« iepriekšējāTurpināt »
Mr. O'Connell hands me one that reached him, that came to the Library after dinner to-night:
NEW YORK, N. Y., December 10, 1906. J. J. O'CONNELL, Esq.,
Care Librarian of Congress, Washington, D. C. In reply to Congressman Currier's question, what effect it will have on musical instrument manufacturers if supply of music is limited, the unanimous answer of our members is this: It will destroy the player business and will involve us in the loss of the immense sums we have invested. It will nullify the rights which we now have under our patent laws, and will put the whole American public into the hands of a monopoly.
J. WINTER, Chairman of Executive Committee, Player Manufacturers' League. Mr. Winter is the chairman of the executive committee of the association that Mr. O'Connell represents.
I received a telegram from the Connorized Music Company, of New York, as follows:
NEW YORK, December 10. Paul H. CROMELIN,
Care Library of Congress, Washington, D. C.: The principal product of our factory is a perforated paper roll, covered by United States letters patent. We have invested large capital in our business and plant, with the foreknowledge that in the pursuit of our business we have violated no laws. If the supply of new music should be limited, it would ruin our business.
CONNORIZED Music Co. Gentlemen, I have no interest in the piano-playing business, not to the extent of $1, and I know very little about it. I am simply giving you this as their testimony as addressed to me. Here is a communication from the Austin Organ Company:
HARTFORD, Conn., December 10, 1906. Paul HA CROMELIN,
Care Library Congress, Washington: The industry would certainly suffer. To what extent it would be very difficult
AUSTIN ORGAN Co.
The Automatic Musical Company, of Binghamton, N.Y., telegraphed me to-day as follows: Paul H. CROMELIN,
Care Librarian of Congress, Washington, D. C. If the supply of available music for our instruments was in any manner decreased our business would suffer very materially, as at the present time the supply does not meet demand for new rolls.
AUTOMATIC MUSICAL Co. I submit these for what they are worth. This is in answer to the question that Mr. Currier asked yesterday, and probably other replies will come in during the night or the morning.
The question has been asked, What is the size of this industry that is going to be affected adversely by this legislation? I have here sheets from the Music Trades of September 18, 1906, in which reference is made to the census report showing that the piano-playing houses of the United States, and the ones that are directly affected by this, without regard to talking machines, have a total capital of $56,000,000.
Now, gentlemen, I think it requires no reasoning, no argument, to show that every piano manufacturer in the United States is vitally interested in what you do with this bill. The demand for a player piano is growing at such a rate that it will be absolutely necessary and essential for them to have it if they are going to compete, if they are going to stay in the business. I speak as a business man. There are about 40 or 50 manufacturers now, and many of the houses that are not to-day making players are preparing to do so. If you pass this law you will absolutely cut them out from that business. They can not possibly get in, as the Æolian Company will control the perforated roll business.
Mr. CHANEY. That question as to whether it will or not is to be considered, you know.
Mr. CROMELIN. Yes; I think you will consider it well, Mr. Chaney.
Mr. BOWKER. That is exactly what we heard in 1891 from the book people, Mr. Cromelin.
Mr. CROMELIN. I will be very glad to talk to you a little later, Mr. Bowker.
Now, gentlemen, you are about to pass a law international in its effect. That is, you can not consider this subject of copyright from a national standpoint. You have got to look at it and view it from an international standpoint. The subject has been so thoroughly covered that I will detain you but a very few minutes on that particular branch. It is with a view of showing you what has happened in France under the decision of one or two years ago, referred to by Mr. Dyer this afternoon and at the risk of losing my chance for an extension of time, and tiring the committee, I am going to read a communication received from our assistant general manager in London, England, Mr. M. Dorian, a man who was in France at the time the adverse decision was given.
The decision, which has already been referred to, and is in the record, was this: That a record of the words of a song with music was
violation of the copyright; a record of the music itself was not a violation of the copyright, a most extraordinary conclusion to reach, because there has been no poet, author, or other literary person here asking for the protection granted under paragraph G. All the demand comes from the publishers and one or two musical composers. But in France it has been held that the reproduction of the words alone, whether it be a song or whether it be the spoken word of a copyrighted selection, is a violation of the copyright. Now let us see how that has worked out:
COLUMBIA PHONOGRAPH COMPANY,
89 Great Eastern Street, London, E. C., July 19, 1906. DEAR MR. CROMELIN: Inclosed find copy of a letter I am sending Mr. Cameron and which you may find some use for. It was prepared at his request. It deals only with the situation in France. You are already familiar with the futile efforts made in Belgium, Germany, and England. With kind regards, sincerely, yours,
M. DORIAN. This letter is addressed to our Mr. S. T. Cameron, who appeared before your committee last June, and who is detained at Cleveland, Ohio, on a case, and for that reason is not here:
JULY 19, 1906. S. T. CAMERON, Esq.,
620 F Street NW., Washington, D. C. DEAR MR. CAMERON: It may be of some assistance to you to know how the copyright law, as applied to talking machines, has operated in France since the decree of
February 1, 1905, by which the court recognized the right of the music publishers to tax talking-machine records. The decree in question is based upon a very old French statute. The provisions of this statute, which are drastic, were modified by a later statute enacted after a treaty with Switzerland. This amendment exempted all instruments which reproduced music mechanically, and was meant to take Swiss music boxes and similar instruments out of the purview of the original statute. Of course the talking machine was unknown at the time these two statutes were enacted.
When the case was argued in the French courts the attorneys for the talkingmachine manufacturers contended that the amendment to the original statute clearly covered talking machines because they are purely mechanical, and although not specifically mentioned are undoubtedly entitled to the same privileges as the other mechanical reproducers of music. The argument is undoubtedly sound, but the court, probably in a spirit of compromise, admitted its pertinency in part only. That is to say, they held that where music only was reproduced it did not constitute a violation of the statute, but where words, as of a song, were also reproduced, the words were an infraction and must be treated as an infringement of the publisher's rights.
It is difficult to understand how they arrived at this conclusion. It is believed that their decision will be reversed when the appeal now pending is heard.
The decree, which is executory, i. e., became operative at once notwithstanding the appeal, made it possible for the music publishers to harass and threaten the manufacturers of talking-machine records throughout France and her colonies. Their first move, through their agent Vives, was to demand large sums of money from the manufacturers as indemnity for past infringements, that is to say, from the date of first filing of their suit to the date of the decree.
I want to say there was a situation there quite akin to this. Vives undertook to try that case out, and he was going to get a percentage in the event that he won, in the same way that the Aeolian Company are going to try that case out, and they are going to be relieved of ail responsibility at first—but God help the other fellows--and are going to have a monopoly in the future. (Reading:)
Their first move through their agent, Vives, was to demand large sums of money from the manufacturers as indemnity for past infringements, that is to say from the date of first filing of their suit to the date of the decree. These demands were accompanied by threats of drastic measures to enforce the same. The result was a panic. All of the establishments engaged in the manufacture and sale of records were closed tight, and business entirely suspended. One large concern, Pathé Frères, employing a small army of workmen, closed down for more than a week at an enormous loss to the company and depriving their workmen of their livelihood. In the interval the heads of this concern were in daily and almost hourly conference with the music publishers, and were finally forced to pay a large sum (£100,000) before they could feel safe in resuming operations. Some of the threats made by the publishers were that they would seize matrices and moulds and the visible stock of recorde; that they would place a sheriff in each store; that they would confiscate records and machines in the hands of the manufacturers and their dealers, etc. Notices and warnings were sent to prominent dealers to the effect that they would be proceeded against if they offered for sale any records not authorized by them, the publishers, and copies of these warnings were served upon the manufacturers as additional coercive measures. The publishers demanded the right of placing one of their representatives in the establishment of each manufacturer to audit the accounts for the purpose of verifying the statement of sales, etc. Before they would furnish labels to be affixed to the records they demanded that they be furnished with sworn statements showing the quantity of records sold during the period (six years) for which they claimed indemnity.
Some of the manufacturers complied with all of these demands, and their compliance only resulted in fresh and still more burdensome demands. One or two Îarge concerns refused to have their operations controlled in this manner, although some of them, in order to obtain a provisional supply of labels with which to resume operations, signed a contract waiving their right of appeal and recognizing the rights of the publishers not only in France, but in other countries as well, even in countries where no copyright law existed. Those who refused to so bind themselves were singled out for every species of petty annoyance which the fertile brains of the publishers could devise.
In addition to the above exactions the publishers notified the manufacturers and dealers that, notwithstanding the decision of the court that records of orchestra or band selections did not infringe, labels must be affixed to these also, and that failure to comply would involve further measures of coercion. Blackmail, pure and simple, because the language of the court did not leave room for discussion. Some of the manufacturers complied even while complaining of the injustice, because, as they thought and said, they could not afford to resist. Others took the matter into court upon a motion to have the court construe its own decree. When the motion was called the publishers, by their attorneys, said they must admit that there was no room for argument and must concede the point. The motion was therefore not argued, and the court passed no order, the admission of the music publishers disposing of the point definitely. The annoyance and expense imposed upon the manufacturers, however, was just as great and quite as unjustified as anything could well be. It shows conclusively the spirit manifested by the monopoly.
At the time the original decree was announced by the court the full text was published in all the principal papers in the country. In addition all of the manufacturers printed at their own expense circular letters analyzing the decree and pointing out the need for labelling all records before offering them for sale. These letters were sent to every dealer. Their contents were well known to the publishers. In every instance they contained, in one form or another, a warning that the manufacturers would not accept responsibility for any records not labeled, and offering to label any records returned to them or to send the labels to the dealer to be affixed by him if a proper demand were made for them.
The language of the decree imposed a penalty only on those records which should be "published and sold,” and the warning of the manufacturers went further than was necessary, but this was because they wished to place their dealers on the safest ground. The liability, if there should be failure to label, would be with the dealer.
Notwithstanding these precautions, the publishers, through their paid spies found in some remote points records which were not labeled. In some cases they were old wornout records which had been taken in exchange by the dealer and were not intended for sale; in fact were unsaleable. In other cases the dealer made it a practice not to affix the labels, until the records were actually sold, they remaining in his shelves unlabeled until sale. The publishers seized all such records, and then made a demand upon the manufacturer whose mark they bore for a penalty, and where this was refused sent him threatening communications. In one case the manufacturer was a foreign company, and an attachment was laid upon its bank account on the pretext that it, being a foreign corporation, could close up its business and remove its assets, etc. To release the funds this company was forced to invoke the aid of the courts and to employ expensive counsel. The court, on hearing the facts, quashed the attachment on the ground that it was ridiculous, as the manufacturer could not be held responsible for the failure of a dealer to label his records.
The next move of the publishers was to require that all records, reserve stock, as well as dead stock, be labeled before being placed in the house; that it made no difference that the records were stored in a separate part of the premises from the sales room. This meant that if a dealer had any reserve stock he must label all of it without regard to whether a certain per cent of it might never find a buyer. Aside from the hardship it imposed upon the dealer with a small working capital, it was in direct conflict with the terms of the decree, which imposed the labels only in case of sale. The publishers were, of course, fully aware of this, but counted upon the dealer being unwilling to go to the expense of contesting the matter. It was a case of bulldozing the timid dealer into buying a much larger number of labels than he actually required. Most of them complied. Some others went through their stocks and destroyed thousands of records which were slow movers rather than spend money in labeling those which in all probability would never be sold. There are, on the shelves of dealers in France, thousands of records bearing these labels which will never be sold, and in most cases the money which they represent was filched from people who were too poor to employ lawyers to protect them.
The principal counsel for the music publishers when the case was present before the court was an eminent lawyer and politician who is now a member of the present French ministry. He had a greater interest in the case than his mere fees--that is to say, he was a partner with the publishers in the speculation, and he apparently continues in that capacity.
Soon after his confirmation as a minister he secured an official order from one of his ministerial confreres addressed to the customs officers throughout France, instructing them to seize at the customs-houses any records coming in which were not labeled. As all disk records sold in France, with one exception, are manufactured outside of France, it makes it necessary for the makers to label the records at the factory. As the affixing of the wrong label is held to be no labeling at all there is opening for endless trouble and expense, all of which redounds to the benefit of the
French concern which has arranged matters with the publishers. Different labels have been devised for different publishers, and the maker or dealer must see to it that he does not put “A’g” label on “B's" composition, etc., under penalty of seizure and fine.
From start to finish the publishers have used the law to gouge and to harass. It is true all these things have occurred in France, but human nature is much the same throughout the world, and there can be no guarantee that much the same methods will not be applied in America, especially when it is considered that the same people who are profiting by the monoply in France are the prime movers in the American agitation, and already have in their possession signed contracts giving them control in the event of the passage of a law such as has been proposed. The existence of such contracts is an open secret on this side, although it would probably be difficult of proof.
Hoping this frank statement of what is happening in France may be of service to the committees of Congress and yourself, I am, sincerely, yours,
Assistant General Manager. The CHAIRMAN. Mr. Cromelin, you have already occupied at least fifty-five minutes, and that leaves Mr. O'Connell less than thirty minutes if we insist upon strict limitation of the time.
Mr. CROMELIN. Senator, I leave it entirely to you; but I sincerely trust that you will give us an opportunity to present our case in its entirety. Paragraph (g) is the only portion of the bill which is revolutionary in its character. It sets up property rights that do not now exist, which no government has ever attempted to recognize by legislative action before. I would like to have an opportunity to show you the situation in Germany, that our friend Mr. Burkan has referred to, because the situation is intimately connected with the one here. The Choralian Company (the Æolian Company under the name of the Choralian Company) has obtained a monopoly in Germany, and if you care to
into that I will be very glad to put myself entirely at your disposal.
Mr. O'CONNELL. Mr. Chairman, Mr. Cromelin might, perhaps, accede to this suggestion. I understand that you have set apart a possible thirty minutes in the morning for Mr. Mauro, who is his patent counsel, counsel for the Columbia Phonograph Company. The time having been taken now which, perhaps, belongs to me, if Mr. Cromelin wishes to continue, why not let him take the time of his own counsel, and give me the thirty minutes in the morning which his own counsel would have had ?
Mr. CROMELIN. I am perfectly willing to do that, Mr. O'Connell, if it is agreeable to the committee.
The CHAIRMAN. What is the name of the gentleman you mention?
Mr. CROMELIN. Well, I will ask permission to file a brief and have Mr. Mauro file a brief, if you say so.
The CHAIRMAN. When we began this branch of the case, it was distinctly stated by you gentlemen that five hours was all that you would require, and in order to make sure that you should have that time, at some inconvenience to ourselves, we consented to the evening session.
Mr. CROMELIN. I appreciate it, Senator.
The CHAIRMAN. And it was distinctly stated, further, that you gentlemen should divide that five hours in such manner as you saw fit. Mr. O'Connell is already limited, if we strictly adhere to that rule, to twenty-five minutes. Now, as I stated this afternoon, we can not expect when we report the bill that it shall meet the approval of all