"Q. 4. Can you give, from the indications so far in this year, the approximate rate of increase?-A. I should say it would be at least as much as last year, which was approximately 13 per cent.

"Q. 5. What is the total increase in attendance from the first year of which you have stated the figures, to the present time?-A. 75.3 per cent; that is, up to September, 1902.

66

'No cross-examination."

"Mr. WILLIAM MCKINLEY, a witness called on behalf of defendant, being duly sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.-A. William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music publisher.

"Q. 6. During the period, say, for the past three years, during which the manufacture and sale of these automatic players has been most rapidly increasing, what has been the fact with regard to the sales of sheet music, as to growth or diminution?-A. My business has greatly increased.

“Q. 7. If you have made any examination with regard to the compositions which have been cut in perforated rolls and used in automatic players by the different companies making such players, as to the sales which have been made of these pieces in sheet-music form during the period, say of the last three or four years, or since the time when they were cut in perforated rolls, will you state how the sales of such pieces have run? Have they increased or decreased during those years?-A. My business has very greatly increased in certain pieces that I know are issued in the form of a perforated roll.

"Q. 8. Have you in mind-if so, you may state as near as you recall-the rate of increase of any number of those which you have looked up and remember, giving their titles, if you recall them; and, if not, in general?-A. The sales of some of the pieces have doubled within the last two years-double what they were for the four years previous. I have traced up about 20 pieces of that sort to get these figures from which I stated the comparison above. I know when I desire to get new music for my family I call on the operator or performer of some of the stores that handle the music rolls. They often give me a list of the pieces. I usually purchase that. I have a list in my pocket of perhaps at least 20 pieces that I have been recommended to purchase. They have been recommended to me by one of the young men who has charge of that department-music rolls-in one of the stores; pieces I had never heard before.

"Q. 9. I understand you mean by your last statement that the pieces that you are recommended to purchase are so recommended by persons who have opportunity to hear them played by means of the perforated rolls?--A. Yes, sir.

"No cross-examination."

"WALTER LUTZ, witness, called on behalf of defendant, being duly sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.-A. Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.; salesman with H. B. McCoy in the music business, Chicago.

"Q. 2. How long have you been employed as music salesman?-A. Sixteen years. "Q. 3. From your experience as a salesman of sheet music, have you had any opportunity or occasion to judge what effect, if any, the introduction and increasing use of the piano players and other automatic instruments of this class has upon the demand for and sale of the sheet music of the same compositions? A. Yes; I have had people come in the store and ask for music which they had heard from the various players.

"No cross-examination."

I wish to call the committee's attention to the fact that the above testimony was taken to prove the opinions expressed by two witnesses for the plaintiffs were in error when they stated as their opinion that the mechanical player was detrimental to the sale of sheet music. Note the lawyers for the White Smith Music Publishing Company did not dispute the facts by not cross-examining these witnesses. The plaintiff is a big music publishing house and influential members of the Music Publishers' Association, with all the evidence and aid their association could lend, could not and did not attack these undisputable facts. It is a coincident worthy of your close attention that W. M. Bacon, a partner in the plaintiff's firm in this case and

also of the copyright committee of the Music Publishers' Association, who was leader of the prosecuting forces and signally failed to prove that this industry did other than to improve the sale of music, now comes to your committee with a copyright measure framed by his associate on the copyright committee of his association. Mr. G. W. Furniss, who is chairman, presented it and had it drafted in at the first conference, at which they both were present, and they were at every other conference to guard their conspiracy; conspiracy I say, because Mr. Bacon's firm has a contract (and his lawyers had to so stipulate), identical to the contract filed with your committee, between a publisher and the Aeolian Company. Read the contract; they have conspired against the composer and against the public for an undue personal gain, grafted what they wanted in their copyright measure, and now come to you gentlemen with it under the guise that the composer is being robbed of his dues by automatic devices. I submit it is a prima facie case of the principals to this contract not only planning to sweat the composer, but to hold up the public. It is a conspiracy in which the copyright office has aided them, possibly innocently, and they have asked your assistance, the public funds paying the expenses, the same public they want to get under their grasp. I can prove every word of this at any time. Is it not time Uncle Sam should arouse?

The public. The public side of this question is an important one. They have purchased in good faith instruments and self-playing devices and invested their money on the reasonable assurance of being able to continue undisturbed in these rights, and, by their patronage, have helped develop one of the foremost industries of this country and must be permitted to continue to buy controllers from the different manufacturers of their instruments. The public's spending power in this industry, being the foundation of this great and prosperous industry and the foundation on which compensation is now sought by copyright legislation for the composer, it is obvious that it must not be impaired at this late date by any measure calculated to give either the composer or his publishers legislation that will place either of them in a position to dominate this extensive industry and interests, and the public.

PERTINENT POINTS OF FACT.

This bill, H. R. 19853, as presented, is an iniquitous measure, framed not by the "poor composer" nor by the public interested, but by banded, bonded interests, which have conspired together for special privileges and greed and have had the audacity to submit it to Congress for its seal of approval. There is no secret now about this. The Librarian's records show, as also his admissions, that the interests I have enumerated in this brief were never notified of intended proceedings and never invited, although these uninvited interests are the very ones bartered in in the bill. The conferees at the conference consisted of the Book Publishers' Association, the Music Publishers' Association, etc. The two mentioned could hardly represent the authors and composers. Have they any credentials to this effect? The facts are, they represent copyrights they own and for which they seek further favorable concessions, out of which the exploited beneficiaries, the composers, would get nothing.

It has been maintained that mechanical players tend to discourage learning and reduce the sale of copyright music, but all the evidence taken on this subject proves the contrary is the case, and it was never questioned, even by counsel representing the publishers, who now seek special privileges. The publishers can not prove that they have paid an average of 1 per cent on copyright music they have published, nor the composers that they have earned an average of 1 per cent on their copyrights, in an industrial field of their own, yet they ask legislation giving them a dominating interest in an industry that other brains and money have created. Any amendment to this measure placing all interests on an equitable footing will be fought by its advocates, showing their corrupt intentions. This industry has been hampered for past years by threats of the mentioned combinations, and Čongress in any new bill should clearly define whether this mechanical matter is or is not included in the amendment. To end this matter once and for all, I am in favor of giving the composers (not the proprietor or owner of a copyright) the specific right to copyright his composition as applied to mechanical reproductions, and to collect reasonable royalties from manufacturers who may wish to use it, leaving it to a court of equity to determine what a reasonable equity would be, if such a measure is considered advisable. I should urge that, as this provision will apply solely to mechanical reproductions and receive its benefits therefrom, the term of this copyright should, in all equity, take the life of a patent with which it associates.

The following parallel ethical equities with the case of the composer might well be considered by the committee:

The architect, the man of brains, who conceives a wonderful conception of a piece of architecture or arrangement of a building, how can he prevent anyone else from duplicating this result or building it, which is the creation of his conception and work? A man discovers a treatment for some disease; others use it and apply it. A surgeon discovers a new form of operation; the others use it. A business man, by dint of his brain, figures out a great system for running his business, which makes it immensely profitable; his fellow-beings adopt it and don't pay him a cent. There are hundreds of parallel cases. Gentlemen, if it had not been for this gigantic conspiracy you would not have heard of the composer's woes.

This amendment has been fathered throughout by publishers, associations, and rings. They have exploited the composers' interests when they do not represent them, but, instead, their own selfish interests, which have been safeguarded in advance by contract.

Any legislation in favor of the oppressed composer should be so worded and framed as to not place him any further under the power of these combinations.

I shall be pleased, at any time, to prove to your honorable committee any statements made in this brief. F. W. HEDGELAND,

Representing Inventors, Manufacturers, Composers, and the Public, 1535 West Monroe street, Chicago, Ill.

STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL.

The CHAIRMAN. Whom do you represent?

Mr. BURTON. I speak for the manufacturers of the perforated rolls and automatic instruments.

The CHAIRMAN. How much time do you wish?

Mr. BURTON. I do not know how much time the committee has at its disposal nor what has transpired. It may appear that some of the points on which I wish to speak have already been handled, and if I am informed of that as I touch them I will not take up further time with them. As I say, I speak for the manufacturers of perforated rolls and automatic instruments.

The CHAIRMAN. We have had several speakers on that subject. Mr. BURTON. I understand that some points have been presented. The CHAIRMAN. Perhaps it would answer your purpose to be permitted to see what they have said and supply in writing any additions you may desire to make.

Mr. BURTON. I should be very glad to do so. I have been obliged to come here on the shortest possible notice. I left my desk with my mail half opened and jumped for a train upon a telegraphic request to be here, and have only had that much time to determine just the form in which I would like to present what I have to say. But I could give you in ten minutes, probably, the results which, it seems to me, the bill should accomplish, and if I touch on points that have already been discussed it will not be necessary to speak further on

them.

The CHAIRMAN. You may have ten minutes.

Mr. BURTON. But I would like to take advantage of the permission to file a full brief, giving my suggestions in detail as to the changes which, it seems to me, ought to be made in the bill.

Mr. CHANEY. Of course we want that, Mr. Burton. We think that will be more valuable to the committee than a speech.

Mr. BURTON. That is what I wanted to present, and if I had had time I should have been glad to have brought it in that form here.

I want to say first that it seems to me that while the bill follows the previous statutes in general in respect to copyrights, in the point I am going to speak of it ought to be amended. The practice in respect of patents is that the inventor shall verify his inventorship; he shall make oath that he believes himself to be the inventor, and any rights that pass to an assignee of the inventor must pass by an instrument which can be placed of record, signed by the inventor. But on the contrary, in the case of copyrights, in order to obtain a copyright the person claiming as the proprietor has merely to come in and make the claim as proprietor. He does not even have to verify that; and thereupon this bill expressly provides that he has a prima facie title to the copyright thus obtained.

It seems to me that that opens the door, as it always has-there is nothing new in this bill in that respect to a large amount of fraud upon the author or whoever is the one in whom the right originates. I think, therefore, that when the bill is made up it should require the author to verify his authorship. The bill should provide that the application for registration should be accompanied by an affidavit of authorship, and if application is made on behalf of an assignee as proprietor there should be an instrument conveying the right from the person who originates it, namely, the author, accompanying the petition. It seems to me that no hardship can arise from requiring this of an author and the assignee of an author, as it is required of an inventor and the assignee of an inventor.

The bill provides that there shall be a very careful prima facie case made by affidavit as to the printing and preparation of the mechanical material for publication in order to come within the statute. All that must be verified, but the fundamental authorship requisite goes upon a mere assertion, without even the verification of an oath of the party claiming. A change should be made in that respect.

Then, furthermore, with regard to the right respecting perforated rolls, in respect of which I am speaking particularly, I think the right should be entirely distinct and separate from the fundamental copyright, the copyright of the "work," using the term that has been used; that the right to the perforated roll or whatever other form of mechanical reproduction is claimed should be based upon the filing of a copy of that perforated roll; that the filing of the copy of the original work should carry the copyright in the common sense of the word, but if the author desires to claim copyright in a perforated roll on his work, for that purpose, if you please to put it so. he should take it for that purpose, and make his claim of copyright upon that roll. If he wishes it in any other form of reproduction. such as the disk of the talking machine, he should file that; and I think that right should be entirely separate from the right which might pass by an assignment of the copyright. The publisher who may acquire the copyright on the work from the author should not. without express conveyance (although the same person might acquire both) acquire the right to control the perforated roll or the phonograph record or the talking-machine disk; they should be entirely separate.

The bill does provide that these shall be regarded as separate estates; but in view of the decisions in which a similar phrase is used, it

is clear to me that that means that when the copyright has been obtained by the one proceeding provided for here, all these elements of it are separate estates which might be passed by separate assignments, but they would all be contained in the one copyright. I think that is wrong. I think that the right for the perforated roll should be acquired by filing a copy of that roll, in order that the public may know just exactly what is claimed, and whether it is claimed or not, and whether it is to be utilized.

Furthermore, I think that is a right that is naturally distinct from the other. It is a right that goes into manufacture instead of into publication. It is not to be done by the same people, naturally. The manufacturer, having a factory, makes the perforated roll. The publisher makes the books in an entirely different way. The two things are like different lines of trade. They are not naturally blended, either in use or sale. And therefore the composer or author, whichever it be, a work of words or of music, should be entitled to handle it entirely himself, apart from any right that he may have passed to the publisher by the transfer of his copyright.

I think I overheard as I came in a remark indicating that the next point I desire to press has already been suggested. In section 3 of the bill as I read it, as it stands now, there is a provision which would make it possible (and the committee will interrupt me if it has already been discussed, for in that event I should not wish to spend any time upon it) for the owners of copyrights of existing music to simply refile that music for copyright under this statute, and publish it with the mark that is required by this bill, and thereupon all that was contained in the previous copyright that is contained in that refiled and recopyrighted matter would come under this act, with all the privileges that this act gives over former copyright acts.

For example, this very matter of the right to mechanically reproduce would attach to a piece of music which had been previously copyrighted and of which a copy is now filed under this statute, and all the privileges of the bill except the longer term would attach to old copyrighted music which is simply refiled. So it would be possible to make the provisions of this act retroactive, so that the publishers, upon taking this proceeding, for 50 cents, with all their copyrighted music, would immediately cause the loss of the millions of dollars that have been invested in those rolls.

Mr. CURRIER. That has been discussed by several gentlemen, and objection taken to it-the same objection you are discussing now. Mr. BURTON. Very well; I will not talk of that.

Mr. CHANEY. His point is that he would let the copyright go to each one of these interests, as I understand it.

Mr. CURRIER. That is on another point, however. He is speaking about section 3 now, in reference to subsisting copyrights.

Mr. BURTON. In section 3 there is a provision which ought to be changed to prevent the subsisting copyright from carrying over these provisions into the new

Mr. CURRIER. That has been discussed by several gentlemen.

Mr. BURTON. Then if you are not going to make it retroactive—I judge the committee is clear upon that point-so as to bring under a copyright and make infringements all these outstanding millions

A CL-06-13.