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[Postal Telegraph Commercial Cables Telegram.]
NEW YORK, December 10, 1906. LIBRARIAN OF CONGRESS, Washington. D. C.:
Should new music supply be at all limited, the business of manufacturers and dealers in mechanical musical rolls, cylinders, disks, etc., in which millions are invested, would be ruined. The public demand constant supply of new, up-to-date selections.
LEEDS & CATTLIN Co.
TREASURY DEPARTMENT, OFFICE OF THE SECRETARY,
Washington, December 14, 1906. Mr. HERBERT PUTNAM, Librarian of Congress.
DEAR MR. PUTNAM: I inclose a copy of a letter addressed to the chairman of the Senate and House Committees on Patents with a proposed amendment to the copyright bill. This is done in accordance with a request of the joint committee.
It will be noticed that in my letter I have referred to section 22 of the bill. I regret that I did not discover this apparent defect at an earlier date, and my excuse is that I was particularly interested in sections 16, 17, and 26 to 31, inclusive, of the bill. Moreover, I was under the impression that Mr. Stewart of the Bar Association and Mr. Hughes of the Department of Justice, the latter being responsible for the insertion of the postal statutes, were looking after that particular provision.
I am very desirous of having the sections relating to our branch of the work made perfectly clear, and for that reason I bring the matter up at this late date.
I wish to again thank you for your courtesy and kind consideration during the various conferences. Very truly,
CHAS. P. MONTGOMERY.
TREASURY DEPARTMENT, OFFICE OF THE SECRETARY,
Washington, December 14, 1906. Mr. HERBERT PUTNAM, Librarian of Congress.
Sir: As requested by the joint committee, I have the honor to inclose herewith the proposed amendment to Senate bill 6330 (H. R. 19853).
As stated to the committee, the necessity exists for this amendment by reason of the fact that customs officers and postmasters are unable to examine the large number of catalogues of title entries to determine whether a given importation is prohibited, without causing delay in the delivery of importations, complaint, and probable injustice.
The clause “or injured parties” is used advisedly, as I understand copyright proprietors not infrequently assign their rights to reproduce by methods other than that used in the production of the copyrighted article, with the understanding that the original copyright notice is to be placed upon all such reproductions. The injured party in such a case would not be the copyright proprietor but his assignee.
It is believed that if this proposed amendment is adopted, it will enable the Treasury and Post-Office Departments to make such regulations as will be decidedly beneficial to copyright proprietors.
Mr. Currier asked me whether it would not be beneficial if the statutory notice of copyright were imprinted on foreign manufactured articles. I replied that it would, but the fact must not be lost sight of that a person who designs to evade the copyright law will not imprint such notices upon the articles which he may send into this country. Naturally, the efforts of such a person would be to eliminate any and everything which might tend to bring to the notice of customs officers that the article was prohibited.
With regard to section 22, permit me to suggest that the provisions therein applying sections 3893 and 3895 of the Revised Statutes appear to be vague and indefinite, and I can not perceive their proper application in this connection. Moreover, section 3893 was amended July 12, 1876, and September 26, 1888. If it was intended by the insertion of these two statutes to prohibit the use of the domestic mails for the transmission of fraudulent copyright reproductions, then it seems to me that it would be proper to place in the bill a separate section embodying that idea. If this were done, section 22 would read: “That any reproduction, without the consent of the author or copyright proprietor of any work or any material part of any work in
which copyright is subsisting shall be illegal and is hereby prohibited; and the importation into the United States of any such fraudulent copies or reproductions is hereby prohibited. The language of the section would then be clear.
There appears to be no need for a provision prohibiting the exchange in the mails between the United States and foreign countries of fraudulent copies or reproductions of copyrighted articles, for the reason that the various postal conventions prohibit the exchange of such articles, and, moreover, section 29 of the bill under consideration authorizes the detention and seizure, if necessary, of such articles.
Attention is invited to section 64, which makes section 4966 of the Revised Statutes a part of the act. Section 4966 was amended January 6, 1897. (29 Stat. L., 481.) Respectfully,
Chas. P. MONTGOMERY.
TREASURY DEPARTMENT, OFFICE OF THE SECRETARY,
Sec. 292. The Secretary of the Treasury and the Postmaster-General are hereby empowered to make necessary and proper rules and regulations requiring notice to be given to the Treasury Department or Post-Office Department, as the case may be, by copyright proprietors or injured parties of the actual or contemplated importation of articles prohibited importation by this act and which infringe the rights of such copyright proprietors or injured parties.
Philadelphia, December 8, 1906. Hon. THORVALD SOLBERG,
Register of Copyrights, Washington, D. C. MY DEAR SIR: I see by the paper that the proposed amendments to the copyright bill are again being argued upon. I had no idea that another hearing was to take place so soon, but I trust there may yet be time to place the following paragraphs before the Committees on Patents, as I feel most strongly the injustice of our present laws, although I regret troubling you in the matter at this late date. If these few sentences can be presented without eliminations I will appreciate it, as I have condensed as much as seemed possible.
Section 1 (f). The right to publicly perform ordinary musical compositions, waltzes, songs, marches, etc., should not be restricted; but in the case of musical-dramatic or large religious or concert works (consisting, say, of more than two numbers) the holders of copyright should have full protection against public performances without their permission.
Section 1 (g): By what right the opponents of this measure seek to allow the manufacture and sale of copyrighted musical compositions, in whatever form, by any persons other than the holders of such copyright, it is difficult for any fairminded person to conceive. Is it not the intent of the law that an inventor shall be protected as fully as possible against the theft of his invention whether it be a machine, a medical formula, or a piece of music? That the fact of a musical composition being published and offered for sale in the usual printed form should give to anyone the right to make and sell numberless copies of that composition simply because such copies differ in form or mechanical construction is absurd. According to this theory any person should have the right of duplicating the full name and ingredients of any patent medicine on the market and selling it broadcast throughout the land if he but used a different style of bottle from that of the owners of the patent. Therefore I most earnestly urge the passage of such laws or the adoption of such amendments as will effectually correct this wrong. With thanks for your kind attention, I am, respectfully, yours,
S. HAROLD SARGENT.
UNDERWOOD & UNDERWOOD, STEREOSCOPIC PHOTOGRAPHS,
3-5 West Nineteenth Street, New York, December 15, 1906. Subject: In re hearings on proposed copyright legislation. From press reports and advice of a delegate present at the closing public hearings, we understand representations are expected to be presented on Monday asking provisions in the pending bill which, if as reported, would seriously affect existing interests of proprietors and makers of photographs.
We are advised of certain points these representations are expected to cover. We appreciate the forecast may not be accurate, but beg to submit and ask consideration of facts bearing on such points as apparently our only practicable method of defense against what, if successfully made as suggested, would be a most serious and vital attack on our existing, and we certainly feel our future, legitimate interests.
Such points and our reasons for deeming them unjustified are:
1. That injustice is done by giving the “mechanical maker of a kodak snapshot” the same protection that is given to the author of a literary, artistic, or musical composition.
We deem the expression "mechanical maker of a kodak snapshot” unfair to the photographic interests now in much the largest degree taking advantage of copyright protection. We know of no way to furnish accurate statistics, but comparing the number of photographic entries made by ourselves and by similar concerns with the total number of photographs entered, we are confident the number entered by “amateurs” is exceedingly emall compared with the entries by “professional” photographers. (We use the words “amateur” and “professional as used in Treasury Decisions affecting importations of exposed "films,” “ dry plates," etc.)
“ Effective professional photography, as nowadays actually practiced, requires the same extended training, experience, judgment, and individuality required in any other method of properly interpreting and recording conditions, events, scenes, etc., the same exposure to danger and hardship as required in the war correspondent, the explorer, or the scientific investigator, and the same discretion in selection of materia). The educational value of the results of such photographers' efforts is universally recognized and attested. The expense of securing such results is as great as in any manner of gathering together facts and records.
It seems no injustice to require anyone wishing to use such results for profit to pay, as they now do, a legitimate price for their use.
2. That injustice done by treating the reproduction in a newspaper of a copyrighted photograph as causing every copy of the offending issue to become subject to a penalty of $1 for every such copy and to other punishment. The appropriation of another's
property, of whatsoever nature, willfully and for profit, should certainly not plead justification. We feel making appropriation of property in a copyright (when in circumstances and motive it is a theft) a misdemeanor, no greater hardship than making the theft of the photograph itself such crime.
As to amount of damages-the discretion allowed the court in section 23 b of the published draft seems to us an ample guaranty against injustice. Whether such discretion should be greater or less would appear to us not to affect the principle. It does seem to us, however, the penalty to which the private party attempting to appropriate public property by false notice, as in section 25, is subjected (an eminently just and reasonable penalty) should be in no event greater than the provision for the protection of the legitimate property of the private individual against infringement.
3. That injustice is done * “by failing to recognize that newspaper reprints of photographs are not such reproductions as can be substituted in sales for the originals, and that instead of inflicting injury by reducing sales they often tend to advertise and to increase the sales of the original photographs.”
It seems to us but reasonable that the owner of a photographic negative should be permitted to reproduce therefrom in any such form as he may deem expedient, and his property therein be protected in one form as well as in another, even though it be in exactly such form as it would appear in a magazine or newspaper.
No hardship now falls on periodical or other publishers wishing to use a copyrighted photograph except payment for its use. This is now a source of profit to makers of photographs, and it certainly appears as legitimate to expect payment for production of the photograph reproduced as for the written article or report reproduced.
An important proportion of photographs copyrighted are used for no other purpose than reproduction in magazines or newspapers and are published in no other
form. From our own records we get results as below. Copyright entry in each case was made expressly for use in the class designated. A few in each class will eventually be used in the other, but the percentage small and final result is very closely indicated in the statement.
The photographs entered by us for copyright during the past five months and the purpose of such entry are:
As to the value of the “advertisement,” our own experience, and considering what would logically be the policy of all conservatively-managed publications is that no form of credit or acknowledgement which would in any way be an advertisement can be secured except when the owner of the photograph is in position to secure it as a consideration. This is logical and reasonable, and is our experience. Very respectfully submitted,
UNDERWOOD & UNDERWOOD. To the Joint COMMITTEE ON PATENTS OF THE SENATE AND HOUSE OF REPRESENTATIVES,
Washington, D. C. • (In care of Librarian of Congress.)
The LIBRARIAN. Mr. Livingstone desires to submit for the record a memorandum which reemphasizes certain points he has touched upon, but stated they would like to treat them in a written memorandum.
The CHAIRMAN. That may go into the record. (See page 110.)
The LIBRARIAN. Mr. Tindale submits this as a written statement covering some remarks he made at the hearing. He is not here. I do not know what part of the record it refers to; he simply left it with me. He may not have given it to the stenographer at the time.
Mr. CHANEY. In respect to matters of that sort, since these people have not had an opportunity to be heard, would it not be well to allow them to submit what they have to say in writing and let it go into the record ?
The LIBRARIAN. I assumed that I should perhaps have had a telegram from them by this morning indicating any such request, but no doubt if we receive such communications they may go into the record.
Senator CLAPP. Would it not be well to authorize them to be incorporated into the record ?
The CHAIRMAN. Yes, that is understood. Are there others to be heard from?
Mr. CROMELIN. I submit if this bill is passed it would have a very damaging effect upon the mechanical-instrument manufacturers; even the tying up of a small proportion of music, new or old, would have a bad effect.
I understand the Telelectric Company are about to put upon the market a new form of electric piano player by which the personal interpretation of the performer can be obtained. If the Æolian con
tracts are enforced this company will practically be put out of business. And I think it so important that it should be brought to the attention of the committee and have it spread upon the record.
I have an important telegram from the Telelectric Company, of Pittsfield, Mass., which reached me to-day and possibly should go in the record:
DECEMBER 10, 1906. Paul H. CROMELIN,
Care Librarian of Congress, Washington, D. C.: The tying up of even a small proportion of music, new or old, would have a very damaging effect on the industry. Customers will insist on freedom to select at will and will go where they can get it. Conditions are not the same as with sheet music. That is universally available, and one publisher does not refuse to sell copyright music to a customer who purchases other music elsewhere, even though the trust should agree to sell music rolls. This company would not be benefited, as it can only use its own cuttings.
THE TELELECTRIC Co. THE CHAIRMAN. Have you any suggestion you desire to make, Mr. Putnam?
The LIBRARIAN. I am not advised of any further requests for hearing. I will, then, with your permission, say a few words bringing the history of the bill to date.
At the hearing in June I brought its history in a summary way, to the date of its introduction, May 31. The date of its introduction was the date of its first publication. Prior to that time it had not. been put before the public as a bill. Specific requests for it were not answered from the copyright office with any draft we had in hand, so that until May 31 the bill was not before the public. If some of the earlier drafts under consideration were seen by any persons not members of the conference, it was not through any action of the copyright office, because the copyright office had pledged the participants, as of course, not to put the bill out before the public while changes were still being considered in conference. (Strictly speaking, therefore), the bill introduced on May 31 was not in existence on May 23.
It was not, then, until the date of the introduction of the bill that it can be said to have been published. I speak of this in order to emphasize the fact that the criticisms which will be useful to the committee will be those submitted after publication of the bill by its introduction.
The notices of the hearings of June 6 to 9 were sent to all persons (86) who had attended the copyright conferences; to a list of persons handed to us by the chairman of the House Committee on Patents representing requests for notice received by him (there were 17 of these), and to a list, in addition, of librarians-a special listalso from him. There were 20 of these. The circular was sent to some 50 to 75 other individuals also who, it was thought, might be interested in the hearings, if we might judge from communications that had reached us. The circulars which annourced the present hearings were sent out to those addressed in June and to some others-about 40—in addition; also to the secretaries of the several “copyright leagues.” Moreover, circular notices were sent out with copies of the bill wherever requested, up to 300 in all.
On November 22 we sent to the Associated Press a request to publish rotices of the present hearing.