including the word "accompanied," in lines 5 and 6, should be canceled, and the words "with the date of entry of the copyright" should be inserted.

The notice of copyright must be clear and in such usual words, not signs which hardly anyone will understand, as are intelligible to the public. I consider it highly important that the date of copyright, including the year, month, and day, should appear in the notice, and also the name of the person by whom the original entry is made in the copyright office. The indexes will be kept by these names, and any subsequent entry or transfer should always be indexed under such original names. These remarks apply also to sections 44 and 45 hereafter considered.

In line 10, after "some," the words "uncovered and" should be inserted.

In line 13, after "name," the words "as in the original entry of copyright" should be inserted.

Line 19, the word "its" should be changed to "the," and in line 20, after "following," the words "of each separate volume" should be inserted; and in line 24, after "accessible," the word "uncovered" should be inserted.

Page 11, line 3 should be stricken out or amended to cure its indefiniteness as to the meaning of the word "composite."

In line 4, the word "musical" should be changed to "musical-dramatic."

It

It has never been intended by the copyright law to use the word "performance," excepting of such works as are only useful when represented or "performed" in a dramatic sense. The word "dramatic" has not always seemed sufficiently broad, and the words "musical composition" have often been added to include operas, oratorios, and musical works that are not purely dramatic, and yet are partially so. is submitted that it has never been the intention of the law to make the mere singing of a song from copyrighted notes that have been paid for, or the playing of music, infringements of copyright, and it is believed that this section will carry out the full intent of the law if the word "dramatic" be coupled with the word "musical," as above indicated.

In view of the use of the word "performance" in other parts of this bill for the purpose of including the use of automatic mechanical devices, it should be made clear that the word "performance," in line 5, has nothing beyond its ordinary significance. I suggest that this can best be attained by striking out the word "performance," in line 5, and inserting the word "representation."

Section 15 should be amended by striking out the words "if, by reason" and the rest of line 11 and lines 12 and 13.

It is plain that these words in the bill leave an open door for free publication which brings a work within the public domain, and subsequent monopoly of the work upon a mere allegation of error. The Librarian has not the facilities or legal machinery to try such question of error, and it should be left to the courts to determine whether there has been an error or omission, and whether by reason thereof any condition precedent for a valid copyright has been left unperformed.

Page 12, line 13, the words "bulk of the" should be stricken out. These words are uncertain and would allow the proprietor to omit the notice from 49 per cent of the edition. This would clearly amount to insufficient notice to the public and could be made the instrument of fraud. Line 14 and the remainder of the section are entirely sufficient for the purpose without the words "bulk of the."

Section 17, line 22, the words "be extended to" should be canceled, and at the end of line 24 the words "such term beginning with the date of filing the request for the reservation of the copyright," should be inserted.

There appears to be no reason for granting more than the specific term, which the law will provide, in the case which section 17 is intended to cover.

Section 18 relates to the term of copyright.

The whole system provided in the Constitution is for the benefit of the public, the intent is to accumulate for the use of the public, matters of literature, art, and invention. The stimulus in the way of a reward given by the public in return for these matters is subsidiary to the main object. The reward consists in "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The objection to the term provided in the bill is that it is unconscionably long. It may easily amount to a hundred years or more, during which time the public will have paid tribute to the author for something which will be so old fashioned as to be useless to the public when the copyright has expired. The word "limited" in the Constitution shows that the framers of that instrument had in mind to secure for the public.certain benefits after the time had expired. To provide such a long copyright term as the authors seek to obtain in this bill would practically defeat the object of the said clause of the Constitution and the intention of its framers. I submit that it could only be considered for a moment on the ground that it is a matter of indifference to the public because the works so to be

protected are entirely useless in themselves. I do not think there is any sufficient reason for lengthening the term-twenty-eight years with an extension of fourteen years-provided by existing law.

In another respect this section is bad in making the length of the term dependent upon an event which is uncertain in advance, and of which no public accessible record may be made when it occurs; that is to say, the death of the author. I see no reason why a young author should have longer protection than an old author, and the provision would leave open to publishers a door of fraud by securing copyrights for the productions of old authors in the name of some younger person.

The objection to a long term especially applies to music which depends almost entirely upon fashion and taste, and these soon change and the music becomes useless to the public. In my opinin, purely musical productions should have a relatively short term of copyright, but I have not considered the subject sufficiently to be justified in fixing any precise number of years.

But as to all copyrights it is my conviction that the interest of the public unquestionably requires that they be granted for a definite term of years, and that, if an extension is provided, the extension should be for a fixed and definite time. It is only this which enables the public to know, upon reading a notice of the copyright, when the monopoly will terminate.

If for any reason it should seem wiser to make the term dependent in its length upon the death of an author, then the continuance of the copyright should depend upon definite evidence being filed in the copyright office showing positively the date of death.

At the end of section 18, page 15, line 8, after "name," the words "Provided, That in such published work the notice of copyright be given as required in this [act" should be inserted.

Section 19 should, in my opinion, be canceled. It is retroactive in its character. Definite contracts have been entered into between authors and the public with respect to matters already copyrighted, and it would impair the obligations of those contracts to provide any renewal or extension of such copyrights. It has already been agreed between such authors and the public at what time their copyrighted works shall pass into the public domain.

Recurring to lines 3 and 4 of page 15, I submit that they should be canceled, so that the copyright shall extend for a definite number of years after the date of original entry. There seems to be no sound reason for giving an author a longer copyright, longer by a year, if he makes his entry on the 2d of January, than another author will have who enters his copyright on the 30th of December preceding.

Section 21 should be canceled, as it gives, in effect, copyright privileges where the conditions precedent required by this act have not been performed.

Section 22, line 14, is too broadly worded for the benefit of the authors of this bill, and the word "reproduction" should be canceled and the words "copy or representation" should be inserted.

In lines 22 and 23 the words "such fraudulent" and the rest of the section should be canceled, and the words "copies which are infringements is hereby prohibited.” Section 23, paragraph (b), should be canceled and made to read:

(b) To pay to the copyright proprietor damages for the infringement."

As the paragraph now reads, it gives double damages. The proprietor should receive damages which will be judicially ascertained in the ordinary way, either by estimating the profits which the infringer has made, or by estimating the damages or loss which the proprietor has suffered. If there is no actual damage it should not be provided that $250 should be recovered, and if the damages are greater than $5,000 there is no sound reason for limiting them to the latter sum.

For the same reasons lines 18 to 24 on page 17, and lines 1 to 7 on page 18, should be canceled.

Paragraph (c) on page 18 should be amended by striking out the word "alleged”, in line 10, and inserting "shown to the satisfaction of the court."

Section 25 should be amended by inserting at the end of line 23 "and with intent to deprive the owner of the copyright of lawful profit."

The word "willfully" does not appear to make the section sufficiently clear, and it is submitted that an infringer should not be held guilty of a misdemeanor unless he have the intent specified in the suggested amendment.

After line 6 on page 19 the following words should be inserted:

"Provided, That any person who performs the alleged infringing acts under a mistake of fact or law shall not be deemed to be a willful infringer.'

The alleged infringer may have good reason to think that conditions precedent have not been performed and that no valid copyright exists; he may be under a mistake as to when the term expires; he may be of the opinion that what he has

produced is not a copy, and he may perform his alleged infringing acts under advice of counsel. It does not seem proper under such circumstances to hold him to be a willful infringer and guilty of a misdemeanor.

In line 14 of page 19, after "knowingly," the following words should be inserted: "and with fraudulent intent."

Page 20, line 9, before "publish," the following words should be inserted: "send notice of such seizure by registered mail to the person to whom the article seized is consigned or directed, and shall."

Section 27, line 24, after "first," there should be inserted the words "mailing or". Section 29, lines 6 and 7, the words "supposed to contain" should be canceled, and the words "which contains" should be inserted. It is unreasonable to permit a

postmaster to detain a package upon a mere supposition.

In line 9, before "mail," there should be inserted the word "registered." Page 24, lines 16 and 17, the words "not more than one copy at one time" should be canceled, and in line 17 the word "or" changed to "and."

At the end of section 32 the following should be inserted:

"Provided, That the owner of the right to perform any copyrighted work by means of any automatic mechanical device shall not have the remedy by injunction herein provided until the amount of fair and reasonable royalty for such use shall have been ascertained by express contract between the parties, or by judgment of a court, and shall be due and not paid.'

Section 35, line 8, the word “full” should be canceled; and in line 9, after "allowed," there should be inserted “according to the practice of law and equity.” In many cases it might be inequitable to allow costs, and the court should be left free to exercise its legal discretion.

Section 36, line 11, the word "common" should be inserted before the word "law." This section should be compared with section 2, and they should be consolidated, or preferably they should both be omitted as unnecessary and as being outside of the purview of this act.

Section 38, line 23, there should be inserted after the word "musical" the word "-dramatic."

Line 25, the word "make" should be canceled and there should be inserted the words "produce by."

It is evident that the right to make belongs to the patentee of the device.

Page 30, line 1, the words "ninety days" should be changed to "three months" as more convenient and as excluding any contention whether or not Sundays and holidays are included in the ninety days. The similar provision of the patent law reads "three months."

Section 44 should be amended by inserting after "assignment", in line 12, the words: "and index the same under the name of the person by whom the original entry of copyright was made."

Section 45 should be amended so that lines 21 to 23 shall read as follows: "signee shall in all cases give in the statutory notice of copyright prescribed by this act the name of the person by whom the original entry of the copyright was made."

Without this provision the public will be put to great inconvenience in finding the original entry on which the copyright depends. The copyright notice should be of a clear and specific character so as to cause the public as little inconvenience and uncertainty as possible.

Paragraph 52 should be amended by striking out "provided" and all thereafter to the end of the paragraph in lines 2 and 3 of page 33. This provision is altogether too broad and the courts should be left free to determine what are conditions precedent to a valid copyright and whether there has been any breach of them.

Section 54 should be amended by striking out the words "the date of the" and inserting that the affidavit states the dates of;" and in line 20 cancel the words "as stated n the said affidavit," and insert the words "which dates shall be given in the certificate."

Section 55 provides for the dest.uction of card catalogues. The wisdom of this provision is very doubtful. A single card catalogue for each class of copyright work would save an immense amount of time and error to the public, and to the Librarian in making searches. Instead of periodically destroying card catalogues, they should be added to and preserved. As soon as they are destroyed, instead of being able to make one examination of one part of the card catalogue, the public will be compelled to examine a great number of periodically made printed indexes. I therefore suggest that the words "and thereupon", to and including the word "intervals," lines 9 to 12 of page 34, be canceled.

As to the destruction of articles provided for in section 59, I suggest that the section be amended by inserting in line 10 of page 36, after the word “provided," the words "and with the authorization of the Committees on l'atents of the Senate and of the House of Representatives."

Section 63 should be amended by striking out the words "sold or placed on" in line 7, and by inserting "made public, or sold publicly or privately, or placed on public."

་

As to section 64, I have to suggest that the present bill is supposed to be what may be termed a codification of the copyright law; if so, section 4966 of the Revised Statutes has no proper place outside of this bill. If there is anything desirable in the section it should be embodied in the bill at the proper place, and in doing so it should be made plain that the word "musical" where it first occurs in section 4966 means "musical-dramatic," meaning thereby a composition which is dependent upon representation or performance in the dramatic sense.

I do not believe that the people of this country are aware of what the musical composers and publishers are attempting to do in the way of securing monopolies. If the public were aware that these persons, after having secured copyrights giving them the exclusive right of copying and publishing music for sale, and after having sold the copies of such music are attempting to secure laws by which they may impose further taxes upon the public for the use of such music by singing or playing, and are seeking to provide fines and terms of imprisonment for those members of the public who do not pay the additional tax, there will be such a storm of protests before your committees as could not be disregarded.

Section 4966 of the Revised Statutes should be repealed altogether, and so far as its provisions appear in this bill they should be limited to musical-dramatic compositions, and the provisions for damages other than actual damages and for imprisonment should be absolutely eliminated.

Very respectfully,

H. N. Low.

The ACTING CHAIRMAN. Now we will hear the gentleman who represents the talking machines.

STATEMENT OF S. T. CAMERON, ESQ., REPRESENTING THE AMERICAN GRAPHOPHONE COMPANY, OF NEW YORK CITY.

Mr. CAMERON. Gentlemen, the first objection we have to the bill is, in our mind, the most serious one, and one which has been several times touched upon heretofore, so that I shall not attempt to go into any very great detail in discussing it here, but shall simply call attention to the fact that we object to it, and point out to you why, in connection with our particular business, it is especially important.

If you will turn to section 4 you will find that it reads:

That the works for which copyright may be secured under this act shall include all the works of an author.

Our position is that this is in direct contravention of the Constitution. If you will substitute in that clause the word used by the Constitution, and say that the works for which copyright may be secured under this act shall include all the "writings" of an author, then we do not object to that section.

Now, if you will take certain other sections of this bill, with that change made in section 4. and attempt to read them, particularly where the word "reproduce" occurs, or the word "reproductions occurs, you will see the importance of it to us.

Take, for example, section 3, immediately above:

That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof.

If you read that word "reproductions" with the word "works" in section 4 changed to "writings," reproduction means a very different thing.

If you will turn to section 18, on page 14, subclause b, you will find this language:

Any arrangement or reproduction in some new form of a musical composition.

Mr. CHANEY. What do you understand the word "works" to mean in section 4?

Mr. CAMERON. It may mean anything that is reduced to writing, or that is not reduced to writing. It may be an oral speech that is absolutely wafted upon the winds of the air and never gets into permanent form. In proof of that we go to section 5, line 20: “Ôral lectures, sermons, addresses."

The talking-machine art stands in a somewhat different position from that of the perforated music roll. You take a sheet of music and you have Sousa's or any other band play that music into the horn of an instrument, a patented apparatus. That machine engraves lines corresponding to what? To the sound waves produced by the band or the voice of the performer on the wax or other tablet.

Now, if you make that word "works" read "writings," as I understand, as the Supreme Court has interpreted the word "writings," it means this. in its broadest signification: That the idea of the author has been recorded in come tangible form, in such a way that another, through the eye, may have the idea of the author impressed upon his brain. That may be a painting; it may be the work of an artist. I think the Supreme Court has included a painting under that term because of that very fact, that the idea of the artist was recorded in some tangible form and, through the eye of the beholder, the idea of the artist was conveyed to the brain of the beholder. That is what a writing is, as I understand it, within the meaning of the Constitution.

Mr. CHANEY. The effect of your argument is, then, to limit the word to something that can be read by anybody? Mr. CAMERON. Not necessarily by anybody.

Mr. CURRIER. But by somebody?

Mr. CAMERON. Yes. I can not read Sanskrit.

Mr. CHANEY. I mean to say, that can be read by persons understanding the same language?

Mr. CAMERON. Yes; something that is capable of conveying to the reader, if you may call him such, the idea of the author.

Mr. CHANEY. And in that respect it would cut out the music-roll proposition altogether?

Mr. CAMERON. As my predecessor has told you, there is a dispute in regard to that, and I am not qualified to state. As far as I have been able to analyze the evidence, the preponderance is against the idea that the music roll can be read. But I do know this: There is a graphophone record of the disk form [exhibiting record to the committee]. There is a graphophone record of the cylinder form [exhibiting record]. I defy anyone-I defy Mr. Sousa to read that and tell whether it is one of his marches or whether it is a speech of a Member of Congress. [Laughter.]

Mr. CHANEY. They are often very much alike. [Laughter.]
Mr. CAMERON. They are both musical. [Laughter.]

Mr. McGAVIN. They are alike in volume of sound. [Laughter.] Mr. CAMERON. I am not making this statement theoretically nor as a lawyer. I make it as an expert in this particular art. I have spent months and months of time with the microscope myself striving to do that very thing, and I know it can not be done.

Now, let us go one step further. What is it that makes that graphophonic record valuable? I can take Mr. Sousa's score and I can select