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Mr. CUTTER. I, of course, am glad to have your statement that it does not so intend.

Mr. CURRIER. If you think section B does so, why do you not formulate an amendment covering that point?

Mr. CUTTER. I have formulated an amendment.

Mr. CURRIER. The committee will be very glad to have your suggestions on that matter.

Senator Smoot. Are your objections to section 30 the same that Doctor Steiner's were?

Mr. CUTTER. Yes; but my particular objection to it is that that is the only loophole that we have left to hold this trust—the importation. That is the only way in which we can control the prices of books for public libraries in this country,

Senator SMOOT. Well, you can control them now; you can import one copy instead of two, and you can do it as many times as you want to, under the proposed bill. Is not that true?

Mr. CUTTER. No; not American copyrighted books by an American author. That is especially prohibited.

Mr. CHANEY. You say you have an amendment which would relieve the proposed law of that feature?

Senator SMOOT. You would be satisfied with one book?

Mr. CUTTER. Yes; I am a librarian in a small country town, and one copy is usually enough.

Senator Smoot. Did you not state, at the last hearing, that you thought any library in this country would be satisfied with one?

Mr. CUTTER. That was my opinion then, but of course I only then expressed the opinions of a few librarians. I see now that some of the other gentlemen prefer and would like to have more than one copy.

Senator SMOOT. Have you ever imported a book?

Mr. CUTTER. I have imported more books than any other librarian in the United States, I think, for the Library of Congress. That is, I was purchasing agent here.

The LIBRARIAN. He was at the head of our purchasing department here, Senator.

Senator Smoot. Oh, yes; but I mean now?

Mr. CUTTER. Yes, sir; more than about half of the books we buy we import for my library.

Mr. CURRIER. Books protected by American copyright?

Mr. CUTTER. No; I do not say that. I do not know how many of them are protected by American copyright. I only buy those when I can buy them cheaper abroad. If I can get the edition at the same price here, it would be very foolish for me to wait six weeks for it to be received.

My suggestion to remedy that is to strike out from section 1 the words " for the purposes set forth in subsection B hereof,” and to strike out entirely subsection B.

Mr. CHANEY. That is all of line 5?
Mr. CUTTER. I do not happen to have the Senate print, sir.

The LIBRARIAN. That was the suggestion, Mr. Cutter, as to which we thought there was an interpretation not at all intended, an application not at all intended, by the framers of the bill.

Mr. CUTTER. Yes. Of course, when I wrote this argument I was not familiar with that fact.

The LIBRARIAN. You understood, Mr. Cutter, did you not, that that section would, as necessarily interpreted, prevent a circulating, a lending library?

Mr. CUTTER. Certainly:

The LIBRARIAN. That it would abolish those, and would prevent the purchaser of a particular book from reselling it or lending it out in any way?

Mr. CUTTER. And it would prevent the secondhand book dealer from doing business.

The LIBRARIAN. That was not the intention of the framers—that the phraseology should have that effect.

The CHAIRMAN. Is that all, Mr. Cutter?
Mr. CUTTER. That is all.
(The committee thereupon took a recess until 2 o'clock p. m.)


The LIBRARIAN. Mr. Bowker and Mr. Johnson are here, as I understand, to represent the Authors' Copyright League. Mr. Bowker, were you to speak first!



Mr. BOWKER. My colleague, Mr. Robert Underwood Johnson, wishes to be heard, I think, for the American Copyright League, and I appear before you as vice-president, in the absence of our president, Mr. Edmund Clarence Stedman, who can not be here because of ill health.

The American Copyright League is the body which since 1883 has in an organized way stood for the rights of authors, and of all authors.

The Constitution empowers Congress to secure " to authors and inventors the exclusive right to their respective writings and discoveries for limited times." For the defense of that principle the American Copyright League exists, and the American Copyright League asks of Congress only that that right, as expressed in the Constitution, should be fulfilled through legislation in the amplest, simplest, and clearest way.

The discussions in these conferences and hearings have, of course, developed differences of detail. That must be. The measure now before you does not represent absolute agreement, but it does represent, as we believe, a just and comprehensive scheme for the protection of the rights of authors. The American Copyright League stands for authors of all kinds, literary, dramatic, musical, and artistic. It emphasizes the protection of the right of the music composer and author as it does the rights of all other authors. If, because of the complexity of this bill or because of opposition to it, its passage should be delayed, the Copyright League is prepared, with the music composers, to ask the consideration of Congress for a specific bill which shall protect the music composer in his property rights. I mention that simply to emphasize to you that the league has an equal thought for composers of all classes.

The league has stood for many years for a revision of the copyright law, and I wish, on its behalf, to express the satisfaction which it has felt in the bringing before you of the measure which, as far as possible, represents the agreement of those interests most concerned in copyrights, first, of all the authors, and, afterwards, the interests of those auxiliary to the authors, and, finally, of the public. Every endeavor was made by the Librarian of Congress, as I can personally testify, at the beginning of the hearings to get together representatives of every interest entitled to express some opinion on copyrights, and if there was any failure in that regard it was because at that time it was impossible to find representatives of organizations representing this class or that. Since then two organizations have been formed, which have, as we think, put themselves somewhat in opposition to the principles we advocate. We stand for the fullest rights of the author, and we ask no more of Congress than that it shall, as far as in its power lies, protect those rights.

I shall speak for a moment of the objections brought against the scope of the bill by Judge Walker and by Mr. Porterfield, who has already expressed himself in print, and who is to make an argument to-morrow.

Judge Walker, who, besides his general interest as a member of the public, appeared in the auto-music case as counsel for the AutoMusic Company, has taken the ground that certain things can not be protected because they are not writings, which word the Constitution uses. In Massachusetts it was originally thought that a voter must cast a hand-written ballot in order to fulfill the requirement of the Massachusetts constitution for a written ballot. But it was ruled otherwise in the courts, and Congress has rightly seen fit to give the widest interpretation to the word "writings.” In fact, Congress has included sculptures, which only by the most liberal interpretation can be therein included, as “ visible expression.” It is easily seen that the effects of the decisions have been to widen rather than to restrict the copyright field, and the Supreme Court has stated that it was the intellectual products of the author, and not any particular form, which the Constitution intended to protect.

Take the case of the phonographic record, the character of which as writing has been questioned. It is a curious fact that the earliest known writing, the Assyrian hieroglyphic, was made by an instrumentality very similar to the phonographic needle of to-day impressing itself upon plastic material.

As a curious incident it may be worth while to relate that for the Edison dinner in New York not long ago I was asked to prepare something for the menu, and it occurred to me to prepare it without writing. I put the result of my mental effort, first, upon the phonographic record, and that was afterwards from that record put in type by the compositor, and I heard the proof read through the telephone. There existed for a time no copy except the copy on the phonographic disk. That seems to be a fair proof of the fact that that sort of a record is a writing.

That is now developing very considerable importance because of the invention recently made of the telharmonic dynaphone of Doctor Cahill, through which musical works can be reproduced by telephone, and I wish to submit that it is not fair to the musical author to have his work given to the public in that way or in any other way unless


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there is fair payment to him for the exclusive right which the Constitution enables Congress to guarantee to him.

I shall not, however, go into details as regards music here, because I understand that that subject will be specifically discussed another day. But I do wish to remind the committees that after all the word “writing” is, as has been pointed out by the courts, an indication not of the method of copying, but only a characterization of the original work. The musical composer is even more than a literary composer or writer. He must make his own manuscript, because he can not even use a phonograph or a stenographer to record his thoughts. His thoughts are peculiarly recorded, his manuscript is his own handiwork, and the Constitution, in authorizing exclusive rights to the author, particularly justifies, therefore, that any particular form of writing by which publication can be effected entitles the author to the benefit of some return.

It has always been a favorite device of those who desired to obtain some benefit from an author's productions to claim that it is not fair to the public that he should have property rights in the ordinary way, and there was an effort, particularly in 1891, to havo Congress pass upon what is known as the “royalty scheme”-that is to say, that in the so-called interest of the public, the author should be compelled to part with his exclusive property rights upon the basis of a royalty, say of 10 per cent. That is not an absolute confiscation, but is an absolute restriction of property rights, and that was the proposition. But the right of the musical composer, as we contend, rests on the language of the Constitution that exclusive rights are to be given to the author, and we contend that that right must be protected against any form of copying or reproduction or publication.

A similar plea has been made by the dissenting librarians, that in the interest of the public the rights of authors as to their market should be restricted. The first right which any producer has is to sell his property, to sell it as he pleases, and to whom he pleases. Strictly, there should be no such exception as was made part of the bill of 1891, quite at the last moment, and rather incidentally.

In the course of the discussions between the publishers and the librarians there was some acrimony developed as to prices, but it came about that the copyright league endeavored to do its part in bringing about a fair arrangement, and the compromise which has been brought before you is largely the result of the endeavor of the authors, through an intermediary body, to make an arrangement between the publishers and the librarians which would be a fair compromise. In doing so the league definitely left out of the question the matter of authors' absolute rights. It feels that any limitation of that kind is a limitation on the exclusive right of the author to his property, and it seems a pity that the question should be reopened to the extent of developing further acrimony. I can speak incidentally as a trustee of the library system which circulates 3,000,000 books a year (the Brooklyn Library), and also as president of the Stockbridge, Mass., Town Library, my country home, and so from the library point of view I can not see how there is any right in the libraries to have any privilege as against the author's right to control his property.

The right to import seems to be desired by the protesting libraries

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as a sort of means of control over prices, but it is submitted on behalf of the league that that is not a matter that can come within the purview of a copyright law, but should be taken care of by the law of the country as applied by the Federal courts on general principles. We ask that the copyright law should not be made the means of introducing that question into our legislation through that side door. The question is not a large one. It has appeared more in prospective than it really deserves, and it seems to me that the committee can safely rest on the compromise which has been arranged after a great deal of discussion and consideration. Speaking still as a representative of the copyright league, I was most glad to hear the intimation from the committee that there was no intention on its part to restrict in any specific way the author's rights.

Upon reading the argument of Mr. Porterfield it seemed to me that a mistake was made in supposing that the phraseology of the present bill goes too far in regard to the right to vend. The right to vend is the right to control sales. Whether any restriction can be imposed upon the original sale of a chattel is not a question of copyright, but of contract.

In the same way, Mr. Porterfield, I think, has made an error in his attack on the bill in suggesting that it prevents a fair use of a copyrighted work. The existing law covers comprehensively an entire work, and necessarily its parts, in providing that a work may not be copyrighted except with the consent of the author. Nevertheless, the courts permitted fair use, and there is no desire on the part of the authors, or, I think, of publishers, to restrict the fair use of copyrighted material. The general proposition is simply that one man shall not use another man's brain without paying for it, whether that man be a worker in the great literary field or a member of the great body of the public. These are the fundamental principles on which the league asks that the provisions of this bisl should be tested. In other words, it asks that this committee and Congress should have before them continuously the thought that the purpose of any copyright bill is to protect the exclusive rights of the author in whatever shape or form or method those rights may appear.

My colleague, Mr. Johnson, will take up somewhat in detail various suggestions which the Copyright League has to offer, because we feel that these hearings have been of the greatest value in bringing out details here and there, serving to clarify the subject; and later the league will be represented more directly, it may be said, by authors of great popularity, whose books have had large sale and who can speak to you better than we can as to one other feature of the bill—the extension of copyright. The Constitution certainly does provide only one restriction—that the exclusive right shall be for a limited time. That has been so narrowly construed that the venerable and venerated Chaplain of the Senate, Rev. Edward Everett Hale, who, in writing - The Man Without a Country," did for our nation in the time of the civil war a service second only to that of the man who led the troops to battle—I say that has been so narrowly construed that that book is now out of copyright and the author can not legally receive a single penny as a reward for that noble work, although the widows and orphans and other relatives of the private soldiers who fought in that war are still receiving pensions.

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