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The CHAIRMAN. Now we will hear Mr. Burton.
STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL.
The CHAIRMAN. Mr. Burton, will you not state your name to the stenographer?
Mr. BURTON. Charles S. Burton.
Mr. BURTON. I represent directly a client, the Melville Clark Piano Company, manufacturers of musical instruments, and the Q. R. S. Company, manufacturers of perforated rolls.
The CHAIRMAN. You present, as I understand, the bill that is upon our desks here, purporting to be submitted in behalf of the Clark Piano Company!
Mr. BURTON. Yes; so entitled in order that there may be no misunderstanding.
The CHAIRMAN. How much time do you wish?
Mr. BURTON. I think I can state what the Librarian indicated he desired I should state at this point in not to exceed twenty minutes, with the understanding that that matter is not to be discussed at this point, because I could not discuss the points in that time; but when the committee arrives at the point of taking up this subject, or the subjects which may be involved here later—and this matter may have had criticism–I should be glad if I might be heard to answer criticisms, if it is desired. I should be willing, if the committee preferred, to handle the whole matter now, but I understand that is not the programme. The suggestion that the matters touching automatic appliances for reproducing audible speech or music should be discussed later seemed a little bit inconsistent with this statement at this time, because in the main and vitally the matters of change I suggest relate to that subject. But nevertheless I will state in outline at this point, at the request of the committee, my suggestions.
The CHAIRMAN. In what respect does the bill you propose differ from the bill introduced in Congress?
The LIBRARIAN. That was to be his statement, sir—to point out the essential particulars in which the bill differs from the pending bill.
The CHAIRMAN. We will be glad to hear your statement from that point.
Mr. BURTON. Now, if the committee will refer to the pending bill by the sections as I shall name them, I can state by that reference most easily the differences.
The LIBRARIAN. You have on your desks, gentlemen, this printed statement, which contains what he proposes to refer to.
Mr. BURTON. Perhaps you may find it convenient to refer to that, although my references will be directly to the sections of the pending bill. The comparisons in detail are made there. I am not going to follow those detailed comparisons. They will be too numerous to be covered in twenty minutes. But by referring to section 1 of the pending bill, which states the scope of copyright, and comparing that with the corresponding sections of the substitute, some differences will be noted which I will mention.
In the first place, I should have said the numbers I refer to, though so far they agree, will be to the sections as numbered in the substitute bill instead of the pending bill; and copies of that are also, I understand, before the members of the committee.
In section 1 of the substitute draft, in the first place, there is included musical-dramatic with dramatic compositions as protected in respect to performance. In that respect the substitute differs from the pending bill; and from certain interpretations, which I believe to be incorrect, of the present statute, which covers all musical performance. I limit it in this modification to musicaldramatic performance, conceiving that to have been the intention of the present statute.
Second. This statement of the scope of copyright in the substitute recognizes a broad distinction between the original act and what may be called the various outgrowths, such as dramatizing, digesting, etc., which are stated in the sub-sections as the only ones that want the further protection. That change of statement of scope is found to be necessary for consistency in carrying out the main purpose of the amendment which I started out to make, which, as I stated, related to the matter of devices for audible reproduction,
Turn to section 6 of the substitute bill (I shall be obliged to move rapidly, because I am trying to get through in twenty minutes) the classification. By comparing that with the classification in the original bill differences will be noted; and there again I have proposed a reclassification in order to obtain consistency and convenience of reference to the classes in the other provisions.
Turn to section 13 of the substitute bill—the provision for registration, which it is required shall be accompanied by prima facie proof of authorship, as in the case of patents, that the party, the author, applying for registration shall make affidavit that he is the author, or that if the application is made by a party assignee of the author he shall accompany his application by proof of an assignment, except that provision is made also for anonymous authorship, as you will note by reference to that section.
Mr. CURRIER. Mr. Burton, do you incorporate in your substitute bill the working clause that is embodied in the bill S. 6330!
Mr. Burton. The working clause? I do not quite get that.
Mr. CURRIER. I mean the proviso there that protects the Typographical Union.
Mr. BURTON. Yes. I have made no changes in many parts of the bill. Although I have embodied them in a unitary bill, I have simply transcribed them for the purpose of unitary presentation, and not because I have any opinions upon them. I do not attempt to touch many parts of the bill. I might oppose them, or I might favor them. 'In fact, in looking over the comments, I find many criticism from other parties that I might give you, but they are out of my scope, and I do not touch those features of the bill. Many sections, in fact the greatest bulk by measure of the bill, are simply transcribed for the purpose of getting it into unitary form. I thought it necessary.
I might say this by way of apology: It might seem an intrusion
into the province of the committee to present a bill in this way; but while my ideas were not inconsistent with the phraseology in some sections, it seemed to me best to follow the entire bill through with every change that I have thought to suggest. So I rewrote the bill, simply incorporating sections without change where no change was necessary. I trust the convenience of the committee which may be served by this will constitute sufficient excuse for the presumption perhaps involved in that intrusion into the committee's province.
Mr. CHANEY. Have you noticed this print here, setting forth on one page the copyright bill, so-called, and your substitute draft on the other? Mr. BURTON. Yes; that has been done by the office, and that will
I will not go into those details now, but will simply state them in general; but the committee will find them all carried out in detail there. I have read the proof of that print, and while it was prepared by this office without my suggestion, it seems to have been very carefully done.
Section 13 I have mentioned.
Pass to section 20 of the substitute—the term of copyright. The change consists in limiting the copyright to twenty-eight years, as now, without provision for renewal; and as to the appliances for audible reproduction, limiting the term of patent to seventeen years.
I passed in its order point , in respect to the scope of copyright, section 3 of the substitute bill, which provides expressly for copyrighting these appliances for audible reproduction in virtue of the artistic effort, as, for example, the voice of the singer in reproducing the device for audible reproduction, and the skill of the performer in playing on the musical instrument, and the skill of the producer: in producing the perforated roll. This substitute recognizes that as having the same quality of authorship as the work of the photographer in selecting his point of view and posing his subject, and therefore allows a copyright for those appliances and limits the term.
Now I come to section 20. That limits the copyrights just mentioned to the term of the patents to which they are more closely analogous; and I may suggest there an oversight which occurred to me just now: There should be a limitation also at that point (it is not in the bill as printed) that the supplementary copyrights on these appliances should expire with the copyright on the composition which they reproduce. That is not in there, but I would sug
Section 23, with regard to penalties and recoveries: The change consists in reducing the penalty in respect to devices for reproducing automatically from $10, as in the bill, to $1. The devices themselves sell for very much less than $10. I presented my views on that subject to the committee before. The extravagance of these penalty provisions seemed to me unjust.
The change consists also in making the maximum limit of damages where no proof of actual damage was presented $250, at the discretion of the court, instead of a minimum of $250, as the bill now provides. That is where there was no proof whatever, and it was à matter simply of making a penalty that should be reasonable, regardless of any actual damage.
There is a slight change (slight in verbiage, though it may be material in effect) in subsection c of section 23, where provision was made for impounding and destroying all the devices for audible reproduction, which in the bill as it stands could be construed, and would, it seems to me, be likely to be construed, as involving the destruction of the entire operating plant. My suggestion of change there is adding the words “having no other use. That is, the appliances, devices, matrices, masters, etc., to be destroyed in case they are found infringing, should be those that have no use except for that purpose, so that it would not involve the destruction of machinery which has general use.
Section 39 of the substitute bill is an entire addition, and may be considered the vital point of the changes to which I have directed my attention. It consists in a provision recognizing an interest and a right on the part of the composer in respect of the automatic devices, devices for automatic reproduction audibly, which is apart entirely from his interest which the copyright directly protects. It provides that no person shall make, produce, or market these devices for audible reproduction without marking upon them the name of the author of the composition which they reproduce, and the title of his music, unless the author himself consents to the omission, and provides that the author shall be entitled to a royalty for the use of his name and his title, which may contribute to the sale of the devices—that royalty to be a reasonable one, and to be the same for all parties reproducing the same kind of device—that is, all who make a talking-machine device ought to have one royalty, uniform for all of them. Those who make a perforated roll ought to have a royalty uniform for all of them. Each royalty is to be fixed by agreement of parties, but in case they do not agree, by some manner in a court of equity, as set out here in detail. And in order to avoid collusion, which would defeat the result of that, I provide that the lowest royalty fixed by the court by agreement of the parties shall be the controlling one.
As that argument is not to be made at this point, I will make no statement
The CHAIRMAN. As I understand, you desire to argue that question?
Mr. BURTON. I understand that the committee will wish later to hear argument upon that subject, and I will be glad to be heard at that time on all these details, so far as the committee is desirous of hearing me, and in some respects I should like to be heard.
The CHAIRMAN. Very well.
Mr. BURTON. There are two omissions which constitute material changes. Section 1, subsection C, of the original bill is entirely omitted. That section makes provision for the copyrighting of oral works, sermons, speeches, etc. That seems to me entirely beyond the proper scope of the copyright law, and I omit that entirely.
Paragraph 2 of section 10 of the original bill is entirely omitted. That provides for the filing of manuscripts not to be published, to give a copyright in them by virtue of their being filed. Both those sections seem to me outside the scope of such a bill.
If I have answered the present purposes of the committee in this general statement, that is all I care to say at this time.
The CHAIRMAN. Let me ask you this question: As I understand from your remarks, the real purpose of your amendment relates to these musical devices?
Mr. BURTON. That was my purpose in starting out. Other changes, however
The CHAIRMAN. The other changes have been made simply to make more perfect, as you think, the bill as introduced in Congress, and to carry out the plan that you have in mind, making it a systematic measure. Is that right?
Mr. BURTON. That is my point. There are some details that I might criticize that I am passing by entirely because they are not within the scope of the subject I was considering.
The CHAIRMAN. Your real proposition relates to the musical device controversy? Is that right?
Mr. BURTON. That is right.
The LIBRARIAN. Mr. Chairman: Mr. Ogilvie was given assurance that he should be heard to-day because he is obliged to return to Chicago this afternoon.
The CHAIRMAN. Very well.
Mr. OGILVIE. Mr. Chairman and gentlemen of the committee, immediately after I left the conference in June Mr. Scott, of the Century Company, attempted to contradict some of the statements that I had made as to the necessity for the insertion of the American copyright notice in every edition of every book wherever it might be published. Mr. Scott contended that that was not necessary, and an ocular demonstration of the reason why Mr. Scott felt that that was not necessary is here in a copy of “ Lovey Mary,” a book of which the Century Company owns the copyright, but which is published abroad without a copyright notice. I think that clearly indicates Mr. Scott's desire to avoid the necessity for the insertion of that notice.
Mr. JOHNSON. Mr. Chairman, may I, as a member of the Century Company, tell the gentleman that the Century Company has no control over the English system of copyright registration or any of their customs in relation to the copyright? That is a matter which the British Parliament regulates.
Mr. OGILVIE. I have no desire to accuse Mr. Scott of attempting to govern British legislation. I simply say that the public in the United States are entitled to the protection which the laws here give them, and if I publish a book which contains no notice of copyright I should not lose the investment that I have made in the plates or be subjected to penalties because I am having published a book that does not comply with the laws of the United States. It is strictly within the ability of Congress to pass a law directing those who desire to retain a copyright in the United States as to what shall be done in every edition published wherever it may be published. The law as it stands to-day stops at the word “published," and does not require that the books be printed in the United States. The only requirement in that respect is contained in the revenue law.
For instance, if I publish a book in the United States, an American copyright book, and desire to have it printed in Canada, where