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REPEAL OF PRICE-FIXING CLAUSE IN COPYRIGHT ACT
FOR MECHANICAL REPRODUCTION
TUESDAY, MARCH 4, 1930
UNITED STATES HOUSE OF REPRESENTATIVES,
COMMITTEE ON PATENTS,
Washington, D. C. The committee met at 10.15 o'clock a. m., Hon. Albert Vestal (chairman) presiding.
The CHAIRMAN. The committee will come to order.
The meeting is called this morning to take up H. R. 9639, a bill to amend the act entitled "An act to amend and consolidate the acts respecting copyright," approved March 4, 1909, as amended, in respect of mechanical reproduction of musical compositions, and for other purposes.”
The bill will be printed in the record at this point. (The bill is as follows:)
(House Report No. 9639, Seventy-first Congress, second session)
A BILL To amend the act entitled "An act to amend and consolidate the acts respecting copyright,"
approved March 4, 1909, as amended, in respect of mechanical reproduction of musical compositions, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That subsection (e) of section 1 of the act entitled “An act to amend and consolidate the acts respecting copyright, approved March 4, 1909, as amended (United States Code, title 17, section 1 (e)), is amended to read as follows:
"(e) (1) To perform the copyrighted work publicly for profit if it be a musical composition, and to make any arrangement of setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: Provided, That the provisions of this act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after July 1, 1909, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights."
SEC. 2. The first paragraph of subsection (e) of section 25 of such act of March 4, 1909, as amended (United States Code, title 17, section 25 (e), and any other provision of such act of March 4, 1909, as amended, in respect of the royalty of 2 cents on each part manufactured of instruments serving to reproduce mechanically a copyrighted musical composition are hereby repealed.
Sec. 3. This act shall take effect on July 1, 1930, and shall not affect parts of instruments serving to reproduce mechanically musical works manufactured prior to such date.
Mr. PERKINS. It is rather a peculiar thing, but the act is 21 years
The CHAIRMAN. We have with us this morning Mr. Chind blom, à Member of Congress. Mr. Chindblom if you desire to, be heard
upon this matter we are always pleased to give Congressmen the right
other business to attend to and desire to be heard at this time the committee will be glad to hear you.
Mr. CHINDBLOM. Mr. Chairman, I am very much obliged for your courtesy. I did not expect to be heard on the bill at this time. The bill, as I read it as compared with prior bills, has abandoned all question of accessibility.
The CHAIRMAN. That is the effect of it.
Mr. CHINDBLOM. I presume you will hear the proponents of the bill first; and I am not one of them.
The CHAIRMAN. Your pleasure in the matter will be ours.
Mr. CHINDBLOM. If I am to address myself to the committee at all I, of course, would much prefer to do that after the presentation in favor of the bill has been made.
STATEMENT OF GENE BUCK, PRESIDENT AMERICAN SOCIETY
OF COMPOSERS, AUTHORS, AND PUBLISHERS; MEMBER EX-
The CHAIRMAN. Mr. Buck, will you take charge of those in favor of the bill?
Mr. Buck. My name is ene Buck. I am president of the American Society of Composers, Authors, and Publishers, a member of the executive committee of the Authors' Leage of America, and a director of the American Dramatists.
Mr. Chairman and gentlemen, we are here to-day, as we have been for the past six years, in an attempt and an endeavor to secure for the creators of musical works the free right to bargain that is given to everyone else in this country.
It is very difficult for me or the gentlemen who are with me as the proponents of this piece of legislation to say anything new on this particular subject; and the same statement I feel holds true for the opponents. You have the most exhaustive record by everyone involved and everyone this legislation affects and I trust that you will pardon me, or any others who appear before you for the reiteration of the facts and ideas that are involved. Going back to the act of 1909–because, like a river, it must be traced from its source—that is the particular point in American legislation when this iniquitous unusual piece of legislation was enacted as I have said before, in the year 1905, the late President Theodore Roosevelt, seeing the necessity for the revision of the copyright act, advocated that something should be done; and, after a period of four years of discussion pro and con,
the act of 1909 was passed. The particular phase of the law that the composers and authors have come before you to amend to-day was something that was passed without a hearing, that was injected into the bill. No one had a right, or an opportunity, to discuss this particular phase, namely, the compulsory license clause.
I find myself very conscious, in discussing this matter, of the fact that I am saying the same things to you that I have said here before. For six years we have appeared here consistently with the one purpose
in view to try to rectify ths piece of legislation. Our opponents, naturally, are violently opposed to a change, because it is going to take something away from them that they have been enjoying, and indulging in, financially and otherwise since 1909—and I can not say that I blame these gentlemen for violently opposing this legislation.
To make it very clear, and as concise as possible--and, I indulge the hope, as brief as possible—there is no place in the field of science, or arts, even within this domain of copyrights that is anything quite like what the author and composer alone must suffer under. For instance, I write a song to-night, I take it to a publisher as my agent; he publishes the number and sheet music copies are printed. Around 1888 or 1890 the mechanical industry business, as we call it, started to make an impression in this country—the transference of the musicians' thoughts and tunes into wax. Naturally, that is a byproduct of the work of the author and composer. But, after the publisher publishes my song, if the Victor Co., or the Columbia Co., or the Edison Co., or the Brunswick Co., or any firm that makes records, desire to make a reproduction of that work on wax, the sale to the public by the publisher gives it to the Victor Co.; and the unusual part of the procedure is that the minute he gives to the Victor Co., or to the Edison Co., or the Brunswick Co., the right to copy that song on a record, any company in America can reproduce that work for a definite set price; and that contract was made by law-not by the man who created the work—not by the man who holds the copyright. That was put in the law back in 1909 and leaves the maximum amount that I, as an author can derive from the mechanical reproduction of my song, 2 cents a copy-either as an author or composer. To go a little further, take this illustration: I write a song in conjunction with a publisher who distributes that song and the composer who writes the music; and we have the munificent sum of 2 cents to split between us. That is nothing less than cold blooded price
Let us follow the natural course of the last illustration. The song is now to be reproduced mechanically by a phonograph company. The next step is for the phonograph company to engage a well-known singer, such as John McCormack, or Ukelele Ike, or Marion Harris, or Ruth Etting, or any person who has a reputation for making phonograph records. They make a phonograph record of it-or they engage Mr. Paul Whiteman, or Mr. Lopez, or the Victor Recording Orchestra to make what we call a dance arrangement. Mr. McCormack, Mr. Whiteman, or Miss Etting have the right to walk into the Victor Co. and bargain. They get so much a record for singing or performing the work that I created. They have the right to sit down with Mr. Victor, or Mr. Brunswick, or Mr. Columbia, or Mr. Pathé and say: "I want so much to make this.” They have the individual right to bargain; they have the individual right of performing exclusively for that manufacturing company. If that manufacturing company desires to tie up Mr. Whiteman—and the same applies to any recording company-Mr. McCormack or any of the other singers--they have the privilege of sitting down with them and entering into an individual contract; but I, as the composer, the person who made it possible, am limited by Congress—by law. I must take 2 cents, to be distributed, if I work with a composer or publisher; but everyone else has the free right to bargain except the man who creates the work.
I have yet to hear even our opponents not admit before this committee, or other committees in any hearing, the free right to bargain. They then turn and say, Yes, we subscribe to that but we must have accessibility.” They painted that bugaboo; and that bugaboo will be trotted out before this committee and you will hear it again-fear of this great monopoly—that if they do not have accessibility one major company such as the Victor or some other company with great financial resources would gather together all the composers and authors of the country and pay them such fees and make it so attractive that the other record makers would be put out of business.
Gentlemen, for 21 years we authors and composers whom I have the honor to speak for have suffered under this piece of legislation. That is my business; that is my trade—for some 17 years I wrote the Follies and Midnight Frolics—I have written hundreds of songs. I am what you call an author—that is I create the thought and work in conjunction with the composer. It has been my great privilege to have written in collaboration with the greatest American composers such as Victor Herbert, Rudolph Friml, Jerome D. Kern, Raymond Hubbell, Dave Stamper, James Hanley, and the leading American composers.
This bill removes what I would call an insidious part of copyright act, you may say, where it is ultimately unfair when it puts men like Victor Herbert, Olie Speaks, who, incidently, is a brother of a Member of Congress by that name, and is the gentleman who wrote “On the Road to Mandalay." His brother sits with you in Congress. The act as it now exists puts gentlemen of that caliber in the same category with a one fingered fly-by-night composer.
There is a distinction, and there is a difference in creative works. You can not put a man like Herbert who will devote his life to the creation of musical works that will live when most of us are forgotten, in the same class with the fellow who picks out the tune and writes one tune possibly that happens to catch the public fancy and never writes another. You can not put a man like John Philips Sousa who has contributed such things as the “Stars and Stripes Forever, “Semper Fidelis," and the “Washington Post March," in the same class with that man. You can not with any degree of fairness take a man who writes a symphonic work, a major work, and say that this man shall only get 2 cents; yet that is what this law says. It removes the incentive for initiative. It sets these men apart among all creative workers in literature and elsewhere, and discriminates against them. For instance, you gentlemen do not subscribe to the theory that because my good friend 0. O. McIntyre, or any writer should sell the products of his brain to a newspaper that engages him exclusively to work, every other newspaper in the world is entitled to take that man's work and to set a certain price upon it. I am sure you do not mean that, but the law pertaining to authors and composers says that.
What has happened in this case is that you have regulated and restricted the author and composer and left unregulated and restricted the man who buys and sells his products. He is allowed and permitted to charge any price he wants to—and in most instances that is all the traffic can bear. He is allowed and permitted by law, with his patents and otherwise, to bargain and enjoys the free right of bargaining; but the man who creates it, the man who helps make
these things possible--and I say with all the sincerity in the world, there is no committee in the world to-day that is more important than the committee I am addressing at the moment, because from this committee emanates and deals art, culture, science, discoveries, education, and entertainment. When you stop to analyze it, those are the basic things for the future of this nation—its patents, and its thoughts, and its culture, and its ideas. You gentlemen sit here and function to try to see right prevail. We may appear before you and give expression to what we feel and think about these problems, but it is up to you to discern the facts behind the mask of the man who is talking before you, to see whether he is on the square or not, whether he believes what he is saying and the men he represents, and whether an injustice exists or does not exist.
This committee has had patience; it has had sympathy; and, thank God, it has had imagination. It has sat here for hours and days and there has been established in the past six years the most exhaustive record on copyright and what pertains to copyright, that has ever existed in Congress.
Our opponents are going to tell you that last year we had a bill and overnight a sudden change happened, that we wanted to compromise. We did want to compromise; and we marched out of this room some years ago on the advice of the chairman of the committee, on a very intelligent, logical idea of “letting these men get together and see what they could do, and then come in and we will see what we can do to help you.” We started to sit down and get together to do something to lead this situation out of chaos and after hours, days, weeks, and years, in every possible attempt, with sympathy and understanding to try to get some place with this proposition, it amounted to naught because our opponents did not come in good faith. We sat down and we made concessions. We said: “We will do this"; we made a straightforward attempt to get together. We came down and asked for the free right to bargain like everyone else has. That was all that we wanted; and that is the very thing we are asking for today. Just give us the right-maybe a song is worth but half a cent; maybe it is worth but a quarter of a cent—but do not subject us to compulsory license; give us, the creators, the fellows who help make it possible to build these great big theaters, who help make it possible for these inventions to exist-give us a chance like they are giving everybody else and remove this thing from the law.
These gentlemen who will come before you have another smoke screen they are going to let loose. In former times they have told you about the American Society--& terrific, monopolistic chimera that was just going to take the Victor Co. and the motion-picture industry right out of business. Let us put the cards on the table and see what the American Society is. The American Society is an organization which consists of all the authors and composers, and their publishers in America brought together because in the year 1914 my dear beloved friend, Victor Herbert, found that a restaurant on Broadway was taking one of the numbers from his opera, having å person in costume come out with an orchestra and sing his song without asking Herbert's permission, and making a couvert charge. Naturally, Herbert went to a man who is sitting in this room, Mr. Burkan, who, since 1904 has worked in favor of this bill, and pleaded, and begged for even some small crumbs of protection for the creative