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The income of the composer is based absolutely upon the income of the publisher. The prosperity of the publishers has been made possible through the popularization of their products by means of the automatic musical instruments. In so far as the public is concerned, the passage of this paragraph would mean the elimination of competition in the production of roll music. It has been and will be shown to you that the Æolian Company has in its possession contracts with practically every publisher of prominence in the United States, covering a term of thirty-five years, by which this company obtains full and absolute use of all musical compositions as soon as litigation or legislation secures to it the absolute control of the copyright. The possession of these contracts will enable the Æolian Company to stifle all competition. Eliminate competition in this field and immediately there enters that condition in industrial life which has militated so much against the prosperity, the progress, and the pleasures of the people during recent years.

That the manufacturers of the country are against this measure will be indicated to you clearly and forcefully during the coming week. Two strong organizations, comprising eighth-tenths of the invested capital in the industry, will appear before you protesting against this provision of the new law. But, above all financial and material arguments which you will be compelled to listen to, we wish to bring home to you the fact that the passage of paragraph (g) would mean taxation to the owner of every piano, phonograph, and music box in this country. The tendency in the industry at present is to decrease the cost of the appliances by which the use of these instruments is made possible—the music rolls, the talking machine records, and the music-box disks and cylinders. By making possible the establishment of a monopoly in this field, you tamper with one of the greatest enjoyments of the American people—the enjoyment of music. No provision of public policy, no subtle arguments based upon industrial development, no clamor for the protection of the rights of any particular class of men, can appeal so strongly as the incontrovertible fact that your committees are asked to recommend the passage of a measure which enables another monopoly to reach out its greedy hands to grasp the dollars of the 82,000,000 of American people. We ask you to kill paragraph (g).


Editorial in The Musical Age.

NEW YORK, June 30, 1906. KILL PARAGRAPH (G.)

Washington dispatches contain the information that the only serious protests entered so far against the provisions of the new copyright bill come from the makers of mechanical musical instruments. The printed report of the arguments before the joint committee on patents, which has just reached our desk, contains 206 closely printed pages, 90 per cent of which consists of arguments of those opposed to paragraph g of the bill, which forbids the use of copyrighted music, as follows:

"To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.”

The relationship existing between the Publishers' Association and the makers of mechanical instruments has been somewhat misunderstood. The publishers in their fight for copyright protection are chiefly interested in making the pirating of music a penal offense punishable under the laws of the Federal Government. This particular portion of the fight The Musical Age indorses, but after careful consideration of the mechanical instrument clause quoted above, together with its bearing upon the future of the music trades, and upon the almost predominant feature for which The Musical Age has been fighting for many years—the true democracy of music-we take the stand that the clause in question should be omitted in its entirety from the bil.

This proposed provision of the new bill affects directly the interests of the 80,000,000 of people in this country. It proposes to restrain and to place a tax upon the pleasures of the people. The refining and educational features of music are beyond question.

Photography, a modern process, coupled with the cheap engraving processes of late years and the abundance of popular illustrated papers, magazines, and books, has made art, in its broadest sense, familiar to every man, woman, and child in the country, and the choicest productions of the masters are familiar in every village and hamlet in the United States.

Art has been popularized. The same conditions exist in literature. No manufacturing city is so busy, no farming community so small that it does not contain its library. A list of the Carnegie benefactions alone resembles a half dozen pages of an atlas. The most expensive productions of the publishers of the world, the results of centuries of thought and investigation, are free to all who care to avail themselves of the opportunity to study and to learn.

In music the conditions are different. To hear good music is expensive. Before the invention of the mechanically played piano it was necessary for the student to undergo long years of patient study and hard work and to spend hundreds of dollars in education. Before the invention of the phonograph nine-tenths of the people had never heard the productions of the famous bands and musical organizations of the world.

These two separate and distinct classes of inventions have done a great deal toward making music popular and democratic; but in spite of the prosperous condition of the country, in spite of the cheapening influence of these modern mechanical wonders, there are still thousands of homes and hundreds of communities which have not felt the result of this cheapening in production. And the inventive geniuses are still at work. Our news pages last week chronicled the formal introduction into New York of the Cahill teleharmonium, through the agency of which it is expected that music of the highest class will be distributed from a common center to 10,000 subscribers. This week we give space to a new and wonderful invention called the telegraphone, destined before many months to make its influence felt in the music world. This instrument is a combination of the telephone and the phonograph, using a continuous strand of wire instead of wax cylinders or disks for recording purposes. And the end is not yet in sight.

If it is now possible to transmit music through the agency of wires over long distances, necessarily it will be but a short time before the mysterious influences which have made wireless telegraphy possible will be utilized in the dissemination of music. We look for no Utopia in this direction, but the progress of science is intensified through succeeding years.

The wonder of to-day becomes the household necessity of to-morrow.
No living man can predict to-day the conditions that will exist five years hence.

In spite of the sensational output of the cheap magazines, in spite of the work of the wielders of the muck rake, the world is growing better every day. Step by step civilization is advancing, and the wastes of this small globe of ours are gradually being turned to garden spots. Centuries of darkness and ignorance are being overthrown in a week. To restrict the production of cheap music would retard the work; it would be a step backward.

The copyright section in question says that no one shall reproduce by any appliance or in any manner whatsoever to the ear any material part of a copyrighted production. This means that the proprietors of these new and wonderful inventions, and of the inventions to come, could not use any copyrighted music without paying heavy royalty.

This royalty will come from the people and will go into the hands of the few.

The Musical Age does not occupy the position of desiring to see the laborer robbed of his hire. The composers of music in this country have been working for years under the provisions of a copyright law that gave them little protection. The law should be amended so that they get the protection which is their due. The clause making the pirating of music a penal offense should go through, but this should apply only to sheet music. It will not be a modern step to place a tax upon the pleasures of the people. Practically every municipality in the country provides free music to its people." Music everywhere should be as free as the songs of the birds and the whispering of the breezes in the trees. Paragraph g should be withdrawn.

g The CHAIRMAN. Mr. O'Connell, you may have until half past 10. Mr. O'CONNELL. Yes, sir.


Mr. O'CONNELL. Mr. Chairman, this is the end of a very long and trying session. We have been here now since 11 o'clock this morning, and I suppose that all you gentlemen are as tired of hearing the arguments of the various parties here as we are of waiting to be heard.

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I represent at this hearing 19 houses, 18 of which are manufacturers of piano players and player pianos in the city of New York, and one is one of the largest dealers in musical instruments of all kinds in the country. As was stated to you when I was here in June, when we came without any preparation to speak of, our position as manufacturers of piano players was that we were here simply to protect the capital that we had invested in a large business. Then I represented 10 houses. A couple of those have dropped out-one because it is no

. longer interested in the business. Since then others have come in—19 of them—and I want to say to you that a number of other houses in New York who manufacture players also wanted to come in and wanted to divide the expenses, but they refused to permit their names to be used. Therefore we refused their aid or cooperation.

The houses that I do represent are: Boardman & Gray, Albany, N. Y.; Rudolph Wurlitzer Company, Cincinnati, Ohio; Lester Piano Company, Philadelphia, Pa.; E. Gabler & Bro., New York; Estey Piano Company, New York; Pease Piano Company, New York; Strich & Zeideler, 'New York; Kroeger Piano Company, New York; Jacob Doll & Sons, New York; Pianova Company, New York; Ludwig & Co., New York; The Laffargue Company, New York; Regal Piano and Player Company, New York; Ricca & Son, New York; Rudolf Piano Company, New York; Winter & Co., New York; Davenport & Tracy, New York; Stultz & Bauer, New York; Paul G. Mehlin & Sons, New York.

I am also requested to say to you by Mr. E. S. Conway, of the W. W. Kimball Company, of Chicago, that both he and his company are unalterably opposed to paragraph g of the proposed bill, and that they are unwilling to accept the bill with a royalty provision added.

As I stated then, those houses have no particular quarrel with Mr. Herbert or Mr. Sousa. I also stated then that it was very extraordinary that the house which was seeking to gain a monopoly of this business was not nominally represented in any way at these hearings. I say it is more extraordinary still at the present time. They have had a great deal of time to consider this. They know the charges nade against them. If any body's ears would tingle, theirs ought to. But ostensibly no representative is here.

True, we have had a number of altruists here, who, interested nominally, apparently, only in authors and publishers of books, have gone out of their way whenever the question of paragraph g or Mr. Steuart's addition to paragraph f came up, and took up everybody's time to convince you that they, the altruists, insisted that, while they were not interested in a business way or monetarily in the musical industries, the bill should go through as a whole. It reminds us very much, gentlemen, of the saying attributed to Benjamin Franklin about Hanging together or hanging separately.'

A number of questions have been raised here and some of them have been discussed very fully. Mr. Walker went very thoroughly into the question of the constitutionality or the unconstitutionality of this bill.' I do not presume to know as much about constitutional law as Mr. Walker does, nor as the very learned and able counsel for the music publishers, Mr. Burkan. But I do say to you, sirs, that the question of the constitutionality of this bill is one merged in the greatest doubt. The language of the Constitution is plain; the decisions of

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the courts are plain. You only have the power to pass bills giving authors the exclusive right to their writings and inventors the exclusive right to their discoveries. A writing has a clear designation and a definitivo meaning. You only have the right to prevent copying of writings. / The question was asked this afternoon whether raised figures for the blind are an infringement of a copyright. Mr. Dyer, I think, answered “Yes.” I did not hear, because he spoke very low. And while it is true that the blind can not see those raised figures, I do not know that there is anything that prevents a man with a pair of good eyes from seeing them and reading them. They convey tinct impression to a man with a pair of good eyes, and are, therefore, readable.

I will pass that question, and I will come to the question of the invasion of the field of patents by this proposed act, paragraph g. And while on that, it is well to consider the very beautiful and technical exposition that Mr. Steuart gave you when speaking in behalf of this bill the other day. Ile did not call the attention of any member of the committees, neither has the attention of any member of the committees been called at any time, so far as I have been able to ascertain, to the original communication sent to the Librarian of Congress by the Commissioner of Patents on the 21st of June, 1905. I do not know whether you gentlemen, or any of you, are familiar with it. It was in answer to the original invitation. I will not read it at length, because my time is too limited. But I call your respectful attention to it, and I want you all to consider that after that communication (which does not appear to have been acknowledged), at no time afterwards did the Commissioner of Patents take part in any of the conferences. He gives what is to my mind a very clear exposition of the distinctions between the law of trade-marks, copyrights, and patents, and the powers of Congress to pass bills as to any of those three, and also as to what ought to be properly included under any of those heads. My reading of this document (of which I have a copy made in the Patent Office) shows clearly that the use of a mechanical device of any kind for the reproduction of sounds, or legislation which seeks to prevent the use of a mechanical device for the production of any sounds, does not come within the purview of the copyright law. If you are uncertain on the subject, I have no doubt that Mr. Allen, the Commissioner of Patents, would be very willing to appear before you and give you the benetit of his advice and long experience.

Mr. CURRIER. Do you wish to put that in the record ?

Mr. O'CONNELL. Yes, sir; it is in the record somewhere; the original letter ought to be in the files somewhere.

À GENTLEMEN. Put it in again.

Mr. CHANEY. I think we had that letter before we started in on these joint hearings.

Mr. BONYNGE. I do not know whether it is published in the record or not.

Mr. CHANEY. It is in the record.
Mr. O'CONNELL. It is not in the record of the arguments at all.
Mr. BONYNGE. Well, then, let us put it in.

(The letter referred to is printed at the end of Mr. O'Connell's statement.)

Mr. O'CONNELL. It ought to be in the files somewhere, Mr. Bonynge. The substitute which Mr. Steuart proposed in the way of taking out

paragraph (g) is really just about as bad as paragraph (g).

It is not so raw; the language is not so palpably an infringement of the patent field; it is sugar-coated; but, gentlemen, the pill is just as bitter, even though it is sugar-coated. There is nothing which is covered in paragraph (g) that is not covered and more than covered in the substitute as proposed by Mr. Steuart.

I might say at the outset that Mr. Steuart is a gentleman who stands very high in patent law--extremely high. But he has been a patent practitioner for a great many years. His thoughts are in the line of patents. The patent law is a fetich to him-something to be canonized. If you give him the idea as to what ought to be included, and tell him that you want that covered by the law, then I doubt not that he is as splendid a man as you could find to put that into execution; but as to deciding what is or what is not proper to include in a copyright act, what things to protect and what things not to protect, I take it, gentlemen, that the field of legislation is a little bit broader than the field of patent law, or the patent solicitor, or the patent attorney, with all his technicalities.

Now we come to the second question. Let us assume for the moment that the committee decides that it has the power to pass a bill such as is proposed here. Then we say to you that you ought not to exercise that power, and for a great many reasons.

The first reason you have probably had almost ad nauseam, this monopoly of the Æeolian Company. These contracts have been up and down the table here before you, and practically every speaker has discussed them. We have had two sets of them, the contracts with the music publishing houses and the contracts now with the manufacturers. There is a question raised in the minds of a number of members of this committee as to whether the force of those contracts was not conditioned

upon the White-Smith suit, and whether they would last so as to cover a situation where a new copyright law was passed.

Now, gentlemen, let us look at this as thinking men--men who know something, who have the ordinary faculties. Certainly you do not require legal proofs in a meeting of this committee. You are not bound down or tied down by the hard rules of legal procedure-nothing of the kind. That is not your province. What was the object of those contracts which were put in evidence last June-the contracts with the Music Publishers’ Association? They did not give us those contracts. We ferreted them out and found them almost by accident.

. They were not publishing them.

Now, what was the object? The object of those' contracts was to get a monopoly of the music-cutting business. That was their object. Is it reasonable to suppose that the leopard has changed his spots ? Is it reasonable to suppose that they have given up that object?

If we assume that those contracts fell on the failure of the WhiteSmith suit--let us assume that, which I do not concede, sirs-is it reasonable to assume that they stop there? Is it not more reasonable to assume that they still have their hankering after the monopoly, and that they have it clinched in some way? Is not that common sense? Have we not got almost direct proof of it in the contracts which were submitted, in the contracts which they want the manufacturers to sign, and which Mr. Pound offered in evidence here? And I have another one myself which was submitted to one of my clients, who also did not sign.

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