at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any further use than what should b derived under it during his 14 years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries.

A provision, therefore, that should withhold from an inventor the privilege of an exclusive right, unless he should, as early as he should allow the public use, put the public in possession of his secret, and commence the running of th period, that should limit that right, would not be deemed unreasonable. It might be expected to find a place in a wise prospective legislation on such a subject. If it was already found in the jurisprudence of the mother country, and had not been considered inconvenient there, it would not be unnatural that it should find a place in our own.

From the above statements, we deduce the following conclusions: (a) That the purpose of granting the exclusive right by the Constitution was to protect the author or inventor from the danger of competition.

(6) That the effect of the granting of the exclusive right was to exclude the public.from any use or enjoyment of the copyrighted work or patented article, during the limited time prescribed by Congress; that for the privilege of the exclusive right granted to him, the copyright owner or patentee must make full and free disclosure of his copyrighted or patented work at the earliest possible time, so the statutory period of protection should commence to run as early as possible, and to the end that the public may have the full benefit thereof after the expiration of the term of the monopoly.

(c) That this is the consideration demanded by the public, for the protection during the time mentioned in the patent or copyright. In Lithographic Co. v. Sarony, 111 U. S. 53, at page 57, the Supreme Court says:

The construction placed upon the Constitution by the first (copyright) act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.

*

*

* * The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the "author or authors of any book or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing and vending the same for the period of 14 years from the recording of the title thereof in the clerk's office, as afterwards directed." Stat. 124; 1. * * * The second section of an act to amend this act, approved April 29, 1802, 2 Stat. 171, enacts that from the 1st day of January thereafter, 'he who shall invent and design * * any historical or other print, or prints, shall have the same exclusive right, for the term of 14 years from the recording the title thereof, as prescribed by law."

66

As inventions new were developed and new reproductive processes introduced, Congress extended the copyright control of the author to embrace such modern reproductive processes, and conferred upon the author the exclusive right to utilize his work in every case, with the exception of mechanical musical devices described in the act of 1909.

In 1831, the acts of 1790 and 1802 were repealed, and the law relating to copyright was embodied in one statute.

In December, 1830, Mr. Ellsworth from the Committee on the Judiciary, made to Congress a report in the following language (Drone on Copyright, p. 90):

Your committee believe that the just claims of authors require from our legislation a protection not less than what is proposed in the bill reported. Upon the first principles of proprietorship in property, an author has an exclusive and perpetual right, in preference to any others, to the fruits of his labor. Though the nature of literary property is peculiar, it is not the less real and valuable. If labor and effort in producing what before was not possessed or known will give title, then the literary man has title perfect and absolute, and should have his reward. He writes and he labors as assiduously as does the mechanic or husbandman. The scholar who secludes himself and waste his life and often his property to enlighten the world has the best rights to the profits of those labors; the planter, the mechanic, the professional man, can not prefer a better to what is admitted to be his own. Reports of Committee, 21st Cong., 2d sess. (1830-31). Rep. No. 3.

That report is important because it indicates the understanding of the committees of the nature and character of copyright.

Henry Clay's report, made by a select committee consisting of Clay, Preston, Buchanan, Webster, and Ewing, in favor of a national copyright, during the second session of the Twenty-fourth Congress, on February 16, 1837, submitted with Senate bill 223, correctly states the understanding of the principles of copyright that prevailed from the time of the adoption of the Constitution to his day. In that report, among other things, he says:

That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labors for the means of subsistence; and are frequently, from the nature of their pursuits, or from the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law.

Chancellor Kent defined the power of Congress under article 1, section 8:

The power given to Congress to promote the progress of science and useful arts is restricted for a limited time.

Showing again the thought that whatever Congress can do it can only do to the extent authorized by the Constitution.

First, the subject matter is "writings and discoveries"; the persons concerned are "authors and inventors." The object to be attainedto promote progress of science and useful arts. How to be attained— "by securing to authors and inventors the exclusive right to their respective writings and discoveries." Period of enjoyment " for a limited time." Unless you can find the authority for what is proposed here within the four corners of that clause, you can no more fix the price for radio broadcasting than you can fix the price for beef. The thought that I have just expressed was stated in Litho v. Sarony (111 U. S. 53). There, if you remember, the right of Congress to pass an act extending copyright to photographs was assailed upon the ground that a photograph was a product of the me

chanical arts and was not a "writing" within the meaning of the Constitution. The court said:

The constitutional question is not free from difficulty.

The eighth section of the first article of the Constitution is the great repository of the powers of Congress, and by the eighth clause of that section Congress is authorized

"To promote the progress of science and useful arts, by securing, for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The argument here is that a photograph is not a writing nor the production of an author. Under the acts of Congress designed to give effect to this section, the persons who are to be benefited are divided into two classes, authors and inventors. The monopoly which is granted to the former is called a copyright, that given to the latter letters patents, or, in the familiar language of the present day, patent rights.

We have, then, copyright and patent right, and it is the first of these under which plaintiff asserts a claim for relief.

It is insisted in argument, that a photograph being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author.

Then the court came to the conclusion that the photograph involved in the suit is an original work of art, the product of plaintiff's intellectual invention, of which the plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him exclusive right to use, publish, and sell (p. 60)

Here the Supreme Court expresses the intention of the Constitution. That intention was that Congress should secure to the author the exclusive right to use, publish, and sell. There can not be any gainsaying that. I can argue here for hours upon this proposition and cite case after case, authority after authority, running to the same effect. In this Sarony case, the court, in describing the necessary qualities which a work must have to include it in the word writing," holds that the work must come within the purpose of the Constitution in securing its exclusive use or sale to its author (p. 58).

66

Now, in the face of that, how can you argue that Congress has the right to say to an inventor or an author, "If you want the right to exclude others from using that which you created, you must make no use of it yourself, otherwise any broadcaster can use it for a price that we fix in accordance with a schedule prepared by the American Telephone & Telegraph Co."

A great deal of reliance has been placed here upon the report of the Committee on Patents on the act of 1909. That report has been tossed around this room by everybody who has spoken for the bill. Oh, there is the act of 1909, they exclaim triumphantly, and there is the report of the committee accompanying that act; and the report of this committee declares that Congress is merely concerned with giving some bonus to authors and inventors. Where this bonus idea comes from I do not know. I have read every decision upon the subject: I have gone into this matter most exhaustively from the beginning of copyright; I have examined every case. and I have yet to find that a copyright owner is placed in the same category as a soldier who has made an heroic sacrifice for his country. The soldier gets a bonus. The author gets no bonus. All he gets is that which the Constitution says he is to get, the right to exclude every

body else from his work for a limited period, for surrendering his common-law rights in his absolute property, and yielding up all claim to his property at the expiration of the copyright period.

That law of 1909 was sought to be justified by some language appearing in the case of Wheaton v. Peters. But that case did not involve a compulsory license or price-fixing statute.

That, if you remember, was a very famous case which decided that there was no common law right in the United States and that copyright is a creature of the statute.

From the principles thus laid down in Wheaton v. Peters, 8 Pet. 654, they proceed to argue that Congress has the right, in enacting a copyright statute, to impose any condition on which the copyright shall be enjoyed.

The paragraph from that decision which the committee in 1909 relied upon specifically for its authority to impose upon musical authors a compulsory license as a condition for extending the copyright control to perforated rolls and sound records, is found on page 663:

No one can deny that when the legislature are about to vest an exclusive right in an author or in an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed; and that no one can avail himself of such right who does not consent to comply with the requisitions of the law.

This principle is familiar, as it regards patent rights; and it is the same in relation to the copyright of a book. The language is limited to the creation of " an exclusive right "; then and only then can the legislature prescribe the conditions on which such exclusive right may be enjoyed. If you will follow the text you will see that the conditions here referred to relate merely to the formalities for securing copyright; in other words, the filing of the title of the work, the deposit of a copy of the work in the specified public office or library, the affixing of a notice of copyright upon the work, and doing all those things necessary to vest in the people of the United States at the expiration of the period of enjoyment the full title to the work.

This thought is expressed on page 665 as follows:

All the conditions are important; the law requires them to be performed; and, consequently, their performance is essential to a perfect title. On the performance of a part of them the right vests; and this was essential to its portection under the statute.

What the court said in better language than we can formulate and what it intended to convey thereby, was that Congress in granting the limited monopoly to the author could prescribe the necessary formalities which the author would have to comply with as a condition precedent to the vesting in him of the exclusive right to the use of his work.

This case is no authority for the proposition that Congress can attach to a copyright grant a compulsory license feature.

On the contrary, the holding of the case is that Congress in vesting the exclusive right may impose conditions. A compulsory license is the antithesis of the exclusive right.

All that the government grants under a copyright is the power to exclude others from making any profitable use of the work during the term of the copyright.

An erroneous impression prevails that Congress, by the granting a copyright, creates a property right in the author's work. It does nothing of the kind. It merely excludes others from making any profitable use of the work during the term prescribed by the

statute.

The fullest and most satisfactory discussion of the subject is found in Continental Paper Bag Co. v. Eastern Paper Bag Co. (210 U. S. 405). In that case it was sought to defeat a suit by a patent owner for infringement of a patent on the ground that he was not entitled to ask a court of equity to aid him in protecting the grant of the patent to him by the Government, because he had failed and neglected ever to use the patent himself or to allow anybody else to do so, and therefore had not rendered to the public the benefit and consideration for which the patent was granted. The court held that the benefit which the Government intended to secure was not the making or use of the patent for the benefit of the public during the 17 years of the grant, except as the patentee might voluntarily confer it from motives of gain, but only the benefit of its public use after the grant expired.

The court held that the Government did not confer on the patentee the right himself to make, use, or vend his own invention; that such right was a right under the common law not arising under the Federal patent laws and not within the grant of power to Congress to enact such laws; that in its essence all that the Government conferred by the patent was the right to exclude others from making, using, or vending his invention.

In other words, the Government does not take into consideration the rights of the people or the interest of the public during the term of the patent or copyright. It does not bargain for any right during the term of the monopoly. What it bargains for is its absolute right, the right to the free enjoyment of the literary work after the period of copyright is over. You can exclude everybody from the use or enjoyment of the work during the statutory period. You can do with it as you like during the term of the copyright, but after the term expires it falls in the domain of the people of the United States. Chief Justice Taft reaffirms these principles in Crown Co. v. Nye (261 U. S. 36), as follows:

It is the fact that the patentee has invented or discovered something useful and thus has the common law right to make, use, and vend it himself which induces the Government to clothe him with power to exclude everyone else from making, using, or vending it. In other words, the patent confers on such common law right the incident of exclusive enjoyment and it is a common law right with this incident, which a patentee or an assignee must have. That is the implication of the descriptive words of the grant exclusive right to make, use, and vend the invention."

"the

The Government has not made the discovery. The Government has nothing to do with the invention. It is there and so long as the inventor can keep it a secret he can use it to his heart's content. Congress can not come in and say, "We will take it away from you, or make you sell it at a certain price." Th Government had nothing to do with its creation.

Continuing, Justice Taft points out the nature of the grant by Congress (p. 36):