Mr. Buck. I answered your question. That has been answered. in this room. There would be no use of me going back through the record. I did not come down here to-day to make any speech. There is nothing in that question there.

The CHAIRMAN. Has there ever been any contention from the opponents of this bill other than that of accessibility? As a matter of record, does not the record show that it has been the contention of the opponents of the bill that they were not given accessibility and that if they were given accessbiility to music, that they had no objection to the bill?

Mr. BUCK. That has been more or less a vein that has been running through this hearing to this extent the bill you have before you to-day is the original bill. Then as you recall a few years ago came accessibility; give us "accessibility." They said, "You fellows get together," and we tried to get together and the committee reported. a bill out drawn by themselves, which had accessibility involved in it. At the last session of Congress, after that bill was reported out, it was on the unanimous-consent calendar and it got up to the Rules Committee looking for a special rule, and the opponents of the bill went before that committee, and Mr. Wolverton went before the Rules Committee, and naturally no rule was given.

The CHAIRMAN. The thing that I want to bring out is this: So far as the committee as concerned, until the bill was drafted and placed upon the calendar, the opponents to this bill permitted the committee to understand, at least, that if they were given accessibility that is all they cared for.

Mr. Buck. If that would give the author and composer the free right to bargain, but they have repudiated that, gentlemen, and I will put that in the record, and reiterate it, that it is nothing but a continual, tremendous stall.

The CHAIRMAN. The reason I asked that question is because it comes to this proposition: I want to know if there is anybody here that is opposed to this bill with accessibility in it.

Mr. SIROVICH. I will ask Mr. Buck one question regarding the subject you have just spoken of. I have a habit going back where I do not get a proper answer and try to elicit it in my own way. In 1909 this 2 cent mechanical device bill was passed by Congress and the Senate. Is that right?

Mr. BUCK. Yes.

Mr. SIROVICH. As I look at that, and knowing the previous record, I call that universal accessibility. In other words, any mechanical manufacturer who makes records, according to that law of 1909, upon payment of 2 cents, has the right to manufacture any record of any composer or author. Is that right?

Mr. BUCK. Right.

Mr. SIROVICH. All right. Now, our chairman, Mr. Vestal, makes the statement that if the opponents who ask for accessibility were given accessibility, why this opposition? I say to Mr. Vestal and to the members of our committee that we get accessibility from what Mr. Rosenthal has stated because if we remove the 2 cents, which is price-fixing by the Government, remove that and do not give the composers and authors the right to charge anything, they will have this accessibility, true, but the one great, concrete danger which will arise in this whole situation, which I am looking at, is the fact

that where a composer wants to go and manufacture his own records, he is no longer a composer, he is a manufacturer at the same time, and he can compose his own record and manufacture it at the same time, and the others have no accessibility. Therefore, I say, and this is the point of Mr. Buck's, this is the contention which is the very great debatable problem, whether an author who is given a copyright franchise by the Government of the United States in the form of Congress, where we give him the protection of law, and he leaves that authorship, and becomes a manufacturer, or he manufactures his records and denies the accessibility to it to any other mechanical producer, that is not universal accessibility.

That is my point and I want to find out what we could do, if you people could get a compromise and get together with the other side in some way, then the whole problem could be solved; our committee would not have to waste time in hearings year in and year out. That is the bone of the contention, whether the author gets a franchise as copyright that protects him and he then goes into the manufacturing business and manufactures the records.

Mr. LANHAM. In that respect the copyright is the same as in regard to patent because patents also grant rights to exclusive manufacture. Has not the patentee right to manufacture under a patent and put the product on the market and keep everybody else from it, the same as you say here?

Mr. Buck. He has a situation the same as everybody else in this country. I want to answer that.

Mr. SIROVICH. In buying shoes you have different things patented? Is that like copyright?

Mr. LANHAM. It is not the actual copyright.

Mr. BUCK. I will correct one statement that the gentleman made in the record here, that Mr. Romberg was receiving a million dollars. Mr. SIROVICH. I did not say that.

Mr. Buck. He is not receiving anything like that.

Mr. SIROVICH. I understood he has made a quarter of a million. Mr. Buck. Mr. Romberg's concern offered these contracts, one of the best contracts.

Mr. SIROVICH. I hope he makes more than a million dollars.

Mr. Buck. It is in this record, a million dollars and I would leave it in if it was possible.

I

Mr. SIROVICH. I called attention to the fact that appeared in that connection. I did not say that. You brought his name in; I did not. Mr. Buck. I am very happy to put that name in the record. wish I could stand here and offer that obligation as to monetary compensation.

Mr. SIROVICH. Mr. Romberg is not opposed to this legislation. Mr. Buck. He is not.

Mr. SIROVICH. He is for the legislation.

Mr. Buck. Nevertheless the legislation does not prevent that.

STATEMENT OF KARL A. FENNING, WASHINGTON, D. C.

Mr. FENNING. You asked a question whether any here are opposed to this bill. I am a patent lawyer. I am chairman, national chairman of a group on patent legislation, made up of the representatives of nine associations of patent lawyers throughout the country. Un

Mr. Buck. I answered your question. That has been answered in this room. There would be no use of me going back through the record. I did not come down here to-day to make any speech. There is nothing in that question there.

The CHAIRMAN. Has there ever been any contention from the opponents of this bill other than that of accessibility? As a matter of record, does not the record show that it has been the contention of the opponents of the bill that they were not given accessibility and that if they were given accessbiility to music, that they had no objection to the bill?

Mr. BUCK. That has been more or less a vein that has been running through this hearing to this extent-the bill you have before you to-day is the original bill. Then as you recall a few years ago came accessibility; give us "accessibility.' They said, "You fellows get together," and we tried to get together and the committee reported. a bill out drawn by themselves, which had accessibility involved in it. At the last session of Congress, after that bill was reported out, it was on the unanimous-consent calendar and it got up to the Rules Committee looking for a special rule, and the opponents of the bill went before that committee, and Mr. Wolverton went before the Rules Committee, and naturally no rule was given.

The CHAIRMAN. The thing that I want to bring out is this: So far as the committee as concerned, until the bill was drafted and placed upon the calendar, the opponents to this bill permitted the committee to understand, at least, that if they were given accessibility that is all they cared for.

Mr. Buck. If that would give the author and composer the free right to bargain, but they have repudiated that, gentlemen, and I will put that in the record, and reiterate it, that it is nothing but a continual, tremendous stall.

The CHAIRMAN. The reason I asked that question is because it comes to this proposition: I want to know if there is anybody here that is opposed to this bill with accessibility in it.

Mr. SIROVICH. I will ask Mr. Buck one question regarding the subject you have just spoken of. I have a habit going back where I do not get a proper answer and try to elicit it in my own way. In 1909 this 2 cent mechanical device bill was passed by Congress and the Senate. Is that right?

Mr. BUCK. Yes.

Mr. SIROVICH. As I look at that, and knowing the previous record, I call that universal accessibility. In other words, any mechanical manufacturer who makes records, according to that law of 1909, upon payment of 2 cents, has the right to manufacture any record of any composer or author. Is that right?

Mr. Buck. Right.

Mr. SIROVICH. All right. Now, our chairman, Mr. Vestal, makes the statement that if the opponents who ask for accessibility were given accessibility, why this opposition? I say to Mr. Vestal and to the members of our committee that we get accessibility from what Mr. Rosenthal has stated because if we remove the 2 cents, which is price-fixing by the Government, remove that and do not give the composers and authors the right to charge anything, they will have this accessibility, true, but the one great, concrete danger which will arise in this whole situation, which I am looking at, is the fact

that where a composer wants to go and manufacture his own records, he is no longer a composer, he is a manufacturer at the same time, and he can compose his own record and manufacture it at the same time, and the others have no accessibility. Therefore, I say, and this is the point of Mr. Buck's, this is the contention which is the very great debatable problem, whether an author who is given a copyright franchise by the Government of the United States in the form of Congress, where we give him the protection of law, and he leaves that authorship, and becomes a manufacturer, or he manufactures his records and denies the accessibility to it to any other mechanical producer, that is not universal accessibility.

That is my point and I want to find out what we could do, if you people could get a compromise and get together with the other side in some way, then the whole problem could be solved; our committee would not have to waste time in hearings year in and year out. That is the bone of the contention, whether the author gets a franchise as copyright that protects him and he then goes into the manufacturing business and manufactures the records.

Mr. LANHAM. In that respect the copyright is the same as in regard to patent because patents also grant rights to exclusive manufacture. Has not the patentee right to manufacture under a patent and put the product on the market and keep everybody else from it, the same as you say here?

Mr. Buck. He has a situation the same as everybody else in this country. I want to answer that.

Mr. SIROVICH. In buying shoes you have different things patented? Is that like copyright?

Mr. LANHAM. It is not the actual copyright.

Mr. BUCK. I will correct one statement that the gentleman made in the record here, that Mr. Romberg was receiving a million dollars. Mr. SIROVICH. I did not say that.

Mr. BUCK. He is not receiving anything like that.

Mr. SIROVICH. I understood he has made a quarter of a million. Mr. Buck. Mr. Romberg's concern offered these contracts, one of the best contracts.

Mr. SIROVICH. I hope he makes more than a million dollars.

Mr. Buck. It is in this record, a million dollars and I would leave it in if it was possible.

Mr. SIROVICH. I called attention to the fact that appeared in that connection. I did not say that. You brought his name in; I did not. Mr. Buck. I am very happy to put that name in the record. I wish I could stand here and offer that obligation as to monetary compensation.

Mr. SIROVICH. Mr. Romberg is not opposed to this legislation.
Mr. BUCK. He is not.

Mr. SIROVICH. He is for the legislation.

Mr. Buck. Nevertheless the legislation does not prevent that.

STATEMENT OF KARL A. FENNING, WASHINGTON, D. C.

Mr. FENNING. You asked a question whether any here are opposed to this bill. I am a patent lawyer. I am chairman, national chairman of a group on patent legislation, made up of the representatives of nine associations of patent lawyers throughout the country. Un

fortunately, I am not able to speak for this committee of this association because they have not acted on this bill. The San Francisco Patent Law Association at a recent meeting, approved the bill as it stands. The position of the patent lawyers in general, and as far as I know, without exception, is that no law which provides for accessibility is constitutional. The constitution specifically provides that Congress may grant that exclusive right. It does not say that Congress may grant a right which is partially exclusive.

The question of license under a patent statute has come up many times in Congress and in almost every Congress for the last 20 years, at least, and in every instance, our profession has been able to kill those bills. If I may go back for just a moment to history, back in about 1700, the English statute provided for a price restriction on copyrighted matters. There was a provision that if copyrighted matter was published at a price too high, I think the Bishop of Westminster or some ecclesiastical official could determine what was the proper price upon which it would be sold. Before the Constitution, under our Articles of Federation, in the copyright acts enacted by a number of States, some of those acts specifically provided that if the matter published under a copyright was published at too high a price, either the price could be fixed and lowered, or license given to some one else to publish at a lower price.

In the Constitutional Convention it was proposed that copyright be granted to authors. It was proposed that patent be granted to inventors. Neither of those clauses in those terms was adopted. Instead of that the Constitution provides not that a patent, not that a copyright, is granted. The patent and copyright, as known at that time, were subject to compulsory license; that is, subject to working requirements. Instead of doing that, however, the Constitutional Convention adopted a clause which gives Congress the authority not to grant patents or copyrights, but to grant the exclusive right to their writings and inventions. The clause which the present copyright act has and which is to be amended by this present bill, has never been before a court, as far as I know, on the constitutional ground.

Mr. SIROVICH. On price fixing?

Mr. FENNING. The constitutional question. Personally, I am satisfied that if that section went before a court at the present time on the constitutional question, the court would have to say two things. Under the Constitution Congress has no right to put a compulsory license clause in copyrights. Second, unless Congress has endeavored to be unconstitutional, the copyright grant itself is involved.

That is what Congress did in the trade-mark act. Congress passed a law in respect to the registration of trade-marks generally, not limiting it to the commerce over which Congress had jurisdiction. Mr. LETTS. We have gone 21 years without anybody seeking means of relief.

Mr. FENNING. That is entirely possible. Things happen for a great many years.

Mr. LANHAM. Why?

Mr. FENNING. That is because the contention has not been raised. Mr. SIROVICH. Has that been tested before the Supreme Court? Mr. ROSENTHAL. The reason we did not test the question was that we realized that the court might hold the law was unconstitutional,