Lapas attēli
PDF
ePub

I understood you to ask, Mr. Michener, if Mr. Chindblom did not think we ought to place the copyright holder on a parity with the holder of a patent.

Mr. MICHENER. Yes. I asked if that was not the real purpose of this legislation.

Mr. BUSBY. Yes. In an early case, Wheaton versus Peters, in 1834, the Supreme Court of the United States said that in extending this protection, that might be extended under the provision of the Constitution authorizing Congress to grant for a limited time the exclusive use, the Congress had the authority to place a limitation on that use, or a condition incident to the monopoly granted.

Now the copyright act grants to the holder of the copyright the exclusive use of his music, and the court said then (1834) that when he placed it on the market and made a sale of it, that was the end of his protection under the monopoly; so far as he was concerned that he had received all the protection that was originally contemplated.

That was true until 1909, when he was given the right to go into the movie theater and to the orchestra, and since then to the radio broadcasting stations, even though they are using nothing in the world but a graphophone record, and collect a royalty on that.

Let us follow that through to a patent. Suppose a man is given a patent on a mill. He uses that for his own private use, but he also sets it up to grind for the public, and the public patronizes his mill. Then the patented article is being put to use, serving the public, and the public is getting the benefit of it, and the man who owns the patented mill is getting returns because of the fact that he is serving the public in a commercial way with a patented mill and he is obtaining returns because the public is patronizing this patented device. There is quite a difference between that and the graphophone man selling his record.

Mr. PURNELL. There is no limitation.

Mr. O'CONNOR. Take the automobile field. No one is ever going into that to make anything unless they get a license from the patentee.

Mr. BUSBY. You are getting into a different field.

Mr. O'CONNOR. Take any simple invention. The patentee can control it. Nobody can make it so he can sell it without getting a license.

Mr. PURNELL. He fixes the royalty. Here we fix the royalty.

Mr. BUSBY. Because we have given him an additional field in which to operate. Not only does he have the monopoly to make and sell his music, but in 1909 we gave him the right to go further. We have said that these other people, if they work in that field, they are made by law to work for you, the copyright holder of the copyrighted music, even though a Caruso must sing the music on the record.

Let me apply it. If a man puts a graphophone record on a machine in a small town in his moving-picture show, under the law we have already enacted for the holder of the copyright who is nearly always the music publisher, they are entitled to go to the movingpicture show owner and collect from him $250 " and up" because he used the graphophone record which he had bought and paid for, on which he had and the manufacturer of the record had paid a royalty;

66

and this because the movie owner is using it in connection with a public business.

What difference is there between that and the man who grinds at his mill for the public, with his patented device? None in the world. We have given the C. A. P. (Society of Composers, Authors, and Publishers) an additional field in which to collect funds by the laws of 1909 in which we placed the limit of 2 cents per record.

Mr. MICHENER. Is there not this distinction? I am not so familiar with the law.

Mr. BUSBY. Before you ask that question, let me say this: That is the proposition connected with this particular bill that is before us to-day.

As the members of this committee suggest, they are not so familiar with the copyright law. Neither was I familiar with it. Neither are the Members of the House, and for that reason we ought to take this bill back, since we have all gotten our interest aroused in it, and go into the merits of the matter and the details, and become informed before we pass such legislation.

Mr. MICHENER. My question is this-and it is asked for information

Mr. BUSBY. I beg your pardon. I wanted to take your text and preach a little sermon.

Mr. MICHENER. The patentee has his patent. He can let the mill man use it and pay his license, or he can sell it absolutely to the mill man at such a price as he may think advisable. There is no limita

tion.

Under existing law there is a limitation of 2 cents, is there not?

Mr. BUSBY. No; there is an additional field created for the holder of the copyright, and he is given that additional field with a limitation. By the bill before us the copyright holder seeks to retain the advantage given him in 1909 and be relieved of the limitation under which that advantage was given him.

Mr. MICHENER. But he can not collect more than 2 cents. If that is true, there is a limitation.

Mr. BUSBY. In this additional field, for collecting through the Carusos, McCormicks, and other artists, and the phonograph record makes revenue from the public

Mr. MICHENER. He can go to the millman, but he can not contract with the millman as a free agent. The millman says to him, "I am going to use your device, but I am not going to pay you more than 2 cents. If you make a contract with anyone else for less than 2 cents, you must file that contract in Washington, and I am going to grind in my mill on the same terms as the other fellow."

Mr. BUSBY. But I left that field of thought and went to the movie picture show, where you, as an attendant, heard the music incident to the picture, and the man who operated the show was required to pay because his business was public when the man who operates the mill is not required to pay on the patented device although his business is public. We have offered an additional field to the holder of a copyright from which to collect a revenue-I say an additional field to that which we have placed by law to the advantage of the holder of the patent.

Mr. MICHENER. My observation was entirely superficial. I have not studied the technique of the bill.

Mr. BUSBY. That is the proposition with all of us. Mr. PURNELL. You think something ought to be done along the lines as set forth in this bill?

Mr. BUSBY. I want to answer that question. It seems to me as long as we are going to extend the right of this copyright holding society-the C. A. P.-to go into every nook and corner of society to collect revenue the subject of copyright law ought to be overhauled and gone into from every angle in order to protect the public against the situations that are arising out of the new inventions.

Mr. PURNELL. But the Committee on Patents has had hearings for five or six years, and apparently we have not been able to work out an agreement with everybody. How much longer do you think you ought to go before settling the matter?

Mr. BUSBY. I have not been on the committee long and am not familiar with what has gone before. This bill is one-sided, as I gather from the hearings; that is, it is all in favor of the Society of the Composers, Authors, and Publishers, composed principally of music publishers of the country, and it is the music publishers who are clamoring for this bill for mercenary reasons.

If you will permit me to divert, I will say this.

Perhaps you will remember a few years ago the song called "Dardanella." The author of that song sold it for $100 to the music publishers. It was then offered by the music publisher, who had become the owner of the copyright in the way most of these songs are, to the Victor Record graphophone people. I asked the Victor Record people how much they paid the music publisher in royalties, and they said, "We paid those people $25,000-royalties at 2 cents per record." This was $100 to the composer, the brains of the transaction, and $25,000 to the music publisher, the manipulator of the deal. The author received only the $100, yet he produced the song hit.

Is this legislation necessary? Are they being discriminated against and are their property rights taken? It seems to me the music publishers have not shown a necessity, as contemplated by the Constitution, for this legislation.

There is another song I want to refer to. "Girl of My Dreams" was published by an independent music publishing company that did not belong to this group of C. A. P. The man who wrote that song sold it for $25 outright to the music publisher and that is all the author ever got.

It was taken up, I understand, originally, by the Victor people, and they paid the music publishing house that bought the song from the author who wrote it more than $7,000 in royalties, at 2 cents per record. What do they want? What are they entitled to? What necessity is there for this bill taking of the 2-cent limit on records when it was a part of the original condition in 1909 to get

the law?

Let us go back to the idea of bargaining. You by the copyright law create a monopoly, and the composers, authors, and publishers of music form a monopoly among themselves, so that 80 per cent of them act through a single individual and you have a monopoly on a monopoly. How could you say this is a field of "free trade," after you have tied the public hand and foot with laws and then permitted a combine against the public to dictate all conditions to

the public? You leave no proper scope for free trade or competition. It is just a question of this monopoly of music publishers saying "take it at this price or let it alone, and shut up.”

You say we give them that as is their right? It is their right if we are going to have the public, the manufacturers, and everybody else submit to it by legislation enacted by us in the name of "promoting science and the useful arts."

If you are going this far and give the music publishers a monopoly so they can collect 2 cents per record or any other amount from the makers of music records and rolls on each part manufactured, then we ought to amend the present law, which say "The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit" by striking out the last words of this section of law "except in case of public performance for profit." Under this exception, the music publishers' monopoly is making extravagant claims in collecting money in almost every conceivable way from the public and also because we give them that advantage in addition to the rights we give the holder of a patent.

If we are going so far, why not say that every piece of music that is broadcast into your home and received on your radio receiving set shall be paid for by you then you pay them for the reception of that music? It is no more unreasonable than to place the right of recovery by the copyright holder on the grounds you have in this bill. You ought, in good conscience, if you have a 7-tube receiving set, pay for the music you get for nothing in your home; ought you not? If you are going to follow this idea to the nth degree, that is where you are going to get next, into all the homes of the land where are radio receiving sets, and then tax those homes because they are receiving copyrighted music for which they have not paid the copyright holder.

Mr. BANKHEAD. Do you advocate the proposition that when they pay a royalty for a record they ought to be prohibited by law from having to pay any further, when the record is used for public use?

Mr. BUSBY. Yes. They are prohibited by the common law, if we do not give them a statutory right. That is the trouble; we have given them a statutory right.

Mr. BANKHEAD. Do the courts construe the law to the effect that they are within their rights in claiming that?

Mr. BUSBY. I should say they do. Here is this case of Whitmark versus the Pastime Amusement Co., where a little girl, who never saw the written music, in a small movie show played by ear the chorus to "Kiss Me Again," when they were showing on the screen the play "Ladies Must Live."

The music publisher sued this man, and the minimum amount of damage that we provided for by section 25, Laws of 1909, is $250, with the attorney's fee and the court costs. It cost that man a great deal of money to pay the $250, court cost, and $100 attorney's fee allowed by the court.

I am saying that you ought to consider the general provisions of the copyright law and not merely this bill.

Mr. O'CONNOR. That was a reproduction of sheet music?

Mr. BUSBY. Yes; but she had never seen the music.

Mr. O'CONNOR. That was on the theory that she had used the sheet music. They have always had their right to collect for the use of the composition.

Mr. BUSBY. No; they have not, under similar circumstances.
Mr. O'CONNOR. Since when?

Mr. BUSBY. I am sure the statute of 1909 gave them that right for the first time. If they sold the music and people bought it, they were entitled to use it, but not after we tied their hands.

Mr. O'CONNOR. I would like to ask you this question, because the example you gave of the Whitmark case is not what you have been talking about.

You say when the composer gives his rights to the mechanical reproducer to make the record, he gets paid by the mechanical reproducer. Then, if the record is used in a public performance, he collects again for the use of that record; is that correct?

Mr. BUSBY. Yes; he collects, and then he says he is entitled to collect. He says, "I will take you to court"; and they usually come across, because the law provides that the minimum amount of damages is $250, plus the attorney's fees and the court costs, if, as in this case, it only takes 27 seconds to render that piece of music.

Mr. GARRETT. That is the publisher who gets that; that is not the mechanical-device man?

Mr. BUSBY. No; the mechanical-device man just pays this publisher, who I will say that nine times out of ten is the owner of the copyright.

I have not the time to read to you Exhibit A, that is appended to this court decision reported in Two hundred and ninety-eighth Federal Reporter, page 470, the case of Whitmark v. the Pastime Amusement Co., but in this appendix, marked "Exhibit A," to that decision is the most all-inclusive, impelling, and complete monopoly agreement that I have ever seen anywhere in any legal document. That is the basis for the composers, the authors, and the publishers doing business as the Performing Rights Society through a single head, Mr. Gene Buck, who represents it in conferring with the makers of music records and music rolls as well as in all other capacities. He seems to think just now from the hearings on this legislation that he has the proper ammunition to shoot the bill through now, and he is not going to worry any longer with us who are trying to protect the public.

I want to go back to the people who make the records. It happens at this time that the makers of music records who are sending out this propaganda are the only fellows who are speaking for the public and in the interest of the public.

Mr. PURNELL. That is true in regard to the tariff and other bills, is it not? The public is never represented here.

Mr. BUSBY. I do not care to be diverted to that, because I am not a member of the Committee on Ways and Means, but you know that if the record price goes up it will go to the public and not to the manufacturer. If 2 cents remains the price on the record, it will remain that on the price to the public.

My position on this bill is that the proposed legislation does not cover the field in any proper sense. It is half-baked in the manner in which it is drawn. It is full of deficiencies and uncertainties and superfluous language and inaccuracies and leaves the public abso

« iepriekšējāTurpināt »