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Mr. CURRIER. Would you strike out the word "arrangement”? Mr. Tams. If I were to have the phraseology of that, I would say, “To publicly perform a copyrighted musical dramatic work, or any part thereof, or for purpose of public performance, or the purposes set forth in subsection (b) hereof. I would stop there.

Mr. CHANEY. Make a period of that and strike out all the rest of that?

Mr. Tams. Yes.
The CHAIRMAN. Is that all, Mr. Tams?
Mr. Tams. That is all.

Mr. CROMELIN. May I interject one word? Mr. Tams has brought out very forcibly a new feature that affects our business. Talkingmachine records are limited by time. There is no record made of any kind that does not require special arrangement and special orchestration; and if under this bill we received permission to make the record of the song, still the man who made the arrargement, unless specially permitted, might be sent to jail. I have a telegram, Mr. Chairman, from Mr. Philip Mauro. Mr. Mauro is engaged in court in New York Tuesday and Wednesday on an important case and it will not be possible for him to be here. I beg to ir quire whether you can hear him at some future time?

The CHAIRMAN. The committee thinks Mr. Mauro should be satisfied with permission to file a brief. He may do that by Monday morning Mr. CROMELIN. I thank you.

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Memorandum of objections to the bill by Philip Mauro, of Washington, D. C.

The writer addresses the committee as a patent lawyer, and as a stockholder, director, and the general patent counsel of the American Graphophone Company, the pioneer and leading talking-machine manufacturer of the world.

In the interest of brevity the writer's comments will be directed solely to those provisions of the bill which affect the manufacture, use, and sale of instruments for recording and reproducing speech and other sounds.

The bill doubtless contains many just and unobjectionable provisions looking to the benefit of authors and composers, and, so far from wishing to oppose such portions of the bill, the writer regrets that their enactment is jeopardized by the presence in the bill of a provision so radical, vicious, and repugnant to the genius and trend of the protective legislation of this country, as that known as “paragraph g.”

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NO NATURAL PROPERTY IN IDEAS.

Much of the argument by which it has been sought to support paragraph g is based

g upon a fundamentally wrong assumption, namely, that thoughts or ideas are property. There is no natural property in ideas after publication-i. e., after expression has been given to them. One may, of course, keep his thoughts to himself (and generally it were well for himself and others so to do), but the moment he has communicated them to the public they fall into the common fund, and there is nothing immoral, unethical, or a proper subject of animadversion, in thinking another man's thought, or in communicating it to others for their profit or entertainment. All talk about “dishonesty” and “theft” in this connection, from however high a source, is the merest claptrap, for there exists no property in ideas, musical, literary, or artistic, except as defined by statute. It is entirely a matter of convention or contract; and in framing legislation for the benefit of that worthy class of persons who devote their gifts and energies to the embodiment of intellectual conceptions in some useful, ornamental, or instructive form there are two parties to be considered, namely, the public and the producer; and it is the duty of our legislators to consider first the interest of the former, whom they represent, and whose servants they are.

Not only so, but the Constitution has with great clearness limited the object to which such legislation must be directed. It is not to benefit a special class of workers, however deserving, but to promote the progress of science and the useful arts. That is to

say, the interest of the public is to be considered as paramount; and the underlying theory of the entire patent and cognate legislation of this country is and has been, to shape such laws as will induce and stimulate the greatest quantity and best quality of intellectual output along these definite lines. · As individuals the members of the committee may entertain kindly and liberal sentiments toward authors, composers, etc., but as legislators they can not properly be influenced by such sentiments to the enactment of any legislation which would not be clearly in the interest of the public.

The writer would not care to enter opposition to the real interests of the composers, and it is a source of satisfaction to him to know that, in attacking paragraph g, he is not opposing the interests of these public benefactors, but quite the reverse, although it has been artfully made to appear that paragraph g is in their interest.

MANY INTELLECTUAL CREATIONS UNPROTECTED.

To assist in stripping from the arguments advanced in support of paragraph g, the superficial plausibility with which it is invested þy an insincere appeal to the supposed

rights" of the composer and author, we would point out that, of the enormous contributions added day by day to the common fund of ideas, but a relatively small number can find any monopolistic protection under the law. It is only when the ideas take the form of a literary or musical composition, or of an ornamental design, or of a useful improvement in an art, machine, or composition of matter, that they can be made the subject of protection under the laws. Ideas of treating diseases, of improving live stock, of producing new varieties of plants and flowers, of instructing children, of teaching the deaf and blind, of constructing houses and buildings, of landscape gardening, of conducting business enterprises in their manifold forms, and many other groups of ideas by which the public is benefited, are the fond objects of no protecting laws. Many and numerous classes of public benefactors continue ceaselessly to pour forth their flood of useful ideas, adding to the common stock of knowledge. No one regards it as immoral or unethical to use these ideas, and their authors do not suffer themselves to be paraded by sordid interests before legislative committees, uttering bombastic speeches about their rights,” and representing themselves as the objects of “theft” and "piracy.”

Certainly it can not be contended in behalf of paragraph g that it is in the interest of the public, or that it has the slightest tendency to promote science and the useful arts. Such being the case is improper legislation.

PARAGRAPH G VIOLATES CONSTITUTIONAL AND LEGISLATIVE LIMITATIONS.

As already stated, a patent (or copyright) is in the nature of a contract between the inventor (or author) and the public, whereby, in consideration of the benefits conferred upon the latter, certain exclusive privileges are granted to the former. Now, the Constitution states, the courts have defined, and the legislature has (for the most part) observed the limits of the benefits to be enjoyed by authors and inventors on the one hand, and by the public on the other, with reference to their respective writings and discoveries. Paragraph g proposes to disregard these constitutional and traditional limitations in two ways, first, by invading the rights of the public in respect of copyrighted musical publications, and, second, by invading the domain of the patent law and the rights of the public as defined thereby. In both these respects paragraph g is radical, novel, and highly objectionable.

The only constitutional question raised before the committee in the writer's hearing in regard to paragraph g was whether the term “writings” could be construed to cover a sound record, or a perforated music roll. That, in the writer's mind, is relatively a minor objection, though it may be said that the safe course for the Congress is to adhere to the constitutional term “writings” and to leave matters of construction and interpretation where they belong, namely, to the courts.

1. Rights of composers and the public, respectively.— The Constitution and laws of the land have, with great liberality to the author and composer, provided for exclusive rights to him in his writings, and this provision has, by harmonious legislative action and judicial interpretation, been always held to cover the graphic representation of the composition or that which represents the composition to the eye. The effect of this provision has been that, under a copyrighted composition, the public enjoys all the benefit that can be derived from the literary, musical, or artistic idea, while the author has the benefit of the sale of the copies by which the idea is set forth visually.

This line of division between the benefits to be enjoyed by the author and those to be enjoyed by the public is so clearly defined by the Constitution that it would seem difficult to overlook it. Thus, to apply the provision to the copyright of a musical

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composition it will be apparent that the line drawn by the Constitution gives the benefit of the graphic signs to the composer and the benefit of the audible sounds to the public.

And we may observe in passing that this line is very happily drawn to secure the declared object of the Constitution, for the interests of both public and composer go hand in hand. The more widely the idea is disseminated, the more the public benefits from it, and the greater is the demand created for the printed copy. The advantage to the publisher of having the widest possible diffusion of the melody of a meritorious composition is so obvious and so abundantly demonstrated that it would never be relinquished for anything short of an unfair and illegal monopoly by which the public could be heavily taxed.

Paragraph g proposes to violate this fundamental distinction and to embrace within the provisions of a copyright not only the graphic representation of the composition but the devices, contrivances, and appliances designed to produce the sounds. That such a provision, if enacted into law, would violate the limitation defined above is too clear to require argument.

No one who gives the matter serious reflection will be misled by the specious argument that the above limitation would exclude books printed in raised type for the blind. Such books are graphic representations, and do represent the composition to the eyes of those who have eyes. Principles are not determined, nor should the course of legislation be controlled by reference to abnormalities.

At this point we would like the legislators to ask themselves this question: Will this radical departure in the copyright laws tend to benefit the public and to promote science and the useful arts? It is impossible, we submit, to give any but a negative answer to that question, and by that question the fate of the measure must, under the Constitution, be determined.

2. Invasion of the domain of the patent laws.—The objection to be considered under this head is of a very serious character. The Constitution not only draws a line between the benefits under a copyright to the composer and public, respectively, but it carefully distinguishes between authors and inventors and between writings and discoveries. To promote the development of the useful arts by the protection of novel and useful inventions is the province of the patent laws, and in this department of our jurisprudence there has come into existence a highly developed system and a great body of law and judicial interpretation, to which a very large part of the national energy and intelligence have been devoted. One who has the slightest appreciation of the part played by the patent system in the development of the industries which constitute the nation's boast will contemplate with much concern the proposed invasion of copyright legislation into the domain of the patent law.

One effect of this provision would be to bring and retain within the grasp of monopoly a large class of mechanical devices, representing enormous values, for a period of possibly a hundred years, as against the statutory period of seventeen years, which the experience of a century has shown to be ample.“ Devices of this class would thus become the subjects of radical and unfair discrimination.

This provision, coupled with other provisions of the bill, would introduce great confusion and uncertainty into the administration of the patent law, in that special procedures and remedies (exceedingly drastic and summary) are provided, which would thus become applicable to certain kinds of inventions and not to others.

It is difficult to foresee all the effects of a provision so radical, but we can not suppose that such an extraordinary measure, fraught with such possibilities for mischief, will ever be enacted into law, or that any unprejudiced person would, after fully understanding the matter, wish to embark upon so risky an experiment.

At the very outset of the discussion of this objection we would strongly urge that a provision relating to mechanical devices has no place in a copyright bill, and that it should be considered as an amendment to the patent laws, which in fact it is, since it covers devices performing mechanical functions and devices of that character only.

To indicate the great force of this objection it should suffice to point out that a "device, contrivance, or appliance” in order to be the subject of protection under the laws of the United States must be novel, and must undergo an examination as to novelty before it can receive that limited protection which the law allows. But by the provisions of this bill an important class of mechanical devices (whose development constitutes one of the greatest marvels and triumphs of inventive genius) becomes the subject of practically

perpetual monopoly, without any regard to novelty, without any examination, without any oath of authorship, and without any of those safeguards which the law throws around the grant of patents for inventions. This objection could be greatly elaborated, and doubtless with profit, but limitations of time and space compel us to pass on to another point.

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It is important to call attention here to the fact that the general aim and result of all mechanical inventions is to substitute automatic devices for human agencies, and “the progress of the useful arts" is measured by the extent to which this result is accomplished. Following the operation of this law some very notable results have been achieved during the past twenty years in the field of production of musical and other sounds.

While the copyright law was encouraging composers to bring forth their musical conceptions, the patent law, in its separate sphere, was encouraging the development of means whereby the benefit to the public of those musical conceptions could be greatly augmented and widely diffused among the great mass of the people. We have seen that under a constitutional copyright law the multiplication of copies belongs exclusively to the publisher, while the rendition of the composition, by whatever means, instrumental or vocal, and the enjoyment of the sounds produced, belongs to the public. The composers and the public alike were dependent a few years ago for the rendition of these compositions and for the production of the sounds which was their ultimate object entirely upon the human voice or upon instruments manipulated by human fingers. Hence there was a very narrow limit to the audible rendition of musical compositions, and the average quality thereof was very low, being determined by the skill of the human performer. Thus both the composer and the public suffered for lack of adequate rendition in quantity and quality of the copyrighted

In a few years the genius of the inventor has brought about a marvelous change in these conditions. Let it be said with emphasis and pondered with care that the composers and publishers have not contributed in the slightest degree to this change. They can justly claim no benefit from it; yet the publisher does not scruple to demand radical change of legislation in order to give him the entire monopoly of the benefits resulting from these changed conditions, and has the effrontery to apply vituperative epithets to those who venture to oppose his scheme of greed.

The change above referred to has been brought about by inventing automatic soundproducing devices to take the place of human fingers and vocal organs. No “rights” of the composer or publisher have been invaded or have been affected in the slightest. Their rights remain exactly as they were before. What has happened is simply that, under the operation of the patent laws, new means have been created whereby the benefits to the public of all musical compositions, copyrighted or not, have been enormously increased.

It requires only a fair and accurate statement of the actual situation (and no one can justly impugn the foregoing statement) to make it evident at a glance that it would be an act of gross injustice to take by special legislation any of the benefits of this inventive work from those who accomplished it and bestow the same upon the publishers who had no part in it. Much more so would it be to do, as paragraph g proposes, namely, to place

the absolute control of these benefits in the hands of a publishers' trust, which, if not already in existence, would come into being immediately as the inevitable result of this feature of the proposed law. If it were designed to pass an act for the purpose of arresting so far as possible the beneficent effect of this new line of inventions, to divert the pecuniary results thereof to those who had not the slightest part in bringing them about, to levy a tax on all users of these new instruments, and to limit their use so far as possible to the comparatively rich, who stand least in need of them, it would be difficult to conceive of a measure better calculated to subserve these ends than paragraph g.

The benefit to the public which these new inventions have brought about is incalculable; and if the Congress were disposed to change at all the laws under whose influence they have come into existence, it should be with a view to increasing instead of arresting the spread of those benefits. No one can possibly fail to see where the interest of the public lies in this matter, and if there be need of any pertinent provision in the copyright bill it is one declaring explicitly that sound records and similar mechanical appliances are not “writings” (or works of an author," if that strange, indefinite, and objectionable phrase be retained) within the meaning of the bill.

It is enough to show, in opposition to any claim of fair dealing in this part of the bill, that composers and publishers are not, and can not possibly be, damaged by the invention, sale, and use of automatic sound-producing appliances; but it can be further said that these appliances have been and are greatly benefiting the above classes of citizens, not merely indirectly as members of the general public, but directly in popularizing their compositions and greatly stimulating the demand for copies.

The effects of the invasion by copyright legislation of the domain of the patent laws would be very far-reaching, and of various sorts. Much study and effort have been directed to the object of defining carefully the limitations of the patent statutes, design statutes, and copyright statutes, and considerable headway has been made in that

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direction. It is now proposed by paragraph g to increase to an unprecedented extent the confusion which the lack of clear delimitations has caused in the past, and deliberately to introduce into the sphere of the patent law provisions utterly at variance with the fundamental principles thereof.

We venture to suggest that the committee should hear the views of the Commissioner of Patents on the effect which this remarkable paragraph would have on the administration of the patent law. We find that the honorable Commissioner had made this subject the matter of a special communication to the Librarian of Congress in June, 1905, which letter contains a thorough analysis of the whole subject of intellectual property, dwelling particularly upon the great importance of a careful delimitation of the respective boundaries of copyright, designs, and patents. We call particular attention to this important letter, which, instead of being suppressed, should have been presented prominently to the committee at the outset, seeing that it was written at the request of the Librarian of Congress during the formative stage of the bill.

We understand that the Librarian assured the committee that in the preparation of the bill its authors had the benefit of the views of the Commissioner of Patents (see Rec., p. 5). The committee, however, could hardly be expected to infer from this statement that the bill was framed in direct disregard of the only recommendation upon which the Commissioner laid stress.

We submit that whatever may be the ultimate legislative fate of paragraph g it should certainly find no place in a copyright bill.

THE ELEMENTS OF VALUE IN A SOUND RECORD.

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It will doubtless be helpful to the committee in meeting the clamor raised about the “rights” of composers (though the composers themselves give little countenance thereto) to consider the exact nature of a sound record disk or cylinder. A moment's consideration shows that it is not a graphic representation of the musical notation and that it does not and can not possibly serve as a substitute for a music sheet. It is a machine element pure and simple, having no other possible function or utility than to operate in cooperation with other mechanical elements to produce a purely mechanical result. By itself the sound record is absolutely without function or utility. In the production of sounds it can accomplish nothing without the reproducing stylus, diaphragm, feed mechanism, motor, and other parts which make up a complete graphophone. The resulting sounds are not the production of any one of these devices, but of the cooperative action of all of them.

The function of the machine as a whole is to impart vibratory motions to a small circular plate known as the diaphragm," and the motions of the latter set up sonorous vibrations in the atmosphere. Consideration of these facts should make it clear that paragraph g is dealing with subject-matter quite foreign to the proper domain of a copyright bill.

Attention is now briefly directed to the fact that the elements of value which enter into a sound record differentiate it, not only from the proper constitutional subjects of copyright, but also from other mechanical devices which would be affected by paragraph g, such as the perforated music roll.

1. The music roll is a sheet or strip of paper on which the musical characters are represented by perforations whose length and relative position correspond respectively with the duration and staff position of the corresponding musical note. There is, therefore, a certain resemblance observable to the eye between the music roll and the music sheet of the corresponding composition, the former being followed in making the latter.

On the contrary, the groove of a sound record is the result of the cutting action of a stylus point operating under the influence of atmospheric vibrations. The staff notation is not copied or followed in any sense and there is not the slightest resemblance in the sound groove to the characters on the music sheet.

2. The music roll is made by an operation and by machines analogous to printing machines. The making of a sound record presents no such analogy, but, on the contrary, involves processes and machinery as different as possible from those used in printing sheet music.

3. The excellency of the music roll and the manner in which it answers its intended purpose is merely a matter of mechanical care and accuracy in its production. Its quality is not due in any degree to the artistic ability of the maker.

On the other hand, the sound record is the result of the physical action of atmospheric vibrations upon a prepared wax surface, the vibrations being permitted to direct the motions of a stylus point. The ultimate motive force in this operation is the human voice or an instrument or band so that the effect of the bill would be to interfere with personal liberty in the use of the voice or of musical instruments.

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