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Mr. SOUSA. Will you kindly tell me the amount of capital involved in the talking-machine business?
Mr. WALKER. That will be attended to by one of my associates, in due order.
STATEMENT OF FRANK L. DYER, REPRESENTING THE EDISON PHONOGRAPH WORKS AND THE NATIONAL PHONOGRAPH COMPANY.
Mr. DYER. Mr. Chairman and gentlemen, I wish to say in the beginning that the statement which was made before this committee in June, to the effect that the Edison Company were interested in any scheme or combination by which musical copyrights might be monopolized is absolutely unfounded, so far as those companies are concerned. They are unalterably opposed to those sections of the bill which relate to their business, including the section which we are now discussing.
The decisions of the Supreme Court of the United States on the subject of copyrights make it clear, I think, so far as they can, that this may be regarded as a precise definition of the word "writings." "Writings," as construed by the Supreme Court, mean a visible embodiment of an intellectual conception by which the author's idea may be comprehended by sight.
Mr. BOWKER. May I ask a question?
The CHAIRMAN. Mr. Dyer, do you desire to be interrupted?
Mr. DYER. I would rather not be interrupted, as it disturbs my train of thought.
The CHAIRMAN. The committee will protect you from interruption.
Mr. DYER. The thing which the law protects is not the idea, but the embodiment of the idea. A musical composition, if it is copyrighted at all, is copyrightable because it is a "writing," and can be read by the skilled person to whom it is addressed. That is to say, a collection of sounds or noises, the embodiment of music is not copyrightable; but a writing, which is addressed to musical people, is a thing which is copyrightable. A phonograph record is not a writing, as I contend, because it can not be read, not only because of its minuteness and its enormous complexity, but because, as distinguished from the perforated rolls, of its variability. That is to say, a phonograph record of a particular piece may be played one day, and the next day the same piece may be played on the phonograph and the two records will be absolutely dissimilar, not as to the effect on the ear but as to the effect on the eye. Mr. Edison determined to experiment in that direction in the early days, to see if it was not possible to read a phonograph record. He operated a phonograph and spoke the letter "a into it. That letter would require the length of about 1 foot, and would be represented by many thousand extremely minute vibrations. He examined with a microscope each particular indentation and made a drawing of it, so that at the end of two or three days he had what he thought was a picture of the letter "a. He tried it again with the letter "a," and he was surprised to find that the two pictures were absolutely dissimilar. Upon investigating the matter he found that the slightest change in the pronunciation of the letter, the slightest variation
of a person's lips or vocal organs, resulted in the production of a completely different visible record, although to the ear it gave the same sound.
Mr. CHANEY. What does that prove?
Mr. DYER. That proves, to my mind, that a phonograph record is not a writing because it can not possibly be read. Some of the gentlemen present have stated that they understood a phonograph record could be read, but it is impossible to read it. It can only be heard through the ear.
The present bill proposes two important departures in the law and seeks to protect: First, sounds themselves which impress the brain through the organ of hearing, and, second, records which of themselves give no indication of their subject-matter but require to be used with a mechanical device to produce or reproduce the sounds. In other words, the bill proposes to protect the sounds themselves, so that anyone who produces those sounds on a phonograph or a piano or vocally is an infringer.
So the bill proposes to protect the sounds as distinguished from the embodiment of the sounds.
The second absolutely novel proposition which the bill proposes to engraft on the statutes is that instead of protecting the embodiment of the idea which of itself is capable of giving to the mind of the observer the idea that was in the author's mind, it seeks to protect the records which give no indication of their subject-matter, but which require to be put on a mechanical device and which then operate to produce in the one case and to reproduce in the other the intellectual idea of the author.
These are completely novel propositions in the copyright law. They have never been enforced in a single country in the world except in Italy. In the Italian courts, not in an appellate court, I understand, it has been held that a phonograph record is an infringement of a copyright, and therefore that a copyright applies to the sound and not to the embodiment of the sounds. In France the courts have held that a phonograph record, if it merely contains sounds, is not an infringement, because, the courts say, a sound can not be copyrighted; but where a phonograph contains words that have been copyrighted it is an infringement. The reason for that is that over a hundred years ago the French Government passed an act excepting from the operation of the copyright law music boxes which were imported into France in large quantities from Switzerland; and the court said that the law excepting music boxes from the copyright law would apply to these phonograph records; but if they contained copyrighted words they were an infringement.
Mr. BONYNGE. Then that ruling was because of a previous exception?
Mr. DYER. Yes. In Belgium, in Germany, in England, and in this country, up to date, phonograph records have been excepted from the operation of the statute. I think the record which we have before us gives a decision of the court of appeals in this district in which it was held by that court that a phonograph record was not an infringement of the copyright laws. No possible infringement of a copyright law, even under this act, could result from the making of the records themselves, because those records may never be used, or they may be kept until the rights have expired, or they may be
sent abroad. An infringement would only be committed when the dual thing happened, when the record, which represents a part of the infringing act, is brought into contact with the machine which makes the reproduction. In other words, the infringement would have to depend upon the doctrine of contributory infringement, as it is known in patent cases.
Mr. HINSHAW. This clause g refers to the making of a device as well as to selling it.
Mr. DYER. I do not see how the section could possibly apply to records which of themselves represent nothing at all. They are like a telegraphone record. They are nothing of themselves.
Mr. WEBB. That clause prohibits the use of them, does it not?
Mr. DYER. I believe it does, although I am not familiar with the provisions of the bill. I only want to speak on the general propositions involved.
There is a very marked distinction to be drawn between literature and music. Literature is something which conveys intellectual thought to the reader. Music, in the popular sense, and our records contain music of a popular kind, that is to say, instead of appealing to the head it appeals to the heels, as Mr. Ingersoll has stated, may be likened to a collection of pleasant sounds that make a pleasing impression on the mind through the instrumentality of the ear. Of course I recognize that there is music that will appeal to skilled persons like Mr. Sousa in which they can hear possibly an entire novel or an entire operatic production, but I refer to ordinary music, jingling music, like the music box. The law makes no distinction between pleasing music and music which appeals to those with a musical education. In other words, it is a collection of pleasing sounds. In other words, the composer is a musical chemist, whose works are heard through the agency of the ear.
If you gentlemen pass an act by which you are to monopolize any intellectual conception which makes a mental impression through the agency of the ear-in other words, if you depart from the decision of the Supreme Court and leave out the element of visibility-then why stop at the ear? For instance, Mr. Post, who invented the Postum Cereal, has an intellectual conception that he will produce a composition that will give an impression to the mind of a substitute for coffee. That is put on the market, and it does make a pleasing impression on the mind. It would be possible, under this act, by analogy, to copyright perfumes because they make a pleasing impression on the mind through the agency of the sense of smell.
So I submit that if we depart from the limited view the Supreme Court of the United States has given to the word " writing," as meaning something that conveys a mental impression through the agency of the eye, we ought not to stop at the ear. We ought to protect Mr. Post in his preparation, and we ought to protect the perfumers in their preparations. So that when Mr. Clemens spoke the other day in reference to his surprise that the oyster had not been included, he may have spoken more wisely than he knew. I am not sure, if this bill goes through, but what the oyster would be protected.
Mr. BONYNGE. Those things are patented, are they not?
Mr. DYER. It is very difficult to obtain a patent in cases of that kind.
Mr. CHANEY. What do you say with reference to the reading by raised letters by a blind man?
Mr. DYER. That can be read by other people, but a phonograph record is absolutely unreadable by anybody.
For example, I might mention to you, as lawyers, a subpoena duces tecum which provides for the production of writings. What have the courts said must be produced in reponse to a subpoena of that kind? The furthest they have gone is to say that you can produce drawings. You can make a man produce drawings, but you can not make a man produce a model of a machine under that subpoena. If this bill should become a law, then, by a parity of reasoning, it would be possible to compel a man to come in and divulge the mental impression within his mind.
Mr. CHANEY. What kind of process is used, then, to get patented improvements into court in the trial of cases?
Mr. DYER. You can subpœna a man and make him testify concerning it or get an order of the court, I suppose, requiring him to produce infringing goods, or you can file a bill of discovery which will enable you to go in and make an examination of the infringing mechanism.
Mr. HINSHAW. Is it not true in many countries that patents are granted not merely on the product which is produced by the inventive genius, but upon the process itself!
Mr. DYER. In this country it is true.
Mr. HINSHAW. And in some other countries. Wherein is the difference between that proposition under the patent law and this one we have here?
Mr. DYER. I had intended to devote some of my time to the discussion of the analogy between the question we have here and the question of patent law, because I know nothing about copyrights and I have made a study of the patent law.
Mr. WALKER. If Mr. Dyer will permit me to answer this specific question, I will say that the Constitution provides for promoting progress in useful arts, and in pursuance of that provision Congress has enacted statutes granting patents on processes, the processes being arts. In fact, the definition of the word "art," as it appears in the Constitution, is now somewhat narrower than was intended, and it is confined to particular processes, so that no art is patentable unless it is also a process.
Mr. DYER. I submit, gentlemen, that a radical change in the law would seriously disturb vested interests which have enormously developed under the present law. The National Phonograph has a pay roll of over $45,000 per week, over 4,000 employees, and makes over 100,000 records and 1,500 machines daily. Current music is as necessary as current news to a newspaper. The business has developed under the security of the present law, without protest from the publishers or composers, without suit, and without knowledge of an attempt to change the law. Many publishers, in fact have sought to popularize their productions by having them put on the phonograph.
The CHAIRMAN. How does the Edison Company secure the music that it is desired to put in use?
Mr. DYER. The committee has not heard about the situation and it may be of interest to know about it, because it is such a specialized industry. The records are made by what are known as "the talent." All told there are not more than twenty people who make it a business to go around and visit the three large talking-machine companies— the Columbia, at Bridgeport; the Edison Company, at Orange, and the Victor Company, at Philadelphia. Everyone can not sing into a phonograph. It requires a special talent to do it. You have to have a special kind of voice and a special technique. In singing certain notes they have to move close to the horns, and in singing other notes they move back. People who are singing these songs are constantly moving back and forth to produce the records. These people come to us with the music they propose to give us. They are like vaudeville artists. They say, "Here is a new song I would like to sing for you." The words of the song are written in typewriting, because the talking machines are only capable of running for about three minutes, and therefore an entire song can not be given. They usually give one verse and two choruses. If the song is short, they give two verses with the chorus.
Then by reason of the shortness of the record they frequently have the music scored out so as to fit on the machine. words, they come to us with their wares and sing them into the machine. We do not know whether they are copyrighted or not, or where they get them. I suppose in many cases we buy copyrighted music. I am not specially familiar with the business side of our enterprise.
But current music in the phonograph business is like current news to the newspapers. We have to have it. A man has a Victor talking machine and his neighbor, who has an Edison phonograph, hears that record and wants it. He writes down to us for that record and we furnish it. The poor people in the United States hear of the great operas that are going on in New York, and of these popular hits by the Rogers Brothers and people of that_kind, and they want to hear that music. They write in to us and say: Why don't you give us that record?" So that you see at once we have to supply popular music, just as the magazines supply popular news items, and the newspapers supply popular news
The CHAIRMAN. You have now reached the point, as I understand it, at which complaint is made. Mr. Sousa and other composers and authors of these popular airs object to having them used in the manner you have described, without giving them satisfactory compensation. What have you to say about that complaint?
Mr. DYER. I say, as to this complaint, that it is not founded in law, in ethics, or in morality. However, if the committee does not agree with my proposition and believes that something ought to be done, I would advise my client not to pay any further tribute, and I suppose the question of the constitutionality of the act would have to be settled. If that has to be done, then I submit that every possible safeguard should be provided in the act to protect these companies during the time that this is being litigated, so that we would not be harassed by injunctions and have our goods impounded and our business stopped pending a decision.