Co. can not take a McCormack record and claim it as a Columbia record, not can they take an Al Jolson record and claim it as a Columbia record. That is perfectly clear, because those things are owned primarily by the different companies. Mr. PERKINS. It relates to the production of some person who sings and with whom they have the right to bargain. Mr. PAINE. Actually. Mr. PERKINS. But so far as the music is concerned, they can take the actual music? Mr. PAINE. Certainly. Mr. PERKINS. And do they object to their competitors taking their actual copyrighted music? Mr. PAINE. I do not know whether they do or not. Under the law it does not make any difference whether they object or do not object. Mr. PERKINS. I know; but I wanted to see how it worked out, whether they objected or whether they were satisfied to have their competitors take their copyright music. Mr. PAINE. I do not think that it makes a bit of difference to them one way or another, as long as they are in a position to make use of their own music exclusively, to the detriment of all other music. I do not think that they care whether somebody else makes use of the same musical compositions—I think that, as a matter of fact, the Victor would be delighted. Mr. PERKINS. At the present time each of these large concerns have their own staff of composers, so to speak. Mr. PAINE. Yes. Mr. PERKINS. Those composers produce original music which is copyrighted by the company. Is not that the case? Mr. PAINE. That is right. Mr. PERKINS. Do these concerns, like the Victor Co., that have contracts with composers whose music is copyrighted, object to their competitors taking their copyrighted music? Mr. PAINE. I should not think they would. I should think they would be delighted to have the Brunswick Co. take their music or to have the Columbia Co. take their music. I should think they would be delighted to have that, because their interest is not at the present time. The thing I am arguing is that they desire not an exclusive right to themselves, but they desire the exclusive right of the things which they own, and they would like to have every talking machine company use nothing but Feist and Fischer music, to the detriment of all other music. And that is the thing that I am opposing. I think that they ought not to be able to build up such a monopoly to the detriment of the independent publisher. Does that answer the question? Mr. PERKINS. I am afraid that we do not understand each other. Mr. PERKINS. Yes. Mr. BURKAN. Mr. Perkins would like to know whether these talking machine companies who have now taken over publishing houses, have any objection to the general talking machine trade utilizing the numbers of their particular publishing house for reproduction. Mr. PERKINS. Precisely. Mr. BURKAN. The answer is they do not. They do not for this reason: It would do them no good. The law is very precise. The law says the moment that any publisher or any copyright proprietor uses the work upon records or rolls, or knowingly acquiesces in such use by another person, the work becomes from that moment open to public use. They can not object. But from my point of view I really can not see that these folks can come here and oppose this legislation for the reason that the Victor Co. will suffer in time as we have suffered not so much of the 2-cent proposition, but because of the fact that fly-by-nights, irresponsible, dishonest competitors have taken copyrighted works, have utilized them, have never paid the royalties, have never furnished any statements of account, have never lived up to the requirements of the law, and have been able to defy the owners of these rights. When the law of 1909 was enacted no provision was made for the strict enforcement of the rights guaranteed under the statute; it was simply a provision that the user shall pay 2 cents per roll or record and shall, on the 20th of each month, account to the actual proprietor. But, no provision was made for any punishment in the event that it did not do so; and our experience has been that a great many fly-by-nights and irresponsible organizations have utilized the works, have made no payments, have gone into bankruptcy, have engaged in blue sky operations, have cheated the public in selling fictitious stuff, have cheated composers and publishers by not paying royalites, and have dealt unfairly with their competitors, because they have had this advantage; they have had a 4 cent advantage with respect to each and every roll and record sold, because the Victor company pays the author or composer the 2 cents, yet this competitor using the same compositions pays no royalty and has the free use of it. When my time comes to be heard I will call your attention to certain facts with respect to the way it has worked. Mr. PERKINS. Mr. Burkan understands my proposition perfectly; that, under the present law the Victor Co. can not object to any other concern using any of their copyrighted compositions so long as the competitor pays 2 cents royalty for each reproduction. Mr. BURKAN. I might say that since we had the prior hearing on this bill there has been a remarkable change in conditions. Within the past two years the silent picture has gone out of being and the socalled sound picture, synchronized picture, has supplanted it. To have a synchronized picture you must have music for synchronizing purposes. The composer has the absolute right to prevent anybody from synchronizing his work for the purpose of public performance. Under the statute he has the right to say "I will not give you that right." What has happened? A contract was drawn by the principal publishers practically every publisher in the country, with the exception of one-and the Electrical Research Products Co. that owns the sound-reproducing devices that is a subsidiary of the Western Electric, which, in turn, is a subsidiary of the American Telephone & Telegraph Co. Under that agreement, each and every producer of motion pictures in the United States has free access to all the works published in America upon the payment of a certain fee fixed in the agreement. So, you see, these publishers, these composers, and authors, without the force of Congress, without any legislation, SEI ATOZNĚ & table, discussed it srned it out, and fins') wo 3-Test ReTeement: and they are perting new under that screment The composer must find an oldet for his works. It is a, ne vs ne for a composer to have in a ssie, or under lock snå kð, # cazadsition Ee wants it used. So it a man has some,ng to sell, and another man wants to buy, ther am going to sit down Szozná table, fust as the Wester Electne did. Mr. Well, who is here to-der, represented the Western Floetze I helped draft the agreement on behalf of the publishers. They sat around a table, and provided for the free use and portdet goods dingy of all the works of all the American copyright on nors on ĉe pay mont of a certain specified fee per year-so many dollars for the use of an entire work, so many dollars for the use of a part of it. It demonstrates the contention made through those hearings that if you let the parties alone and give them time, they will sit around s table and agree upon some sort of a proposition, because the user must have the product, and the composer must sell it. Mr. PERKINS. I did not mean to break in upon Mr. Paine's prosontation. Mr. BURKAN. Has that answered it? Mr. PERKINS. Yes: I think you have fully apprehended my question and have answered it. Mr. PAINE. There is only one other point I wanted to bring before the attention of the committee, because I only want to talk of the commercial side of this thing, and not the legal side at all. Mr. Burkan will tell of that. The other point I wish to make is this: That the use of copy righted works, of parts of instruments, serving to repoduce mechanically the copyrighted works, has vastly increased beyond the original intent of the act of July 1, 1909. At that time the only parts of instruments that we had any conception of at all were these player-piano rolls and talking-machine records. They were sold for use in the home; and while the law may have, for the sake of the argument here, been nes ceptable for that type of mechanical reproduction, that type of use, it is utterly inadequate to the problems that confront us to-day in mechanical use. The mechanical age has swept down on us with tremendous force and we find to-day that these talking machine records, or parts of instruments, serving to reproduce mechanically a musical work, are used in a great variety of different industries apart from this home use. The home use is slipping back into almost insignificance na compared with the tremendous additional uses, one of which Mr. Burkan spoke of when he mentioned the use in connection with the synchronized motion picture. Another use is in connection with the use of recorded radio programs. This law is utterly inadequate to meet the new conditions which invention and the business genius of the country has brought down on us; and, if for no other reason than because a continuation of the present act would affect a minor part of the mechanical business, it ought to be changed. We must look at the thing to-day from its larger commercial aspects, and not from its smaller commercial aspects. So, for two reasons in particular, I urge the passage of this net. First, because it gives the independent publisher the type of protec 106215-302 tion which he needs against the building up of these-I can think of no other word that quite fits the thing-these monopolies, these combinations between user and owner, that may work such a detrimental and deleterious effect upon the independent producer, and second, because we need this type of legislation in order to meet the new commercial conditions which mechanical invention has brought down upon us. Leaving those two thoughts before you, I urge that you consider favorably the passage of this act. Thank you. Mr. Buck. Mr. Chairman, I would like to introduce Mr. Edward H. Murphy. STATEMENT OF EDWARD H. MURPHY Mr. MURPHY. Mr. Chairman and members of the committee, I appear before the committee to-day in the interest of a specific group of publishers. Do you wish them named in the record? The CHAIRMAN. Yes. Mr. MURPHY. By name they are Harms (Inc.), M. Whitmark & Son, Remik Music Corporation, De Sylva, Brown & Henderson (Inc.), Atlas Music Co., and Crawford Music Co. This group of publishers is under one control. Their interest in this bill is, as has been stated on behalf of all the publishers-they want individually and collectively the right to control the use of their works, to say what shall or shall not be done with them-that if the work is used in one manner they do not want it to be used in another manner. They want to have the power to control it. That has been fully explained to you, and I will not repeat all of that. A question was asked a little while ago as to whether the mechanical companies had the power to stop other mechanical companies from using their works. I do not see how they could aggressively do that on the outside, and come before this committee and ask the opposite. If they come before this committee and say that the works should be open to all companies, they certainly can not with good grace set up the position that they themselves would like to control their own works exclusively. But I would like to ask a question to be answered by these companies: What is their position in those countries of the world that do not have compulsory license? Are they willing to exchange with each other the rights that they control? I will just ask that question and let them answer it. I will not go into any great length on this bill because the other speakers have covered the question quite fully. Mr. PERKINS. May I ask a question there, Mr. Murphy? Mr. MURPHY. Certainly. Mr. PERKINS. Is this Whitmark company one of the companies mentioned by Mr. Paine? Mr. MURPHY. Yes, sir. Mr. PERKINS. Did he not say that they were controlled by one of the reproducing companies? Mr. MURPHY. They are not, sir. Mr. PERKINS. As a matter of fact, just as soon as it becomes financially advantageous for any of these reproducing companies to oppose other persons using their music for 2 cents a reproduction they will do it, will they not? Mr. MURPHY. I could not prophesy what they will do. Mr. PERKINS. Does not every concern operate upon a basis of what is financially profitable to them? Mr. MURPHY. Obviously. Mr. PERKINS. And if they build up a large monopoly so that they practically control popular music, then they certainly would come down here and advocate a provision which would prevent other people taking their music for 2 cents a reproduction, would they not? Mr. MURPHY. Surely, if they felt they could succeed. Mr. PAINE. I think, Mr. Murphy, you ought to explain that this group is owned by a reproducing company which does not make commercial talking machine records. Mr. MURPHY. I did not interpret your question in the sense of meaning the ordinary mechanical company. This group is controlled by Warner Bros., which, of course, technically is a reproducing company; that is, they record and manufacture records bearing the works that are owned by these publishing concerns; but they use these records only in connection with their pictures. They are not placed on sale like the 10-inch or 12-inch records that you can go down to the store and buy and take home and play. You could not take any of these records and play them for that purpose. In that sense they are a reproducing company, but not in the same category as the companies we have been discussing. Mr. Buck. Mr. Chairman, I would like to present Nathan Burkan, general counsel of the American Society of Composers, Authors, and Publishers. STATEMENT OF NATHAN BURKAN, GENERAL COUNSEL for THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS, AND PUBLISHERS Mr. BURKAN. Mr. Chairman and gentlemen, my first appearance before this committee was in 1904 in connection with the general copyright revision. In the proposed revision the copyright control was extended to mechanical music reproducing devices absolutely, but through the opposition of the mechanical instrument manufacturers, on the plea that absolute control would deny them accessibility to works necessary for their continuance in business, that control was limited to the present compulsory license scheme at best, a makeshift to meet a very strenuous and violent opposition. From 1904 until 1909 we fought for recognition of the composers' rights in mechanical devices before the committee against the same interests that appear against this bill to-day. We struggled hard to secure the little we got under the act of 1909; and the noble experiment has continued from 1909, to this very day, the 4th of March. Mr. PERKINS. Just 21 years to-day. Mr. BURKAN. Yes. I am happy that I am alive to see the extraordinary changes that have taken place in the field of sound reproduction, and to demonstrate the truth of my prophecy that the mischief we cried against would not be successfully suppressed and our remedy advanced by the compulsory license scheme. Subtle inventions and |