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that he will be compelled to see that all inventors are treated on an equal basis. My company is one of the largest independent manufacturers of player pianos in the world, and I, as a player man, feel strongly opposed against measures which will retard the growth and development of this industry. Very truly, yours,
THE AUTO-GRAND Piano Co.,
Per ALBERT KRELL, President. The following is the article from the “Musical Age” referred to during Mr. Cromelin's remarks:
[Paul H. Cromelin in the Musical Age.]
REVIEWS THE SITUATION.
There has been more or less agitation on this subject for the past several years, originating, I believe, in Europe, with a view to protecting the so-called rights of the authors and composers in so far as mechanical reproduction is concerned. In 1900, in Germany, case reached the highest court in which this question was involved: Whether or not the manufacturer of a mechanically-played instrument using a steel disc interfered with the copyright laws of the land as then understood. The case went against the manufacturer, and I believe that the amount of damage assessed was something like 30,000 marks. Immediately thereafter, as the ruling seemed to be againet public sentiment, a movement was started to pass a new law which would make it possible for manufacturers of mechanical musical instruments to have perfect freedom in the use of all copyrighted pieces. That law was passed in 1901 by the Reichstag. Prior to its passage the talking machine industry became alarmed at a very innocent little clause that was added to the bill, which seemed to be directly aimed at their interests. As I recollect it, translated, it reads something like the following:
“That the right of perfect freedom of reproduction is granted to all mechanical instruments except those where the exact time and personal interpretation of the piece could be considered as embodied in the mechanical instrumental playing.”
THE RESULT IN GERMANY.
Nobody knew what that meant, so we called a meeting in Berlin, at which the German Gramophone Company, the Columbia Company, and all the German companies were represented, with a view to having that clause defined and with a view to removing the string in so far as the talking machines were concerned. We succeeded in getting the minister of justice, prior to the third reading of the bill, to interpret the law for us. You know it is customary there to interpret the law before a bill has been enacted by having a judicial body pass upon it, and when a law is once on the statute books no court would dare to declare it unlawful. The minister of justice stated clearly that this clause did not have reference to talking machines and was not to be construed as meaning gramophones, graphophones, phonographs, etc., but was especially intended to mean those mechanical piano-playing instruments where it was possible to interpret the exact intention of the composer; for example, the metrolistic addition to the pianola, etc. The result was that the Pianola Com. pany, which had been fighting hard for a monopoly, and, as I have been informed, had already secured contracts from the leading composers, were able by means of this very innocent addition to the bill to get a monopoly in Germany, close contracts with the principal publishing houses, and make the manufacturers of other instruments pay tribute to them for the use of the rolls or prevent them getting such.
TROUBLE IN FRANCE.
This question came up later, in a very peculiar way, in France. A man named Vives, formerly in the talking-machine industry, undertook, on behalf of the Society of Editors and Composers, to bring suits in the name of certain composers against a manufacturer of talking-machine records and test the rights of the composer. He assumed all costs and was to receive a large percentage of all.sums eventually collected from the various manufacturers. Pathé Frères were the defendants in this case. The case in the lower court went against Vives. In the higher court his contention was sustained, the decision of the court being along the following lines: That musical reproductions were free--absolutely free; but musical reproductions involving the use of words were violations of the copyright laws. In other words, a musical reproduction was perfectly free to everybody; but to reproduce a song with the music was made impossible unless first by an arrangement with the composer or publisher.
The result was that Vives and his associates commenced a campaign against the talking-machine industry, which threw it into a panic. Under the laws a manufacturer could be fined and imprisoned for an offense of this kind. Several of the concerns shut their doors. The Gramophone and Typewriter Company's establishment in Paris was shut for several days. We never closed, but fought every point; but after much negotiation it became necessary for us to pay, as well as for the other companies to pay, thousands of francs for immunity. Of course the public eventually had to pay by reason of increased prices of the records. It was reported to me that Vives had secured more than a hundred thousand dollars from the various interests involved. He secured so much, in fact, that it was said he was losing his mind, and he used his money indulging in all sorts of extravagances, predicting what he was going to do to the industry throughout the world would keep them on the run for awhile, and to his suffering brothers across the seas who were not receiving royalties a message of hope was sent: “It'll be all right over there after awhile, when we have a chance to establish your rights.”
I understand that this was the beginning of the movement in America, and that some persons are ambitious to duplicate in America what Vives and his associates have done in France.
TRIBUTE TO GRAFTERS.
At any rate we are paying to-day to Vives and associate men who never composed a piece, could not compose, and who have done nothing entitling them to it, a heavy tribute. This thing is likely to result in a national scandal, b' cause one of the counsel in that case, now a member of the French cabinet, has secured a ministerial order to the effect that all talking-machine records of any kind that enter France are to be presumed violations of the copyright laws unless proved otherwise. In other words, records of pieces, whether they have any reference to French copyrights or not, which you attempt to pass across the border have first to go through those few ports of entry which are ports for the reception of copyright matter (three or four ports) ; second, the onus and burden is placed upon the manufacturer to prove what is on that record. If you want to escape this trouble (and it is an almost impossible task), you have to pay your little 5-cent tribute and stamp up your records in advance. The matter has been brought to the attention of the American State Department and to the attention of the consul-general, and the case is now before a final court of appeals, with the statement that there is not one chance in a thousand that we will be able to succeed, the theory being that the decision of the court below will be sustained.
THE ENGLISH SITUATION.
In England a case came up-a perforated-roll case—and the courts have held that the perforated roll in England is not a violation. That was before the passage of the O'Connor bill. The piano-playing roll has always been declared not a violation of the copyright in France. The only success they have had with the talking machine in those cases where the words are alone, or by reason of an executive order, the law has been extended so as practically to embrace everything,
The copyright matter has been before the House of Parliament in London in one shape or another for many years, and finally became a law during the last session of Parliament. The measure is known as the O'Connor bill and originally contained passages which would have been greatly to the detriment of mechanical players and talking machines. You are probably all familiar with the action that was taken. Through the efforts of talking-machine men clause was added which made it
perfectly plain that the law was not to be construed as covering perforated rolls, talkingmachine records, etc.
THE BELGIAN CASE.
A case similar to the one of Vives and his associates against Pathé Frères was carried to final issue in Belgium, this being apparently a link in the international hain of actions which has now reached our country. The Belgian courts held that nder the Berne convention, held years ago, the rights of composers and mechanical layers were clearly defined and that the composers had no rights.
MONOPOLY IN ITALY.
In Italy a case reached final issue since the last session of the American Congress, and the rights of the composers were sustained to this extent: All musical compositions are divided into three classes; the first class representing pieces that have been composed in the last forty years and another embracing all compositions for the past fifty years. The result is that the largest music publishing house in Italy, Ricordi & Co., of Milan, who are the principal owners of the so-called Fonopio Company, manufacturers of records and disks, have obtained a monopoly. They have already granted to the Fonopio Company the exclusive right to manufacture disks, and that included all the modern compositions of Verdi, Leoncavallo, Mascagni, and other celebrities, and they are considering granting licenses upon pieces of the second class upon payment of certain fees, and also pieces of the third class. The Gramophone Company has been negotiating with them. We ourselves are very much interested. We have invested thousands of dollars in Italy and have been in negotiation with them for the protection of ourselves. Most of the companies quickly withdrew such records as were covered by the decision from their catalogues and warned their dealers against handling them, with a view of avoiding entanglements such as occurred in France.
BEGINNING OF THE AMERICAN FIGHT,
You are all familiar with the American case, White-Smith v. Apollo Co., and with the decision by the New York court of appeals that the perforated roll is not a violation of copyright.
These cases bring us up to the proposed American copyright legislation now pending before Congress. Toward the closing days of the last Congress an Associated Press dispatch was printed to the effect that there would be a meeting in Washington of a so-called copyright conference, to be held at the office of the Librarian of Congress, in Washington, D. C., on a certain day, and that those persons who were interested were invited to be present. The item stated that hearings would be had before the joint Committees on Patents of the House and Senate, and that thereafter the bill would be reported in both Houses. On the day that the report went outand it is inferred that it was issued by the authority of the copyright office—the bill was actually introduced into both Houses of Congress. In other words, it was not introduced after the conference and hearings were to be held, but on that very day that the first news item concerning its introduction reached the public. I had heard from time to time of the copyright conferences, but never could get inforuation in regard to them. I always had my own impressions as to what was going on, knowing the European situation, so I went to Washington.
There was a meeting at the office of the Librarian of Congress at 4 o'clock in the afternoon the day before the first meeting of the Congressional committee. The meeting was called together by the Librarian of Congress, and a temporary chairman and secretary elected. Motion was made that the Librarian of Congress be instructed to present the bill, as finally prepared, to the committee the next morning as representing the unanimous sentiment of those interested in copyright legislation. We had just then received copies of the bill for the first time. One of the trade papers, the Musical Age, I think, had secured an advance copy of the bill and published some of the paragraphs in it, which were revolutionary in character; things which had not been attempted in any other country and which would jeopardize our own interests and those of you who make mechanical instruments of any kind whatso
When the motion was put, some man got up (we were all strangers) and suggested that it seemed hardly the appropriate thing to do. The account of this meeting does not appear in the records of the copyright conferences as compiled by the Congressional committee.
This man had hardly gotten on his feet when someone else jumped up and asked: “Who is the gentleman speaking? Is he a member of the conference? If not, he is out of order and he has no place here.” That caused something of a sensation. I think it was Mr. Walker, a well-known authority on patents, who arose and stated that he was not a member of the conference; had not been informed as to what had been done, but he had received an invitation to come down. If the last speaker's remarks meant that he had no right to speak, he wanted to know it.
I stated that I had come from New York on an Associated Press dispatch; that I had an interest there; that I wanted to be heard on the subject, and would like to know whether or not I had a right to speak. Then a man from Chicago arose and stated that he had just gotten in at 2 o'clock and rushed up to the meeting, and he felt sure that if all the manufacturers of the country interested knew what was in that bill the Library would not hold all who would have attended.
At this point a member of the International Typographical Union arose, a Mr. O'Sullivan, I believe, and stated that he was quite sure that there would be people who would butt in at the last moment, and who would not approve of all the sections of the bill, but that the chairman would bear him out that they had spent a whole year and a great deal of money in working up this bill, and this was the bill, without one comma changed, that was going to be presented the next morning to the members of the committee as representing the unanimous sentiment of the conference. “Of course,” said he, “we do not expect to please everybody, but they are all out of order, and the Chair should rule them out of order."
The Librarian then was beginning to get a little agitated, and someone suggested that the resolution should be altered so as to read as follows:
“Resolved, That the copyright bill as prepared represents the unanimous sentiment of the associations which were represented at the copyright conference.”
A vote was then attempted. We would not recognize their right to shut us up. Someone, representing, I think, the Kimball Company, put the final knife into the resolution by stating in a very mild and gentle way how highly inappropriate it would be for an officer of the National Government, the Librarian of Congress, to appear before the joint committee to-morrow morning and present this resolution, thereby giving to it the weight of his official position. That it was very evident that several gentlemen present, coming from various parts of the country, were opposed to the measure. In the meanwhile, in order to have this resolution put through, and on the theory that it was all going to be nicely done, Mr. Putnam, the Librarian, who had been acting as chairman, had left the chair so that somebody else could put the motion. Then Mr. Putnam himself spoke, and stated that enough had been said to convince him that it would not be right to pass such a resolution, and he hoped that the gentleman would withdraw the motion, and that it would be his duty the next morning to present the bill to the committee, and that he could do nothing further than to recommend it to their favorable consideration.
We succeeded in defeating the resolution, and the meeting ended in confusion.
FIRST MEETING OF MANUFACTURING INTERESTS.
We quickly corralled those persons who seemed to be our friends (Sousa and Herbert, by the way, were the only composers present), and there were also representatives of various interests-music publishers, typographical union, artists, librarians, sculptors, etc. The interests were greatly diversified. It was proposed that those opposed to the bill, in so far as related to mechanical reproductions of music, go into conference at the Hotel Raleigh. I think there were about eight of us. We conferred that night until midnight and agreed on a general plan of action as to who should represent the different interests. The joint committee assembled next morning and the hearings occupied several days. Much time was occupied on matters of little interest to us. Finally the sections of the bill relating to musical copyright were reached and the fight was on. Without going into details, as the printed report of the hearings can be had, I will say that in the limited time at our disposal we could hardly do more than to state briefly our reasons for objecting to the bill as it now reads. We are able, however, to get a pledge from both® Chairman Currier and Senator Kittredge, the chairmen of the two committees, that the bill would not be considered during that session of Congress, and were assured by them that everybody would have a chance to be heard.
THE ÆOLIAN CONTRACTS.
During the presentation of the matter Mr. O'Connell, a lawyer for one of the pianoplaying concerns, made a very able presentation of the case from his view point and received the closest attention of the committee, and was able to present copies of the Æolian contracts with various publishers which you, gentlemen, know are in existence. The committee adjourned with the understanding that they would convene again in December and all interests would have an opportunity to be heard.
Since that time the only thing of importance that has transpired was the article in Appleton's Magazine by John Philip Sousa, which is a part of a campaign on the part of those interested in passing the measure to create public sentiment in favor of the bill.
I do not think I could have been any briefer and tell the whole story, gentlemen. I have not the slightest doubt that this movement, which started abroad and which has now reached America, is a part of a movement to monopolize the mechanical playing instruments themselves, and the output of music rolls and records.
Those controlling a monopoly of new music as issued would practically control the mechanical instrument industry; and the machines which are covered by patent protection during a limited number of years will be in the hands of schemers who will be able to extend that patent protection for all practicable purposes up to, say, one hundred years if this bill becomes a law and their plans are not checked.
(The following articles were submitted by Mr. Cromelin, and, by direction of the committee, are printed as part of the record:)
An article on the copyright bill in the Musical Age. To Alfred B. Kittredge, of South Dakota, chairman; Moses B. Clapp, Minnesota;
Reed Smoot, Utah; Philander C. Knox, Pennsylvania; Stephen R. Mallory, Florida; Murphy J. Foster, Louisiana; Asbury C. Latimer, South Carolina, Committee on Patents of the Senate. Frank D. Currier, New Hampshire, chairman; Solomon Dresser, Pennsylvania; Joseph M. Dixon, Montana; Edward H. Hinshaw, Nebraska; Robert W. Bonynge, Colorado; William W. Campbell, Ohio; Andrew J. Barchfeld, Pennsylvania; John C. Chaney, Indiana; Charles McGavin, Illinois; William Sulzer, New York; George S. Legare, South Carolina; Edwin Y. Webb, North Carolina; Robert G. Southall, Virginia; John Gill, jr., Maryland, Committee on Patents of the House of Representatives.
GENTLEMEN: On December 7 you are to again take up the consideration of new copyright legislation. The measure which you are to discuss entirely sweeps away the old law and replaces it with new provisions throughout, embodying a radical change in policy. Unquestionably the time has arrived for a revision of the existing copyright laws. Many provisions in the new bill are wise in character and intelligently meet the necessities which a modern age demands. Without entering into a discussion of the bill as a whole, and confining this communication to the issues in which the musical age is directly concerned, we would like to place before your committees in as true a light as possible the position of the Musical Age at the present time.
1. We are unequivocally in favor of the part of the bill which follows the recent English legislation, having for its object the suppression of piracy of printed or sheet music, with the attendant clause which makes it a criminal offense to reprint or sell copyrighted music in sheet form.
2. We are wholly and unalterably opposed to the clause known as paragraph g, which restricts the use of musical compositions upon mechanical playing devices of any description whatsoever.
In explanation of this position which we are bringing so prominently to your notice, we would respectfully submit that in our attitude upon the first question we are swayed by the knowledge gained in the publication of a musical paper, which for twenty-three years has been second to none in fighting for the real business interests of the entire musical industry. We know that the actual financial welfare of the composers of music and the publishers of musical compositions has suffered through the insufficiency of the present copyright laws by which the legitimate publishers have been placed absolutely at the mercy of irresponsible parties, who have stolen the property of the publishers and reprinted their productions at a low price, thus seriously affecting the earnings of the publishers gained through their enterprise, their investments, and their labors. We firmly believe that the only way to suppress this drain upon a great business is to incorporate in the new laws a criminal clause covering offenses of this character.
In our opposition to the mechanical reproduction clause, paragraph (g), of section 1, we wish to bring to your attention these facts:
Neither the publishers of music, the composers, the public, nor a majority of the manufacturers will be benefited one whit by its passage.
Only the Æolian Company, in itself a nucleus for a trust, and a few of its hirelings in the ranks of the publishers and composers will derive benefit from the proposed law.
In substantiation of these statements we would call your attention to the United States Census Bureau report just out, from which it will be seen that the value of the sheet music product increased from $2,272,385 in 1900 to $4,147,783 in 1904, which, based upon calculations made by The Musical. Age, would be an increase of 163 per cent in the period between 1900 and 1906. This increase of 163 per cent in six years has meant a period of unexampled prosperity in the music publishing industry.