, so that any person making a like device (as a perforated roll, a talking machine disk, or telegraphone device) will pay the same amountnot that the talking machine disk shall have the same royalty, necessarily, but that all perforated rolls shall pay the same royalty, all telegraphone devices pay the same, and all talking machine disks shall pay the same. The reasons for this are prudential, and I will present them later.

It has been suggested that it is not clear from the whole section, as it stands in the printed draft, that this royalty should be compulsorythat is to say, that the author should not have the power to refuse to permit his music to be reproduced in this manner; that is, it was thought it might mean that you might limit royalty to two or three; that the requirement of the bill would only be that those two or three should

рау. the same rate, and not that any person who desired should not make the same device. I would propose, therefore, to amend section 39 so that it shall read as follows:

SEC. 39. Devices and appliances for automatic reproduction, to the ear, of speech or music shall not be held or treated as infringements of any copyright obtained under this act upon the speech or music so reproduced : Provided, howEver, That any person publishing or making in multiple, for sale, any device or

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