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which are really still in their infancy, when he finds, as a matter of fact, that after he has invented the device he will have to go with his hat in his hand to some monopoly to get leave to use the current compositions.

In that way, sir, as I submit to you, it will mean a great damper on inventive genius.

Another point which has been taken up by both Mr. Pound and Mr. Walker is this: Take the manufacturers that I represent; they have proceeded in accordance with law. They have been perfecting, for many years, piano-playing devices. They have been going ahead and spending a great deal of money in establishing factories, getting tools, machinery and everything else, and getting proper business system established. What is going to happen? They have been going ahead, not taking anything that they did not believe themselves entitled to. What is the result? If this bill is passed, the result will be that all that is lost, or practically lost.

Now, getting down to a still broader question-it is this:

This country is conceded everywhere on the globe to have made greater strides in invention than all the other countries taken together. This country is the home of mechanical devices for reproducing sounds. It is the home of the graphophone, of the gramaphone, and the home of the piano-playing machine. Why, therefore, should we take the lead in restricting the use of those devices when the other countries, England, France, Germany, Switzerland, and Belgium, have specifically refused to take the lead in that direction, but each one of them has come out flat-footed and said: “We will not attack these lines of business; they are employing labor; they are supporting thousands upon thousands." Why should we do it? Now take England

Mr. BONYNGE. Is there any country that copyrights these things now?

Mr. O'CONNELL. The only one that I have been able to find is the decision on a phonographic or graphophone record in Italy. That was

Mr. CROMELIN. It is on appeal now.

Mr. O'CONNELL. It is on appeal, so it is not a final decision. That suit was brought by the biggest musical publishing house on earththe Ricardis, of Milan. They wanted to clinch their monopoly on the music-publishing business, and they owned the rights of publishing practically all of the European classics. As Mr. Cromelin has told you, Mr. Ricardi has been in this country very recently, and he has told him that just as soon as they get this act passed they will put the screws to all of us, and I have not the slightest doubt but what they would if you ever passed that act, which I hope you do not.

Now, see what England has done--and by the way, that subject is very interesting. This bill, entitled “The Sixth of Edward the Seventh, chapter 36," "An act to amend the law relating to musical copyrights, became a law the 4th of August, 1906. The gentleman who introduced that bill in the Ilouse of Commons, and who was mainly instrumental in forcing it through to passage, was Mr. T. P. O'Connor, a very famous countryman of mine. He came to this country a couple of months ago

All the newspapers in New York printed column after column of the wonderful things that he had done for the composers and the music publishers. The music publishers and the composers,

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they say, some of them (I did not notice Mr. Sousa's name amongst them) went out of their way to throw bouquets at him, to use a common expression. He was wined and dined; a great banquet was given bim by the Music Publishers' Association, at which one of the shining lights was our friend, Mr. Burkan, according to the reports in the daily papers. They were perfectly pleased-delighted-with what Mr. T. P. O'Connor had done for them. Now let us see what he did for them.

The very last clause of the bill—oh, I might say that Victor Herbert was also at that dinner, according to the press reports. Am I right, Mr. Burkan?

Mr. BURKAN. He was there, yes.
Mr. CROMELIN. The treasurer of the Æolian Company
Mr. BURKAN. We were all there.
Mr. O'CONNELL. They were all there, Mr. Burkan says.
Mr. CROMELIN. And the treasurer of the Æolian Company.

Mr. O'CONNELL. And the treasurer of the Æolian Company, Mr.

This bill goes on to provide penalties for pirating musical compositions, and then says:

Provided, That the expressions "pirated copies and plates” shall not, for the purposes of this act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records, respectively, are made.

Now, gentlemen, judging from precedents that have been established by this wonderful association of music publishers, if you pass a bill or report a bill with that identical provision, specifically stating that music rolls and means for reproducing sounds are not infringements of copyrights on the music, I say, if you pass a bill of that kind-I have not the slightest doubt but what the music publishers and Mr. Burkan will stand as nobly by you as they did by T. P. O'Connor. (Laughter.]

Mr. FURNISS. Mr. O'Connor has not finished yet; he has more work to do, sir.

The CHAIRMAN. Do you favor the provision suggested by Mr. Pound?

Mr. O'CONNELL. I was not able to take down in full the provision that Mr. Pound suggested.

Mr. CURRIER. It was practically what you have just read.

Mr. O'CONNELL. Why, unquestionably we could not object to that, and we would not.

Mr. CURRIER. That proviso?
Mr. WALKER. I do not think you understand the royalty provided.

Mr. CURRIER. The royalty provided a provision by which the owner of the copyright migbt exclude anyone from reproducing the music by mechanical means; but if he opened it to anyone he should open it to all on the payment of a royalty of 2 cents.

Mr. CURRIER. That was Mr. Pound's suggestion.

Mr. O'CONNELL. As I stated to the chairman of the House committee, when I had the pleasure of meeting him on my arrival in Washington last week, the houses that I represent have considered this question from every possible standpoint. Their object is solely to be protected in their legitimate business interests. They are engaged in

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a legitimate business. They so feel. They will fight for that position. All they want is that they be kept in that position. They do not want to be turned over to the tender mercies of pirates. I use the word advisedly. My clients are not the pirates. They do not want to get control of any ship and scuttle it for their own good. They want to be protected in their own business interests. A fair field and no favor is what they want and what they ask, and what they have been insisting and telling me that you gentlemen will give them, and nothing else.

Mr. CURRIER. A fair field is given to them by Mr. Pound's amendment, is it not?

Mr. O'CONNELL. Yes, sir. Now, I want to make this as emphatic as I can, sir. As I told you in June here, if you decide that you have the constitutional power to pass this bill; if you decide that you want to take the lead in making laws for England and for France and for Germany and for Switzerland and for Belgium, then my clients are willing to pay a royalty, but under protest. It must be a small royalty, and the field must be open to every body. We do not want to be ground between the upper and the nether millstones of the contract of the Æolian Company with the publishers on one hand and the contracts of the Æolian Company with the manufacturers on the other hand. That is their position, sir; and I am authorized to make that statement to you here. But I wish to impress upon you again the fact that I do not think you ought to pass legislation of this kind where the countries in which the question has been brought up have, one after another, declined to pass any such legislation.

Take Germany, for instance, they try here to have you reverse the order of things in Germany. In Germany a court held' that these devices for reproducing sounds were an infringement, and within a year the legislative body of the German Empire passed a bill saying: ** They are not infringements. We will protect the industries we have here.” They want you, on the other hand, to assume this position: Our courts say it is not an infringement, and now they want you to say it is an infringement. The Swiss, at the Berne convention, absolutely refused to permit music-box disks to be called an infringement of the musical notation sheet. The French-you have heard described to you what a peculiar law they have on the subject, and you have seen how it works out.

The CHAIRMAN. What do you mean by “the musical notation sheet?"

Mr. O'CONNELL. The ordinary sheet of music. I say a music-box disk is not an infringement of a sheet of music, and that is what they have held.

If we are to follow the law anywhere, we ought to follow the law of England, the fountain head of all our law. They speak the same language; they have the same ideas-on some things. This question over there has not been passed by a snap judgment. You have heard many of the proponents of this bill tell you it took them eight years to decide on it. “After the eight years, what happens? They give good remedies and proper remedies to the publishers of music for pirating, but they say specifically: “We will not interfere with the rights of those people who have money invested in the legitimate business of reproducing music by means of mechanical appliances.” And here, in the home of those mechanical appliances, the country which made every single one of them possible, without the inventions of wbose men they would be impossible to any country under the sun, they now seek to tell you that you must recede from that position, and you, the fountain head, must say: “Every country lets these things in free, but we here, the home of them, have different ideas simply because this wonderful association of music publishers asks it. Look down the list. Did you ever hear of any of them before, gentlemen, as having a place even in the business of the country? Is there a single one of them that any one of you could recall by name or ever heard of before? Are they men of standing and place and position in the community-these music publishers? Did you ever hear of them? They put forward John Philip Sousa, who is known to everybody and loved by everybody, to take their chestnuts out of the fire. (Laughter.]

You may laugh, gentlemen of the opposition, but I am sure the committee does not laugh at it, and I am not speaking of these things as a laughing matter, but because I am here commissioned to speak for the business men I represent, and because I am speaking what I feel.

Mr. LEGARE. Mr. O'Connell, not exactly along the line of your argument, but for the purpose of information, what about the renewal of copyright? Is it possible, by making certain changes in one of these compositions, to get a renewal of copyright?

Mr. O'CONNELL. Under this proposed act, sir, you can do almost anything--you can change three notes in a piece and get a new copyright on it. Mr. FURNISS. The present act is the same.

Mr. LEGARE. We have here in paragraph (g) a provision that only such products as shall be copyrighted after this act shall have gone into effect shall be covered. Would it not be possible to take all of the compositions that are now being used by your companies and have them changed slightly and copyrighted after this act went into effect, and take them away from you in that way!

Mr. O'CONNELL. I will answer this question in this way, sir: You will find that this is a most extraordinary act, or proposed act, when you read it all the way through. It starts out fair and square, and they do state specifically in the section you have quoted that it refers to compositions composed after this act goes into effect. However, you take section 6, as I pointed out to Mr. Currier earlier in the evening, and you will tind that it says:

Additions to copyrighted works, arrangements, or other versions of work, whether copyrighted or in the public domain, shall be regarded as new works subject to copyright under the provisions of this act.

Mr. LEGARE. That is exactly what I want to know.

Mr. CURRIER. Mr. O'Connell, let me ask you what you say to the words in line 20 ?

Mr. O'CONNELL. Of which page, sir?

Mr. CURRIER. Right there in section 6—"or be construed to grant an exclusive right to the use of such original works.” Mr. O'CONNELL. “But no such copyright shall affect the force or

· validity of any subsisting copyright upon the matter employed, or any part thereof, or be construed to grant an exclusive right to such use of the original works." That may be

Mr. CURRIER. That leaves the original works open to anybody else who wants to use them.

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Mr. O'CONNELL. That may be all very true, sir; but then you will have a multiplication of copyright on a piece which perhaps is now in the public domain. They may make a little change here and a little , change there and a change in the next place, and the result is

Mr. CURRIER. All that is copyrighted, then, is the change.
Mr. O'CONNELL. I know, but pardon me, sir. They put out this

I new arrangement of old work with the copyright notice, and under this act that copyright notice would be a perfectly legitimate one, and the result is that it scares away people who have a legitimate right to use it; because you know yourself, sir, what an effect it has on the public generally to have the words "copyrighted" or "patented” on

. anything. The mere claim of patent' or copyright itself is sufficient to deter anybody else from using it.

Mr. LEGARE. It has been argued here, Mr. O'Connell, that this act will not touch these masterpieces, such as “0 Promise Me” and “Stars and Stripes," and products of that kind; but you say that they can be slightly changed and renewed and then they will come under this act?

Mr. O'CONNELL. Do I understand you to mean, sir, that that work, “O Promise Me,” which is subject to a present copyright

Mr. LEGARE. Copyrighted in 1889, I believe.

Mr. O'CONNELL. That they can not get a copyright on a music roll cut from it now? Is that what you mean?

Mr. LEGARE. No; but is it not possible under this act--
Mr. CURRIER. At the expiration of the term.
Mr. LEGARE. At the expiration of the term, that they can renew it?
Mr. O'CONNELL. Why, the act specifically provides for it.

Mr. LEGARE. That is what I say. In other words, that act does affect you so far as you are concerned?

Mr. LEGARE. It does affect everything in existence to-day?

Mr. O'CONNELL. Yes; this act provides that all existing copyrights at their expiration may be extended to the duration allowed for copyrights by this act.

For instance, assuming that “O Promise Me” is an original composition [laughter], at the expiration of the twenty-eight years they could take out an extension under this act, which would extend it to the life of Mr. De Koven and fifty years beyond.

Mr. LEGARE. And then you would be compelled to pay a royalty under section (g)?

Mr. O'CONNELL. Yes, sir; if the act goes into effect to-day, and they cut a music roll from that to-morrow, nobody else can cut it.

Mr. LEGARE. Certainly.

Mr. O'CONNELL. In other words, it extends the life of the old copyright; and for all copyrights existing it enlarges them so as to include these mechanical reproductions. And I suggest in that particular that if you do pass any kind of a musical copyright act it should provide specifically that it should only cover compositions composed, published, and copyrighted after this act goes into effect, and it should only include reproductions taken from such musical works.

In that connection I want to call the attention of the committee to something which may be of interest, and that is this: That Mr. Serven, representing the Music Publishers' Association last June

The CHAIRMAN. Mr. O'Connell, not excluding the interruptions, you have occupied fifty minutes.

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