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appliance for reproducing to the ear by the aid of any mechanism or automatic musical instrument any work copyrighted under this act, belonging to class 1 or class 5 of section 6 hereof, shall cause to be plainly marked on each such device or appliance and each copy thereof the name of the author of such work and the title by which the same is published, unless the consent of the author to the omission of such name or title, or both, is first obtained,

It has been suggested to me also that the section provides no means of enforcing payment of the royalty, and would therefore seem to provide that the author might do his best to get his pay in whatever direction he chooses. In view of this very just criticism I propose to add at the end of the section, following line 27, the following:

And all courts having jurisdiction to enforce the provisions of this act shall have power to enforce the payment of such royalties so fixed, by any suitable means by which the orders and decrees of courts of equity are lawfully enforceable, and in case of continued or repeated default in respect to such payment, to enjoin the person or persons chargeable with such default from further making, selling, or otherwise distributing the device or appliance in respect to which the default exists.

I think, so far as those two criticisms go, they can be answered by these amendments.

I want to say now that the criticism that has been made this morning will surely be repeated, that Congress should not have power to recognize or give to the author a right and then dictate to him what he should do with it; that if the author has a certain right as to this feature he should be at liberty to say that one person and only one shall succeed to his rights, or a part of them; that two or three may divide it among them, and it is for the court to say; that Congress has no right to dictate any requirement in that regard.

It is also suggested—and I diverge from my line to take it upthat the language of the constitutional provision indicates that such interpretation of exclusive rights, as it might be termed, was not the intention of the Constitution. This is a little divergence, but it may be pertinent here. The constitutional provision is:

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 right to their respective writings and discoveries.

Now, does the word exclusive in this provision of the Constitution mean absolute, unqualified, total, unconditioned, and unconditional ? And does the clause mean that Congress shall have no power in the premises except to grant such absolute, unqualified, total, and unconditional right? If so, then there never has been a valid copyright law, for Congress has never granted to any author or inventor any such absolute, unqualified, and unconditional right. It has never granted a total right. The purpose of that clause of the Constitution and of all statutes enacted under it is to encourage the author to effort in the production of that for which he may receive pecuniary reward. Congress has open to it the whole field and the whole gamut of expedients to extend this encouragement, and has given to the author the monopoly of multiplying copies of his production. Congress might have gone mucho further. It might have given also the monopoly of public reading, but it has never done it; it might have given the monopoly of public and private recital, but it has never done it; it might have given the monopoly of public and private teaching the contents, but it has never done it. I might go on almost indefinitely indicating the things that

Congress might have done within this power of granting exclusive rights which it has not done in any statute. Congress has not fixed the fee for filing copies and printing notices. Congress could have fixed $50 or 50 cents as the fee. Congress could certainly have fixed an annual fee if it had chosen to do so. Congress could have excepted from that unconditional and absolute control whatever it pleased. The greater includes the less. Congress had power to grant exclusive rights. I differ with Mr. Walker in that, perhaps. But Congress never did it and never will do it.

Mr. WALKER. May I suggest that the power to grant is the power to

secure.

Mr. BURTON. I want to reply to that. If I secure for my son a position in the Treasury Department, does that mean that he had it before? The word secure does not mean, to my mind, what has been suggested. It simply meant to confirm strongly. If all Congress could do was to secure the exclusive right, then anything that does not secure that right does not come within the power of Congress. But Congress has the power up to that limit. The greater includes the less. Within that limit it had power to do whatever it deemed expedient for the purpose. Congress had given to authors the right of multiplication of copies, and it might as well have reserved to them expressly in the statute as it stands the subsequent right' of translation—not as within the copyright, not as going with the title, but that the author has the right of translation.

That is to say, Congress does not exhaust its power under the Constitution when it has granted the right of multiplication of copies. It may do in

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what it sees fit to secure to the author such rights as it sees fit to secure within its just control.

Congress having secured to the author the right of multiplication of copies, the bill provides that which is the very essence of the copyright, that the composer shall have this additional encouragement to effort, this additional advantage, namely, the right to receive a royalty for the use of his product through automatic devices. It is not an incident that pertains to copyrights, to multiply copies. It is a right reserved to the author to promote additional encouragement to effort, and it remains with him.

I believe that will stand legal criticism. I am quite confident it will stand prudential criticism.

Mr. Sousa. Do you pretend to say that Congress, having the power to make this law, can give the author less than the Constitution had the power to give to Congress?

Mr. BURTON. Congress is not compelled to go to the limit of its power.

Mr. Sousa. I do not think it can do less than the Constitution calls for. The Constitution says exclusive right for limited time, and I do not think it is within the power of Congress to give less than the Constitution gives.

Mr. BURTON. It may go the whole distance of its power or only a part.

Mr. SOUSA. “The Congress shall have power to promote the progress of science and useful arts.” I do not think it can do less than the Constitution provides. Of course, it can not do more, because laws have been set aside as having gone beyond the Constitution.

C1–06-17

Mr. BURTON. As I say, Congress has never enacted a copyright law that was valid, if that be the case, and that principle has been sustained by the courts. I am not asking the committee to be wiser, nor do I set myself up as being wiser, than the Supreme Court on that point. It seems to me in all such matters Congress must stop short. If the Constitution not only said how far Congress might go, but how far it must go, it would only be necessary for the copyright law to adopt the phraseology of the Constitution and stop there. It was intended by the Constitution that Congress in enacting a statute should exercise discretion in view of the conditions, the expediency and fairness of what was proposed to carry out the purpose of the constitutional provision, which was to promote the progress of science and the useful arts.

I do not want to be led off or lead off into any ethical discussion. but I repudiate entirely the proposition which has been advanced, and upon which some argument is founded, that this right of protection for authors' works is an elemental, an essential, right. prepared to argue the ethical question in any proper forum, but I do not believe there is any such ethical question involved, and if there be, this is not the place to discuss it. The Constitution in this provision does not proceed upon any such theory. It proceeds on the ground of expediency. The power given to Congress is the power to promote the public good; to secure fairness. Beside the duty it owes to the public, it owes the duty of securing a reward to the author to stimulate him to effort.

Expression is written in the human constitution. It does not require any National Constitution. That which a man conceives and thinks he wants to express. But he may hold it back. He may be encouraged to develop that which is within him and to express it by hope of pecuniary reward; and that is all the Constitution aims at. It is not to secure a natural right that the Constitution gives this power. The Constitution gives Congress the power for the purpose which is stated there—the encouragement of useful arts. It is the expedient that is aimed at. So it is solely a question of expediency and fairness relating to justice. In other words, expediency suggests fairness in the distribution of such encouragement as Congress is authorized to give. So it seems to me that we accomplish this purpose in the measure which gives to the author a protection in the way suggested in this section, severing it entirely from copyright.

There are some prudential reasons to be considered. We shall be asked, of course, why not provide somewhat that the copyright, whether in the hands of the author or of the assignee, should carry with it the power to exact uniform royalty? I answer two things.

First, it is a fact that the great majority of composers, with few exceptions, are disposed to accept a small sum for a present sale of copyright, rather than await the contingencies of publishing and marketing. The author is perhaps in immediate need. I could indefinitely multiply instances, but suffice it to say that the fact is that at least a majority of composers in selling their copyrights would not get a cent more under this bill than they would under the copyright act as it now stands. I am informed, and believe, that there are very large numbers of composers who are more or less under time contract to give to certain publishers their compositions. Such contracts are made under the present law. To add this new

source of revenue would simply make a donation to the publisher, who has made his contract and purchase in view of the old statute.

Mr. JOHNSON. May I ask if Mr. Burton does not know that that was one of the arguments against the passage of the copyright bill of 1891 ?

Mr. BURTON. I was not here at that time.

Mr. JOHNSON. I was. And don't you know that there is not an author in this country who is not from 50 to 100 per cent the gainer by the copyright law of 1891, which gave him that which he himself created instead of giving it to somebody else?

Mr. CURRIER. Suppose Congress in this act gave certain new property rights, would the courts hold that the publishers under prior contracts, which did not contemplate those rights at all, could take them? Would not the courts hold that neither of the parties to the contract contemplated the transfer of the rights from the composer to the publisher, and that they still remained in the composer!

Mr. BURTON. It would not be impossible for such an interpretation to be given, but I should doubt it. I should be disposed to believe that when the parties made these previous contracts they took the hazzard of a change in the copyright law.

Mr. CURRIER. If your contention is true, that they have not these rights now is true, then Congress is creating some new property rights that neither party contemplated.

Mr. BURTON. True, but if it was still under the copyright law I should myself, if I were a composer, hesitate a long time before I should act on the theory that the copyright did not contemplate present or future change. If I had the other side, I might argue that

but I should have little confidence in it. I want to reply to that suggestion. I did not intend to at this point, but I will. I will read the statement of a witness-George Schleiffart—who was examined on that very point. He said:

My first great success, Careless Elegance, which I published on royalty twenty-eight years ago, and which is still selling to-day, netted me $11. My great song, Who Will Buy My Roses Red, which sold 100,000 copies, netted me $83. My great composition, World's Exposition March, $5. The Cadet Two-Step, 50,000 copies sold, $4. And so I might go on ad infinitum. Out of 1,500 compositions I have probably earned $5,000.

Mr. Schleiffart is a man who is fairly able to take care of himself as a composer; but, as is the case with a large number of composers, the composition of music is a side issue, a collateral matter, with him.

Mr. Sousa. Possibly, with the exception of the Stars and Stripes, the most popular composition I have ever written was The Washington Post March. It has gone so far over the world that in other countries they have even changed its name. I received for that march $35, sold it outright to the publisher, but afterwards received something more when it became so popular.

Mr. BURTON. It might be well to amend the provisions of this bill so as to furnish a lawyer or adviser to every composer.

Mr. Sousa. It certainly would have paid me to consult a lawyer.

Senator CLAPP. The committee will take judicial notice of the fact that it is always advisable to consult lawyers.

Mr. BURTON. I hesitate to state, because it may seem to cast reflections on some publishers, but I want it understood that in existing conditions, as between the ordinary music composer and the pub

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lisher, the composer is not a business man, is not learned or experienced as to how to conduct his affairs. I will not give the name of this gentleman, but will furnish his name to the committee if it is desired. He is a professor of music in New York City, an organist, a composer, president of the New York State Teachers' Asscciation and of other societies. I asked this gentleman a general question as

. to the real benefit the composer ordinarily got out of his compositions. He said: “I will give you a typical case.” This man was as fairly able to watch out for himself as the ordinary man at least. He said: “I published a certain piece of music and placed it with a responsible house on royalty, payable quarterly. For the first quarter I watched the music stands and found the piece well distributed and favorably commented upon, and consequently I looked for quite a return on the first quarter day; I got $3.25. Well, I went to the publishers. They said, 'Oh, well, it has cost a good deal for advertising and sending out circulars, and for purposes of promoting we have been giving copies away; next quarter will be better. The next quarter I got $4 or $5. The third quarter I went into the market

I myself and with money of my own and that given to me by friends for that purpose I bought ”—I won't say whether he said five hundred or a thousand copies, but take the lower figures--" I bought 500 copies, so that I knew there had been that many copies sold in the regular course of trade, and I distributed them; I bought these in the early part of the quarter, so that they should be sure to get into the regular quarterly report. That quarter my returns were $6.50."

Mr. TINDALE. I should like to protest against this being regarded as a typical case.

Senator CLAPP. I suggest that it is not of the utmost importance. Mr. BURTON. I recognize that.

Mr. Sousa. I believe I have received from my publishers every dollar I was entitled to.

Mr. BURTON. I am certainly glad to hear that. I simply disclaim any intention to cast reflections, but at any rate this is only of secondary importance.

The main proposition is this: The reason for the universality of reproduction arises out of the situation of the business. The value of an automatic instrument to a purchaser depends entirely upon the number and character of perforated rolls which he can obtain for it. If one maker has by common recognition a very distinct superiority over another, the scale is turned strongly. Whenever it is recognized that one house has gained preeminence of reputation, purchasers and composers will both go to that house. Water runs down hill. If conditions change, another house may secure prominence, and it is all over with the first house.

You may start with even conditions. Let us suppose there is no tendency toward domination; the field is open for all. Some house will soon be recognized as having supremacy. Then everything goes to it. In other words, if one house has an advantage, that must be overcome by some handicap. Competition is like climbing hand over hand, and competition is ended as soon as one hand gives out. That is the reason why in this business there should not be that opportunity for domination. Neither the author nor the copyright owner slould have the right to select one and cut off another. If so, other houses

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