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The league asks, therefore, that justice shall be done to authors by lengthening the term to a period which is more in line with the action of other civilized nations than our present copyright law. It asks, further, that in all the consideration given by the committee to the subject more weight shall be given to the facť that the musical composer is as much entitled as any other author to the exclusive right, in whatever form copies or reproductions may be made, of his writing Memorandum on the bill to secure intellectual property, being "A bill to amend and
consolidate the acts respecting copyrights” (Senate No. 6330; House No. 19853; May 31, 1906).
[By R. R. BOWKER, vice-president American Copyright League.]
Constitution, 1787, Article I, Sec. VIII, 8: “ The Congress shall have power
to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and SCOV es."
It was a wise man who said that he believed in the Constitution, but not in reading it by the light of a tallów. dip. In the narrow sense the dictionaries define author' one who composes or writes a book (Webster), and “ writing” variously as a record made by hand," a production of the pen," “ any expression of thought in visible words” (Century); “ anything expressed in letters ” (Webster, Stormonth, Standard) ; "a written paper,” “a legai instrument” (Johnson); “a literary production” (Chambers) ; forming by the hand letters or characters on paper or other suitable substance (Buvier's Law Dictionary); “words made legible by any device," a document, whether manuscript or printed, as opposed to mere spoken words” (Rapalje and Law rence, Law Dict.); “ expression of ideas by visible letters ” (Anderson's Dict. of Law). For years Massachusetts voters cast a handwriting ballot until the courts held that a printed ballot fulfilled the “ written ballot” requirement of the Massachusetts constitution. But in the wider sense an author is creator and originator " (Webster, Standard), and a writing is the record of a thought or idea. Mr. Sousa found that the dictionaries in the Philadelphia Library used at the time of the making of the Constitution gave to the word “ writing” the broad definitions of a composure” and “playing the author." Congress, upheld by the courts, has specifically included (law of 1870) under “ writings” in the Constitution a “statue," statuary,” “ model,” without requiring the artist to make a preliminary sketch (if that be specifically a writing)—otherwise, as sculptors are not “inventors” making discoveries,” they could not be protected at all; and in other countries protection is extended to oral delivery of an address presumably but not necessarily written. It might be claimed under a restrictive interpretation of the Constitution that only works specifically relating to science and useful arts might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Constitution, subject to the final decision of the Federal courts, has not been challenged.
The opposition to this bill has been voiced chiefly by the legal representatives of the manufacturers of mechanical instruments, of perforated music rolls, and of phonographs or cylinders or disks therefor, i. e., from those who have “pirated musical compositions and are interested in excluding sound records” from copyright protection. These have made the astounding and unfounded assertion that the proposed bill represents a star-chamber," "log. rolling," " conspiracy,” entered into at the initiative of the Æolian Company as a music-roll trust." The American Copyright League has for many years favored a revision of the copyright laws, and it has had no communication, directly or indirectly, with the Æolian Company, nor any knowledge of any relations by this concern or its representatives with the copyright conferences. These conferences were confined to representatives of organizations interested in copyright and legal authorities, meeting at the invitation of the Librarian of Congress as though in his office at Washington, and, although the meetings
were private and unreported, they were in no sense secret. No organization of “sound-record” interests was known, and if the Æolian Company had, as alleged, representation through the music publishers that fact was unknown to and had no influence upon the other participants. The American Copyright League stands, as it has stood for a quarter of a century, simply and solely for the protection of authors' rights to the fullest extent, and it asserts that a musical composer is as fully entitled as is the author of any other creative work to the exclusive and full benefits of his compositions in whatever manner reproduced. These opponents of the bill base their objections largely on a restrictive definition of the word “writings," and Mr. A. H. Walker, recently counsel for the Auto-Music Company in the White-Smith v. Apollo Company sound-record case, criticises the bill because this word“ writings” is interpreted throughout the bill by the word “works,” although this accurately reflects the understanding of Congress and the interpretation of the courts. They would, in fact, confine copyright protection specifically, it may be said, to e-y-e-deas—that is, visible records--and exclude as not visible or legible by the eye copies of musical compositions mechanically made and interpreted.
The United States Supreme Court, in the Sarony decision, extending the principles of the copyright act to cover photographs, said: “By ‘writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is probably that they did not exist, as photography as an art was then unknown.” It seems evident that the phrase “ visible expression ” as used in this decision was intended to give a broad definition and not to narrow the definition by exclusion. This view is confirmed by the later decision of the same court in Holmes v. Hurst: “It is the intellectual production of the author which the copyright protects and not the particular form which such production ultimately takes; and the word 'book' is not to be understood in its technical sense as a bound volume, but any species of publication which the author selects to embody his literary product.”
The earliest writing which remains to us is in the Assyrian wedge-shaped inscriptions, made by pressing the end of a squared stick into a soft clay cylinder; the phonograph point inscribes its record in exactly the same manner
wax” or composition of the cylinder or disk, for the mechanism only revolves the roll, and the point is actuated by the sound vibrations. The words “phonograph,” “ graphophone,” and “ gramophone” literally mean “ sound writing,” for the Greek form graph, the Latin form scrib, and the Saxon form write, equally parts of our language, denote exactly the same meaning. It is even probable that a future development of phonograph impressions (the third dimension being translated into breadth of stroke as can be mechanically done) will give ultimately a visual phonograph alphabet even more natural and logical than Professor Bell's remarkable system of “ visible speech,” which, of course, like all alphabets, can be read only when the reader has mastered the significance of the symbols. Mr. Edison has himself made some experimeats in this direction, though the confusion from the overtones, which give quality of speech, has so far prevented result. A large share of literary productivity to-day is by voice dictation recorded mechanically by a stenographer on the typewriter or directly on the phonograph disk, and I may instance from personal experience a further step. As one of the committee for the Edison birthday dinner, commemorating the twenty-fifth aniversary of his invention of the incandescent lamp, I was asked to supply some original verse, and it occurred to me to put this in shape by help of Mr. Edison's inventions without direct or indirect hand or type writing. Accordingly I completed the verses mentally without use of paper and voiced them into an Edison phonograph, verifying this through the telephone, and the lines were set in type by the printer from the sound record, and thus printed on the menu for the dinner. Thus my formulated ideas were recorded through the nerves and other mechanism of the vocal organs instead of through the nerves and other mechanism of the hand directly by the phonograph point on the phonograph cylinder; and it seems a common-sense inference that if I had caused copies of the phonograph cylinder, though not legible in the ordinary sense, to be published instead of the secondary copies in print I should be as much entitled to copyright protection in the one case as in the other. The “ telegraphone directly records on a steel tape the sounds of the human voice as sent through the telephone, and
upon the “
by an absolutely invisible rearrangement of the magnetized particles of steel makes a writing in which there is no possibility of visual legibility.
Moreover, invention is now developing a series of reproducing mechanisms, such as Doctor Cahill's “telharmonicon,” or dynamophone, in which musical compositions will be translated to the ear without the interposition even of a cylinder or disk sound record; and it seems a common-sense inference that the musical composer should have as full rights in this as in other forms of copying or reproducing his thought. Budapest is said to have not only a telephone “ newspaper," but a system of reading novels and other works of literature to telephone subscribers, and if this should reach such proportions as substantially to reduce the sale of the printed copies of a new novel from which the author would receive benefit, it would also seem a common-sense inference that the same or an equivalent royalty should be paid him.
In music writing or notation there are two and only two essentials : Relative vertical position, showing pitch, and relative horizontal position, showing dura. tion of notes. The earliest form of our present music writing is the system of the “large,” “ long," “ breve,” and semibreve” notes, in which the pitch was shown by the vertical relations of the notes, and the length of the note by the length of the black mark, the “large” mark being twice the length of the “ long mark. This corresponds closely to the perforated music roll of today, which could be read by a practiced eye with, and probably without, staff lines to the extent that if every other form of reproduction were destroyed the melody and harmony of a musical work could be reproduced into the ordinary notation of music writing.
I speak from personal knowledge of these music rolls, having had a mechanical instrument for some years. The different kinds of rolls differ in the relative spacing and in distance from the edge of the roll, which gives the standard, but a foreshortened photograph of any, bringing them to the same scale, would pattern closely the early form of music writing above cited. The London postal telegraph system dispatches newspaper material from St. Martin's Le Grand throughout the Kingdom from continuous perforated ribbons made somewhat in the same way, visible and legible only to an expert, and reproductions by the medium of this device would certainly not vitiate copyright. In the “ Perforated Roll Case” of White-Smith Company v. Apollo Company, in which A. H. Walker participated as counsel for the Auto-Music Company, Judges Lacombe, Townsend, and Coxe, in the United States circuit court, in the decision, to which they considered themselves" constrained,” to use the word of the court, by the necessity of strict construction, stated that “a perforated roll is not a copy in fact” (i. e., an exact reproduction) “ of complainants' staff notation;" that “it is not designed to read as the original staff notation is; ” that such reading “ would establish merely a possibility of use as distinguished from an actual use," and that the rolls are mere adjuncts of a mechanism which appropriates the author's property and publishes it by producing the musical sounds." This decision refers, of course, only to the present statute, and is yet to run the gantlet of the Supreme Court, but it may be observed that the present law gives to the author or proprietor of a musical composition the sole liberty not only of printing, but of publishing, copying, vending, performing, or representing a musical composition; that the statute does not restrict “copying” either to a copy of
staff notation” or from or in any particular form, but prohibits in general any copy of a musical composition; that there is no suggestion in the statute that the copy must be one to be read, e. g., a copy of a sculpture; that any sound-record is in the wide sense as truly a copy of a musical composition as a printed sheet, which is not a copy, in fact, of the author's manuscript writing; and that as the roll has for its sole purpose the performing by the aid of a mechanism useless without it a musical coniposition, just as a printed sheet of music has the sole purpose of performing by the aid of the voice, the piano, or the orchestra, a musical composition, the maker and vendor of the roll is in exactly the same position as the maker or vendor of a printed sheet of music. These considerations give some ground for the opinion that the Supreme Court may reverse this decision and include sound records under the present copyright law; but this decision of the court makes the more emphatic the further opinion of Judges Lacombe, Townsend, and Coxe, when these eminent judges state, as if to the present committee, that the rights sought to be protected belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of such statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as result from the acts of defendant."
But even if phonograph and perforated records should not be considered, as is sculpture, to be “writings,” the arguments of the opponents of this bill do not fit the case. The Constitution explicitly provides that authors shall have exclusive rights to their writings. This can not mean exclusive rights to their written manuscripts, for these are protected by common law and no constitutional provision was necessary. It meant and means evidently that authors shall have exclusive rights to the benefits of their writings, the usufruct of the property they have created, and that means practically a monopoly control over all copies or reproductions from such writings, whether the copies are in handwriting, printing, or any other form. A musical score is definitely a writing, for it is even more than a literary manuscript originally in the personal handwriting of the composer himself, without the intervention of a stenographer or a typewriting machine. Therefore, if the narrowest meaning of the word “writing” should be interpreted into the Constitution such as would exclude sculptures and other works which are admittedly proper and legal subjects of copyright, it would still specifically include musical and dramatic as well as literary manuscripts. There is no specification in the Constitution confining the exclusive rights over writings to copies in handwriting or print or any other stated process of reproduction; in fact, the Constitution does not use the word * copyright” or in any way limit by specification the comprehensiveness of the exclusive rights Congress is thus authorized to secure. Indeed, Congress in the copyright laws has intérpreted the Constitution to cover the several artistic or reproductive processes from time to time developed or invented ; thus in the law of 1865 the provisions of the copyright laws were extended to include
photographs," which did not exist at the time of the adoption of the Constitution—which word specifically means light writings," as phonograph records specifically mean sound writings.”
The position taken by the American Copyright League is that an author is literally entitled to the exclusive right--that is, the exclusive benefit-in his writings, in whatever form the writings—that is, his recorded thoughts—can be reproduced for sale or gain. If Mark Twain writes a book or Bronson Howard a play or Sousa or Victor Herbert a musical composition or Millet makes a painting or French a statue, each is equally entitled to whatever benefit inures from his creative genius. Mr. Sousa has stated clearly that although Caruso has been paid $3,000—and the fact widely advertised for singing into a phonograph record, and his own band (not under his leadership) has also been paid for playing his compositions and those of others into the phonograph horn, he has never received as a musical composer 1 cent for such use of his creations, though from twenty to a hundred of his compositions are to be found on the catalogues of the several manufacturers of mechanical instruments. Mr. J. Howlett Davis, who properly appeared as an inventor in defense of his own inventions in mechanical instruments, which he mistakenly believes would be rendered useless if the copyright protection were extended to sound records, really asked that Congress should protect the thing which he had invented and compel users to pay for it, but should permit him to use the thought which the musical composer had invented and expressed without paying for it. His argument analyzed presents an even stronger argument for the proposed copyright bill than for the protection of patented inventions. When Mr. Sousa buys a patented cornet he has paid for the use of it, but Mr. Sousa makes no claim either to make another cornet like it or to play copyrighted musical compositions for profit without payment or permission. A piano, a pianola, a music roll or new form or mechanism is patentable; a musical composition as played on a piano by hand or by mechanism, whether reproduced on a printed sheet or a mechanical roll, is copyrightable; but each should have like protection. I speak from specific knowledge as one who has taken out patents as well as copyrights and as the active head for some years of the Edison Illuminating Company, of New York, and a participant in successfully defending the Edison lamp patents. Mr. Edison, both as an inventor and as a manufacturer of his own inventions, has profited much more than a million dollars from his patents, and would naturally be expected to be foremost in upholding the right of authors to . payinent for their brains. It is to be regretted that his phonograph company has instead opposed the protection of musical composers and claims the right to use their brains on Mr. Edison's invention without payment.
The legal gentlemen representing the sound-record " vested interests ” assert that millions of dollars had been invested in the industry, and that they should have a right, on paying a dollar for the printed sheet of music, to translate that into sound records and multiply it indefinitely, paying themselves a profit
on these millions of dollars without an additional penny to the musical creator. Their clients knew perfectly well that they were taking chances in appropriating the musical compositions for which they had not paid, and if they should now be mulcted under a decision of the Supreme Court or required in future by the passage of this bill to recognize the rights of the musical writer, they can have no criticism to make. Their $56,000,000 boasted capital should be in fact 56,000,000 arguments for the composer. I have bought many of these perforated rolls, which sell to the public at from $1.50 to $3 or more, for which the perforators are said to receive a cent and a half per running foot, or from: 25 cents to a dollar per roll; and I may suggest that the price and margin of profit are quite adequate to pay a dime or a quarter a roll to the musical writer without increase of price to the public.
Mr. Charles Porterfield, writing in Law Notes (published at Northport, N. Y.), who joins in the opposition to the protection of the musical composer, makes, like Mr. Walker, an attack on the bill in general, asserting, e. g., that under the fundamental clause that the copyright shall include “the sole and exclusive right
to sell, distribute, or let for hire, or offer or keep for sale, distribution, exhibition, or hire any copy of a copyrighted work, a personi other than the copyright proprietor could not own a book, nor bequeath it, nor an estate dispose of one, nor a bookseller keep it for sale, nor a library lend it. Mr. Porterfield at the same time expresses satisfaction with the present law. But the present copyright law gives to the proprietor the exclusive right of “ vending” a copyright work, and the phraseology of the new bill simply makes more clear the right of the copyright proprietor, scarcely to be questioned, to control the chattel property in which his incorporated right is embodied. Any owner of property may do as he pleases with it, whether it is a piece of land or an umbrella or a manuscript or a book. He can keep it or sell it or let it or show it, as he pleases or not. The owner of the copyright of a book can under the present law publish a limited edition of a book and sell it to whom he may please. He should certainly be able to sell his book under restrictions if he so chooses, as the proprietor of a piece of land may restrict his land in selling it from use as a stable But is scarcely to supposed that an author or copyright proprietor is likely to prevent the sale of his book by a bookseller or prevent its use by a library any more than he does so now. The same is to be said as to “ fair use" of extracts from a copyright work, which is no more per'mitted or prevented by the existing law than by the proposed bill. In his sweeping condemnation of the pending measure Mr. Porterfield also can see no difference between section 2 and section 21. The first is a negative or preventive provision intended to safeguard the proprietor of an unpublished work in any existing common law or equity rights against copying, publication, or use of his work—a provision which, if included in the famous statute of Anne might have saved England and this country from the serious denial of commonlaw rights which that statute imposed upon English and American law, while section 21 is a positive and specific provision for the collection of damages and the obtaining of an injunction. Before the year. 600, when Columba surreptitiously made a copy of a book owned by his teacher, Finnian, the copy was reclaimed under the King's decision “To every cow her calf ; " and it was to enforce by practical remedies the common law that Parliament passed the statute of Anne, with the unfortunate result that a divided court construed the statute to supersede. the common law.
The opponents of this bill, chiefly the automusic interests, recently organized into the miscalled "American Musical Copyright League,” which should rather be named an anticopyright league, and the dissentient librarians, organized :S the Library Copyright League, have taken the usual course of falling back upon the plea that in the interests of the public the author should not have exclusive right to his writings and to manage his own affairs, but that Congress should prescribe how he should market his property. This commouly takes shape in the royalty plan, which the latest book on copyright, that of • Augustine Birrell, M. P., a member of the present British cabinet, criticises as a "preposterous scheme,” and the sound-record representatives have incidentally introduced this same suggestion, that Congress should provide for "fair play to the public by permitting any maker of sound records to reproduce any copyrighted work on fair payment to the composer. Now, the essence of . copyright protection, as of the protection of any kind of property, is that during the “limited term of protection the author shall have exclusive right to sell or dispose of his own property as he likes. Copyright is a monopoly only in the sense that any ownership is a monopoly. Says Herbert Spencer : “If I am :?