of rolls, the question next should be, Should it be possible for the composer, by copyrighting now his perforated roll or taking any steps under this statute, to have the right from this time on to control the cutting of music which has heretofore been cut? That strikes one at once with a little semblance of justice; but the injustice of that proposition consists in this: That for every piece of music which has been cut by a manufacturer, that has been lawfully cut under the present decisions, where he has a perfect right to do it, he has been obliged to expend from $10 to $25. He has that much investment lying under this music that is out in the market. Now, if it is not reasonable that all this outstanding music, lawfully made and lawfully sold, should become outlawed by a new act, is it reasonable that all this provision for making that investment, which amounts to millions of dollars, in the preparation for cutting this music, should become outlawed immediately, so that no more compensation can come to this manufacturer who has this $25 or this $10 invested in each piece, and say to him: "You can not use that music; you can not cut any more of that music?" Is it reasonable that that investment should be killed-that that investment, law fully made, in a lawful product, should become immediately unlawful and waste paper? Mr. WEBB. What section has that effect? Mr. BURTON. I do not say the bill would certainly have that effect. It is entirely uncertain, but it seems to me the bill would have the effect, as I read it, of permitting the composer to claim the rights except as to outstanding music that is, the right from this time on to cut it. The bill should be clear. I have had only a very short time to examine it, and a provision may possibly lurk somewhere under which the continued production of perforated rolls now being produced would be permitted, but I think not. I think it is possible, or might be held possible, under the bill for the composer to claim the rights from this time on to cut the music. Mr. CURRIER. Oh, very clearly so; he can sell that right. Mr. CAMPBELL. Where the copyright has run out? Mr. CURRIER. No; for copyrights taken out after the passage of this bill. Mr. BURTON. I am talking about the music that is now on the market, not the rolls, but the means of cutting them-whether the composer can, under this bill, acquire the right to stop the cutting from now on of that music. Mr. CURRIER. I do not think you need to take any time with that proposition. Mr. BURTON. If that is clear, I will pass it. It seems to me the bill gives it; but if you make it entirely clear that it does not Mr. CURRIER. It is not the purpose of the committee, I judge, to allow that. Your time has expired. Mr. BURTON. Then I will ask leave to file a complete brief suggesting changes. Mr. CURRIER. And I might say to you what has been said to others here that neither the Senate nor the House committee will take any action on this bill at this session. It will go over until next winter, and at any time before action is taken you can file any further brief or any further suggestions with the committee. Mr. BURTON. I thank the committee on behalf of the interests I represent. To the Senate and House Committees on Patents: Pursuant to the permission granted me at the conclusion of the few minutes' oral hearing with which I was favored before the joint meeting of your committees, I beg to submit herewith a brief and suggestions with respect to the amendments to Senate bill 6330 and House bill 19853, deemed proper and necessary in order to make the act contained in said bills properly protective of the rights and conservative of the interests arising out of and connected with the industries of automatic musical instruments and controlling devices-perforated rolls, talking-machine disks, and phonograph cylinders for the same. All of which is respectfully submitted. The following facts should be taken into consideration in making any amendment to the copyright law affecting automatic reproducing devices as well as perforated rolls for reproducing music, talking-machine disks, and phonograph cylinders for their respective purposes. 1. To the modern arts relating to automatic music-playing devices and automatic means for reproducing sound, such as talking machines and graphophones, authors and music composers have contributed not a single iota. These arts have been the result of the combined efforts of thousands of scientific, industrious, and artistic inventors. These inventors and the manufacturers cooperating with them by their capital and business skill and enterprise have created these entire arts and to them is due the entire benefit which the public has derived and is deriving from these arts. 2. Musical composers and song writers, notwithstanding their entire lack of participation in the creation and development of these arts, have derived already and are still deriving large pecuniary benefit from them. This is most clearly provable in respect to musical compositions. For any musical composition which has been largely reproduced by automatic players employing perforated roll controllers a largely increased demand immediately arises. The sale of the ordinary staff notation of any such composition experiences a notable stimulus immediately upon the production and sale of the perforated rolls for producing the composition automatically upon musical instruments. This fact is conclusively established by the record in the suit of Apollo v. WhiteSmith Music Publishing Company, lately determined in the United States circuit court of appeals in the eastern division of the southern district of New York. We are filing herewith a copy of the printed record of the defendant in that suit, having marked the pagesa containing the testimony upon this point, and also a copy of the brief on behalf of the defendant citing the facts as established by the record upon both sides to the effect that in the face of the testimony by wholesale and retail dealers in sheet music, that the sale of perforated rolls for such music largely and promptly increased the demand for the sheet music, there was offered not one word of testimony to the contrary, although in the control of the complainants and available as witnesses in their behalf-practically as cocomplainants or cobeneficiaries with them in the suit-were included nearly all the large publishers of and dealers in sheet music, whose records of sales would have established the facts one way or the other overwhelmingly, so that the absence of testimony from these sources must be taken as an admission of the fact as testified to by the few publishers who were accessible to the defendants. We assert, and challenge contradiction, that the experience and observation of the music trade during the past ten years, during which this art has grown from infancy to its present proportions, establishes the proposition, viz, that the sale of perforated rolls and other means for automatically reproducing musical compositions to the ear tends largely to increase the demand for the ordinary staff notation or other published form of the particular compositions which are thus reproduced. 3. The making of a perforated roll or equivalent device or appliance for reproducing to the ear a musical composition is not a mere mechanical process nor one involving mere mechanical skill. It is, on the contrary, an artistic process requiring musical taste and ability and affording opportunity for the exercise of the very highest musical taste and ability, conjoined with the most exact and delicate understanding of the mechanical principles and features of the mechanism with which the controller device perforated roll or the like—is designed to cooperate for reproducing a Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp. 100–101; Jansen, pp. 131-133. Pp. 29-34. the music to the ear. The art of the "arranger,' as he is termed, of a perforated roll brings into exercise an artistic sense and skill of as high a rank as that of the musical composer and requires, in addition thereto, an ability to understand accurately and minutely the intricate mechanism to which the device produced must correspond and with which it must cooperate. In the case of the talking-machine disk and phonograph cylinder, the contribution of the singer and player is even more obvious, as the essential and controlling element in the value of the devices which result and which are the distinct product of the art of the singer and player is a thing apart from the art of the composer. The producer of a perforated roll or of a talking machine disk or phonograph cylinder, therefore, is as much entitled to be considered an "author" in virtue of the production of such roll, disk, or cylinder, entirely apart from and subsequent to the composition of the music as is the painter by virtue of his sensitive appreciation of beauties of form and color in nature and his skill in reproducing them upon the canvas. The landscape painter does not create the nature scene, but he is not the less an artist because he depicts it only, instead of creating it from his imagination. Nor is he less entitled to a copyright upon his painting, because it is a more or less perfect reproduction to the eye of that which existed for the eye before he reproduced it, than if he had evolved the scene from his imagination and then depicted it to the eye by the same skill. The photographer who merely posed his subject is entitled to a copyright upon his photograph. He did not cast the features, nor shape the form, nor arrange the hair, nor devise the costume. He merely posed them all, and chose the position with respect to light and shadow, and adjusted the contrivances for affecting both. This was his art, and the photograph is the result; and it is his photograph for purposes of copyright. The "arranger" of the perforated roll is an artist of as high merit as the photographer, and in some respects of as high merit as the landscape painter. If there is to be secured or conferred upon anyone an exclusive right to the perforated roll, or to the talking-machine disk, or to the phonograph cylinder, for producing to the ear a particular composition, that right, in virtue of authorship, belongs to the arranger of the perforated roll and to the singer or player who produces the talkingmachine disk or the phonograph cylinder. That copyright may reasonably be granted to the producers of these devices for the devices themselves seems too obvious for argument, and that it should not be in the power of any composer whose composition is published and on the market to discriminate between different arrangers of perforated rolls or different singers or players, in respect to the right of making such records, respectively, and of selling or renting the same, seems also obvious justice. It would be no injustice, in view of the observed facts above stated that the composer derives benefit only and never injury from the sale of these automatic devices that he should have no rights in respect to them, except to be credited with the compositions by having them marked with the title which he has given them for market and with his name as composer. But in view of the possibility that there may be reciprocal advantage that the name and repute of the music and of its author may contribute to the sale of the reproducing devices—a royalty for the use of the title and name may reasonably be allowed to the composer. But the composer should not be recognized as having any right entitling him to prohibit anyone who desires to do so from making such automatic reproducing devices by employing either the art of the arranger of the perforated roll, or the voice of the singer, or the skill of the player on musical instruments. And the royalty should be uniform for all makers of each sort of device; that is, all makers of perforated rolls for a given composition should pay the same royalty to the composer for the use of his name and the title of his music, and all makers of vocalizing disks or cylinders should likewise pay the same royalty for a given composition. This right to royalty should be allowed, not in virtue of any domination or supposed domination of the original copyright over the act of reproduction, but solely in virtue of the natural right of the composer to have his name and the title which he has given to his music associated therewith, howsoever it is produced, and of the fact that presumably a commercial value attaches to such name and title, which will benefit the seller of the automatic reproducing device. This right of royalty should therefore not run to the proprietor of the original copyright as such, but to the composer as such. If the composer has sold his copyright the purchaser should not, by virtue of that purchase, acquire any interest in the royalty of the composer for the use of his name and the title of his music. Of course the composer could sell this royalty right, and if he chose to sell it with the copyright and to the same person he could do so, but it should not pass without express mention. It should not pass as incident or appertaining to the copyright. Such a provision would be precisely like the provision in the present statute with respect to translations. In the statute it is now provided, not that the copyright includes the right of translation, but that the author whose work has been copyrighted has the exclusive right of translation. He may sell his copyright, but such sale does not divest him of the monopoly of the translation nor vest such monopoly of translation in the assignee of his copyright. NOTE. This point is somewhat fully developed in brief of the defendants in WhiteSmith Music Publishing Company v. Apollo, copy of which brief is herewith furnished. (See p. 46 to 50, inclusive.) The position above stated and presented in brief, as above noted, was not controverted and was apparently fully conceded as a legal proposition, by counsel for the complainants in that suit. The ultimate propositions supported by the above contention in that suit were contested upon other grounds. Copy of complainants' brief upon this point will be furnished the committee later, with citation to the particular paragraphs sustaining the above statement. Outside of and as an exception to the general class of musical compositions to which the foregoing considerations are pertinent, there is a class more closely related to automatic reproducing devices and in respect to which the composer has a more vital interest, viz: Musical compositions not reproducible to the ear by a single human performer upon any instrument, but which can be produced by means of perforated rolls on an automatic instrument. The staff notations of such compositions have practically no market value, except in case they are arranged in the forms of orchestral scores, so as to be produced by a plurality of instruments simultaneously played by different performers. The number of copies of such orchestral scores which will be required is necessarily very limited, and the sale of such staff notations offers a very limited field from which the composer may derive a just compensation for his work. The only source of revenue to the composer of such works is in the sale of the only means of playing these, viz, the perforated rolls. It may be deemed proper and it will not be denied that it would be just that a composer of a musical composition of this class who causes it to be embodied in the form of perforated roll, and who can derive a revenue from it practically only in this form, should be considered in the light of both composer and arranger, and as entitled to obtain original and independent copyright of the perforated roll, so as to control the composition absolutely in this form. It is believed that it will not be difficult to frame a provision of the statute to do justice to this class of composition, and which shall not trench upon the natural equity of the perforated roll arranger for other musical compositions, or upon the natural right of the public to derive the use of the automatic reproducing devices upon ordinary musical compositions, without requiring the consent of or paying tribute to the composer. 66 4. As to duration of copyright.-The bill before your committees proposes a remarkable extension of the period of copyright beyond anything heretofore granted. This is believed to be contrary to sound public policy and of doubtful constitutionality. The Constitution expressly limits the power of Congress in respect to their copyright protection to granting such protection for limited periods." The term 66 limited can have only a relative meaning, and the obvious meaning is limited with respect to or in comparison with the period during which the public will have desire or use for the copyrighted work. It is contemplated, evidently, that in compensation for the protection which the statute gives the composer for a limited period the public shall derive the unqualified use and benefit of the work for a remaining period. If there is no remaining period, the consideration for the protection has failed. It needs no statistics to establish to the common knowledge of the committee that not one book in ten thousand has any commercial value fifty years after its publication. It will probably be safer to say that not one published work in a hundred thousand has any life after fifty years. If, therefore, the author is given the monop oly for fifty years, the public has nothing left to compensate it for that monopoly and protection. Not one work in a million endures so as to have any value after one hundred years. But the bill proposes, as to the great bulk of copyrightable matter, that the period of copyright shall be substantially one hundred years-fifty years after the death of the author. It is respectfully submitted that this transcends the intention of the constitutional limitation, and that the public would, by such an enactment, be deprived of substan tially all the compensation which the Constitution intended should be reserved to it in return for the copyright protection granted the author. Whether the constitutional limitation should or should not be so strictly applied, it seems beyond doubt that sound public policy forbids thus bartering away all the public benefit arising from the free right of publication after the expiration of copyright. There is a second objection to the particular form in which the bill gives this extended copyright term. There does not appear to be any logical relation between the copyright protection and the duration of the life of the author. The privilege or protection granted is in no respect personal, except as to the revenue which may be derived. There does not appear any reason why the work of a mature writer of 60, presumably capable of giving to the public compositions of peculiar value, especially if they relate to scientific or philosophical subjects, should receive less protection from his copyright than would be granted to a youth of 20, whose immature productions would obtain the protection of a presumably long life before him (during which he would often regret his immature publication). Furthermore, the particular form or provision of the bill with respect to joint authors (line 24, p. 14; line 26, p. 15), when corrected to cure the obvious error in the phraseology and express the doubtless intended meaning, opens the way most obviously for practical fraud upon the public. An aged author, by associating with himself in a nominal yet unimpeachably colorable way a youthful assistant, and obtaining copyright in their names as joint authors, will secure protection for his work concurrent with the life of the junior and fifty years thereafter, instead of concurrently with his own nearly ended life and subsequent fifty years. It is obvious that joint authorship will become exceedingly popular if this paragraph of the bill is retained; and by the expedient of triple or quadruple authorship the chances of a long period will be greatly increased. * * * NOTE.-The very obvious error above indicated-line 24, page 14, line 2, page 15—has probably received the attention of the committee. The sentence supplying the connection from the commencement of section 18 now reads: "That the copyright secured by this act shall endure in the case of joint authors, during their joint lives and for fifty years after the death of the last survivor of them." The gap which is left between the dates of death of the first and last dying of the joint authors is uncovered by the copyright under this form of statement. That is, the copyright would lapse upon the death of the first dying-the end of their joint livesand revive at the death of the last survivor. The correction is obvious. Make the sentence read: "In the case of joint authors, until the death of the last survivor of them and for fifty years thereafter." It is believed that the present term of copyright should not be disturbed unless to shorten it. Twenty-eight years, with a possible extension of fourteen, exceeds the actual life of a great majority of copyrighted publications and leaves the public nothing for its concession of temporary monopoly to the inventor; but it is, perhaps, a fair average, and at least it has caused no serious complaint upon either hand. An exception should, however, be made in respect to any protection which may be given to anyone, whether composer or arranger, with respect to the automatic reproducing devices-such as perforated rolls-associated so closely, as these devices necessarily are, with manufacture as distinguished from publications and with inventions as distinguished from literary or artistic works. The duration of the patents, whose owners must pay tribute to the holders of any form of copyright upon the perforated rolls, are granted only seventeen years' monopoly in which to derive all compensation for their inventions. The copyright protection, if any, granted in any form upon perforated rolls should not exceed the term of patents-seventeen years. 5. Verification of authorship and ownership should be required.-All our copyright laws hitherto have been unaccountably lax in respect to the requirements for making prima facie title to copyright by virtue of authorship or proprietorship. It has only been necessary, and the present bill only makes it necessary, that the applicant for registration under the copyright statute should state, without verification of any sort, that he claims as the author or proprietor, as the case may be. So singularly loose is the requirement that the applicant is not even required to declare that he is the author or proprietor, but only to state that he claims as author. How easily a fraudulently disposed claimant will satisfy his conscience in stating that he claims as the author, when he might hesitate to declare that he is, in fact, the author; and how much more easily one who conceives that he has a shadow of right to ownership will make the like statement that he claims as the proprietor when he would hesitate to declare that in fact he is the proprietor, is obvious with out comment |