Gentlemen, passing to some other features of the bill; I am not going to discuss them but briefly and suggest one or two amendments which have occurred to me. In section 15, page 11, after the word " copyright," line 20, insert "during such period only;" the thought there being to prevent actions for infringement for publication during the period of time in which a copyright might not have been perfected. It simply provides here that the action might not be brought during that time. On page 18, line 3, make it read "public performance for profit." Mr. CHANEY. Yes; we have had that already in that shape. Mr. POUND. On line 9, same page, after the word "conditions," insert "a sufficient security." Mr. CHANEY. Do you think that is necessary? 66 Mr. POUND. Yes; I will speak of that, and after the word "rights," on the eleventh line, same page, insert upon notice and upon such terms, conditions, and security as the court may prescribe. The CHAIRMAN. Why do you say that is necessary in the light of the words "6 upon such terms and conditions as the court may pre scribe?" Mr. POUND. Because I believe in the first place that any remedy as drastic as proposed in this bill should not be granted in any case ex parte. Mr. CURRIER. With the first amendment you have offered, "a sufficient security," don't you cover every single word by inserting "upon such terms, notice, and conditions?" Mr. POUND. I believe, possibly, I do; but I thought this might make it a little stronger. Mr. CURRIER. The only addition there seems to be the word "notice?" Mr. POUND. Yes; that was my particular idea. Mr. CHANEY. The court would not undertake to do it without giving notice? Mr. POUND. Well we do get such things, you know, all the time. Mr. CHANEY. Well, I do not know where. It has not been my experience. Mr. O'CONNELL. Would not that leave it to the court to say whether notice was required or not? "Upon such terms, notice, and conditions as the court may require." The CHAIRMAN. Have you ever known a case where the court has directed that this be done without notice? Mr. O'CONNELL. Not that to be done, but I have known a great many ex parte injunctions to be granted. The CHAIRMAN. Where they are granted ex parte, is there not always power in the court to hear, upon application of the adverse party? Mr. O'CONNELL. Yes; but that would leave it open, it would leave it to the court to say whether in a given case notice was necessary. Mr. POUND. And in the meantime what is to become of our business? Is it to be shut up? 66 Mr. O'CONNELL. I suggest that you change it, and say and upon such terms and conditions as the court may," etc. Mr. CURRIER. Make it imperative as to notice. Mr. O'CONNELL. Yes. Mr. POUND. Most certainly, yes. Mr. BURKAN. Suppose in the case upon notice Mr. POUND. Pardon me one moment. Senator SMOOT. Do you object to the suggestion that the Supreme Court be directed to make the rules for carrying out this law? Mr. POUND. We do not object to that. Mr. WALKER. If you will permit me, I will suggest there that I think that is an entirely unwise scheme, because rules will have to be numerous and complex, and the Supreme Court will have no way of inventing them. Senator SMOOT. That is the reason I asked you if you wished to say anything on that point. Mr. WALKER. I have not spoken on the subject, and I took this opportunity, with Mr. Pound's permission, to express that suggestion. Mr. POUND. On page 26, line 10, change the word "may" to "shall." Mr. CHANEY. So that actions arising under this act shall be instituted in the District, etc. Mr. POUND. Yes, and omit all of that paragraph after the word "inhabitants." Mr. CHANEY. Or in the district where the violation of this act has occurred. Mr. POUND. Yes. Mr. LEGARE. Why? Mr. CHANEY. I should think you might damage somebody's chances and make it expensive. Mr. POUND. No, the publication, I presume, would be held to befor instance, if some one ordered this roll of music from my client and sent $1, and this was expressed or mailed and in some way delivered to them, we will say at Honolulu, I take it that the violation of the act would be at Honolulu. The CHAIRMAN. Were you here the other day when I made the suggestion in regard to a modification of that provision substantially this, "actions arising under this act may be instituted in the district of which defendant or his agent is an inhabitant or may be found." Would you object to that provision? Mr. POUND. I do not see but what that answers the purpose. Mr. CHANEY. Well, that was the form suggested the other day. The CHAIRMAN. It was not offered. It was simply a suggestion. Mr. POUND. We do not object to any reasonable provision, but we simply do not want to be at the mercy of somebody who will order a one-dollar roll away off at the uttermost limits of the earth and then sue us there. It would cost us more to defend it than it would be worth, and would put us at the mercy of anybody who so chose. Mr. MCGAVIN. But under your plan it would be an inconvenience to the plaintiff? Mr. POUND. No; along that line I wish to say that any litigation which arises that is honest and sincere is not going to arise from the mere sale of one of these rolls. It is going to be from some heavy and persistent_violation, and that is going to be a matter of much importance. It is going to represent large interests. It is going to be like this litigation that is going on now, where the Æolian Company has furnished the sinews of war for this White Company, plaintiff and appellant in the case on appeal in the Supreme Court, and it makes very little difference to them where that action is fought out. It is only to protect us against these little scattered suits all over the land where some fellow could hold us up for $50, and it would not pay us to go and fight it. It would simply amount to paying that fellow tribute. The CHAIRMAN. Somebody stated the other day, when some gentleman began the discussion of that, that it was not the purpose of the committee to permit a provision in this bill that would authorize the commencement of suits in the Philippine Islands, for instance, or the Sandwich Islands, or at any unreasonable place. Mr. POUND. That is all we desire. The CHAIRMAN. And for that reason the committee declined to permit discussion on that question. Mr. O'CONNELL. Mr. Chairman, may I make a suggestion in regard to the venue of the action, as to whether that covers criminal prosecutions provided for by one section of the act; in other words, whether a defendant who is accused of willfully violating any provision of the act is taken for trial to the Federal district where the plaintiff resides? The CHAIRMAN. My suggestion was rather in the nature of an inquiry whether that amendment would not satisfy the interests of all concerned, leaving it so that the action might be brought in any district where the defendant is or his agent is an inhabitant or might be found. I think that would cover almost every case. Mr. POUND. One more remark, Mr. Chairman, and I shall conclude. I approach with some degree of embarrassment now the topic suggested by the chairman a few moments ago as to whether my clients would be content to pay royalty. I believe very frankly that the question should not properly be here, and I want to preface what I am going to say by stating that we believe this entire feature should be eliminated from this bill; that if it is even in contemplation it should be a separate bill, devoted solely to the purpose of musical copyright. But if in its decision of this question the committee reaches that point where it determines that there shall be some royalty here, we ask you then to consider in that connection our argument upon this question on this score of monopoly here, and we ask you not to enact the provisions of this bill as contained in the latter part of subsections (f) and (g,) because we believe they would put us entirely and totally at the mercy of this trust. The proponents of this bill say that any royalty provided for as a royalty would be unconstitutional. The opponents of this bill say the bill is unconstitutional in its present form. Where, then, is the legal provision which can meet the requirements of these two classes of gentlemen, which will meet all demand for royalty, if such there be? Some mature reflection upon that subject prompts me to suggest this proposition. Strike out of the bill the latter part of (f) and all of (g,) and all reference to musical coypyrights, and insert this provision Mr. CURRIER. Where does that come in-under (f?) I presume it would have to come at the end. Mr. CHANEY. It would be after (e.) Senator SMOOT. It would be the proviso of (f,) would it not? What do you strike out of (f)? What words in (f) do you propose to strike out? Mr. POUND. Everything after the word "thereof" in the tenth line. Mr. CHANEY. You propose to strike out all of (f) after the word thereof," and simply have it read "to publicly perform a copyrighted musical work, or any part thereof?" 66 Mr. POUND. Yes, my thought being that that has reference to a public performance for profit. For instance, something that would take place in a theater. I do not take it that, as it would then stand, would include the playing of a piece of music on a phonograph in your home. Mr. BONYNGE. But according to the argument of Mr. Walker and some of the other opponents of the bill, that portion of (f) which you retain is just as unconstitutional as any other part of (f) or (g). Mr. POUND. Possibly so. Mr. CURRIER. That is Mr. Walker's claim. Mr. POUND. I realize that that is so from their standpoint. Mr. CHANEY. Now you strike out all of (g), do you? Mr. POUND. Yes. Mr. CURRIER. And all of (f) after the word "thereof." Mr. POUND. And insert the following: Provided, That the purposes of this act be deemed not to include perforated music rolls for playing mechanical instruments or records used for the reproduction of sound waves, or matrices, or other appliances by which such rolls or records, respectively, are made. The CHAIRMAN. That is taken from the English law? Mr. POUND. Yes; adding to that now this statement, in words or substance: Provided, however, That in case the applicant for copyright shall file with his application for such copyright his consent or willingness that the subject thereof may be reproduced on or in records as used in connection with automatic playing instruments in whatever form they may be, upon payment of a royalty of two cents upon and for each and every reproduction thereof, then the copyright thereon granted shall be extended to and shall cover such mechanical reproductions. Mr. CURRIER. That gives him the right to reserve altogether the piece of music from mechanical means, so that he does it to all. Mr. POUND. That would give everybody the same free, equal opportunity. It would give a universal right. Now, let us get at the present royalty that a composer receives. The average has been carefully figured out. Some of my associates can give you the computation by which it is arrived at. That average is found to be something about a cent and a half. I do not mean to say but what there are exceptions where they get more. I do not mean but what some successes go very high; but take all music published, and the average royalty to each composer on each sheet of music has been determined to be about a cent and a half. Mr. FURNESS. How do you make the calculation? Mr. POUND. My associates will give the figures if desired. But for the purposes of this suggestion I have computed it at 2 cents, merely as furnishing some criterion to go by. In the case of this one company, whose representative told you to-day that they made 100,000 records a day, you can very well see that those composers whose selections become noted and have a sale will, at almost any price, receive a large income. Mr. CURRIER. Two cents a day would give $2,000 a day? Mr. POUND. Yes; that one firm would have to pay that sum daily for royalties. Now, gentlemen, I am going to conclude, because I feel I should not trespass longer upon your time. Senator SMOOT. Do you think a royalty of 2 cents on each one of these pieces would make any difference in so far as the retail price to the public is concerned? Mr. POUND. I think possibly if it is kept down to 2 cents, so far as my clients are concerned, it would not make any differerce; no. Of course, any royalty much higher than that would simply amount to the public paying for it. But, gentlemen, our contention is that all we want here and all we do want is simply justice and protection against this proposed monopoly. That is the gist and purpose of what we are here for. We do not want to trespass on any man's rights. We never have done it under the law of the land so far, and we do not want to be turned over to these people and be confronted with such contracts as you have here in evidence and be told that we can not do business because they have a monopoly of all the music published. Mr. WEBB. Do you know whether this company is the only one that copyrights all of its perforated sheets? Mr. POUND. So far as I have been able to learn. Mr. HEDGELAND. I have made a search, and that is the only company with the exception of one more. Mr. POUND. We did not anticipate this bill. We did not know any thing about it until the June hearing. We were not preparing for this since March, 1902, as the Eolian people were. Mr. BURKAN. Mr. Pound, you stated to the committee that in Germany and in no other country has any such law been enacted which makes a phonographic roll an infringement of copyright. Mr. POUND. That is my belief. Mr. BURKAN. Are you aware that the supreme court in Germany decided that a perforated roll was an infringement, and later on a treaty was made with Switzerland, and before Switzerland agreed to go into the treaty and have it signed there was a provision put into it that these perforated rolls shall be exempt from payment of any royalty or from the payment of any price to the composer, and that later on an act was passed in Germany in accordance with that treaty and that in that way that decision was overruled? I Mr. POUND. No, I think you are slightly mistaken about that. think the decision held that as long as a perforated roll was a mere mechanical reproduction it was not a violation of copyright, but if they manufactured a perforated paper roll and placed it upon the market with a claim that it was a work of art, that it went further than that, that it was from a musical standpoint a masterpiece, then it was subject to copyright. I have here a cylinder such as is made by my clients. You will observe it is about 6 feet long and 18 inches in diameter. Do you want us to file 9,000 of those here, two copies of them? Can anybody read that, or even tell me how many tunes there are there on that roll? There are, in fact, ten on that roll. Mr. SOUSA. Can I ask if this became a law and I got a copyright on my composition and sold the right to you, if that would protect you without your filing that? Mr. BONYNGE. What would be the necessity of filing this if the copyright to the composer protected you as against other rolls being made similar to that?' Mr. POUND. Because I believe that this law, especially that part which says "or any material part thereof," would be construed, and justly so, to cover not only the copyright that is obtained on the musical composition, but also the reproduction of it. This melody that is here produced on this cylinder is not in the form in which it is |