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The merit of the record is due to other factors than the musical composition and the mechanical accuracy with which its characters are copied, namely: (a) To the artistic ability of the performer or performers. The sound record is a faithful reproduction of the individual performance and its merit popularity, and salability depend upon the reputation of the artist or artists and the excellence of their artistic rendition of the selection: (b) the excellence of the sound record depends upon the technical ability of the record maker, which is displayed in grouping the various instruments, adjusting the delicate recording appliances, etc.—the importance of this branch of the work is such that it also may properly be termed "artistic;” (c) the excellence of the sound record depends further upon the nature of the process and apparatus as a whole, whereby the fugitive sounds are caught in their brief existence, and, ere they die away, embodied in permanent form for subsequent repetition. Enormous labor and capital have been expended upon the invention and perfection of these processes, and instead of discouraging and circumscribing their use it were the part of wisdom to promote their use and to increase and cheapen, so far as possible, the output from them; (d) finally, these sound records serve as a sort of mechanical memory, preserving not merely a register of the particular musical composition, but the very tones of the voice of the singer, as given forth on the particular occasion when that special record was made.
We do not for a moment suggest that these differences are such as to bring the music roll within the realm of proper or desirable copyrightable subject-matter. Our opinion is decidedly to the contrary, and the above distinctions will serve their best purpose in showing that the attempt to find support for a provision that will cover music rolls is fallacious in its reasoning, since the supposed features of resemblance therein to the music sheet are totally lacking in the graphophonic sound records, which are analogous in their operation as machine elements to music rolls.
I beg to print as an appendix a letter written by me to Senator Knox of, your committee, when I first heard of this copyright bill.
JUNE 2, 1906. Hon. P. C. Knox,
United States Senate. DEAR Senator Knox: I have just received a copy of "A bill to amend and consolidate the acts respecting copyright," introduced May 31, and referred to the Committee on Patents, whereof you are a member. Am also informed that a hearing on the bill will be granted before the committees of both Houses on the 6th instant. As I do not expect to be in Washington on that day, I beg to call your attention to a feature of the bill, which, if enacted, would be highly prejudicial to my clients, the American Graphophone Company, and Columbia Phonograph Company, and to other important manufacturing concerns. By section 1, clause (g), it is proposed that the copyright secured by this bill shall include the exclusive right 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.”
This act would include in its scope all automatic musical instruments, such as grapnophones, orchestrions, pianolas, music boxes, etc.
This is a very radical departure in legislation under the constitutional provision (art. 1, sec. 8) which conferred upon the Congress the power by legislation to protect authors in their “writings.” It is proposed by this bill to extend the copyright provisions so as to include any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear” the copyrighted composition.
i. This provision I believe to be clearly unconstitutional. The protection of “writings” has always been held to mean the making of copies of the book, print, photograph, etc.; that is, a copy which represents the composition to the eye. It is the graphic representation which is the proper subject of a constitutional copyright law. The constitutional provision goes no further. On the contrary, it is a part of the consideration to the public, that the purchaser or owner of a copy shall have the right to read it (if a book) as often as he likes, either to himself or aloud to others, or (if a musical composition) to repeat it or have it repeated as often as he likes.
If a person be rich enough to own a piano and skillful enough to play thereon, he can repeat a favorite theme ad infinitum; or he may memorize it and thus be independent of the copy. The automatic music players of the day, are to the poor and
techinally unskilled what the expensive musical instruments are to the rich and cultured. The proposed legislative departure is aimed at the former.
2. The bill proposes to invade the domain of the patent laws by covering mechanical devices, and thus to include what has been repeatedly held by the courts of England and this country can not by any stretch be included in the copyright provisions as they now stand. I desire, at an appropriate occasion, to submit an argument on this point. Will only observe here that the attempt to include a purely mechanical device, such as a sound-record cylinder, within the copyright provisions, has been made in various parts of the world. It has met with some success in France, causing great mischief, but in England, Germany, and Belgium has been disapproved by the courts. A decision of the court of appeals at Brussels, dated December 29, 1905, discussed the whole subject at length. "I quote only the following:
“Considering that these apparatus can not be assimilated to the writing, or the notation by an engraving process, of the thoughts of the author; that they have nothing in common with the conventional signs permitting reading or comprehension of the work to which they are related; that isolated from the rest of the instrument they remain, in the actual state of human knowledge, without any utility; that they are only one organ of an instrument," etc.
3. Although the above quoted provision of the bill is doubtless aimed at the manufacture and sale of graphophone cylinders, automatic pianos, etc., it is broad enough to cover any and all musical instruments, since all these are devices adapted to reproduce to the ear copyrighted (as well as uncopyrighted) musical compositions. Under the proposed bill no one could play or sing publicly any copyrighted work, or make, even in private, a sound-record of a song or speech out of a copyrighted work. Every such act would be subject to a penalty of not less than $10.
4. Not only are sound-record cylinders purely mechanical devices, being parts of operating machines, which take automatically the place of the fingers of a performer (and being for this reason not a proper subject of copyright provisions), but it is also to be noted that the value therein resides largely in the capability or reputation of the artists who sing or play in making the record, as well as in that of the manufacturers. We have here a case totally different from the making and selling of copies of a book or musical composition which is the proper subject of copyright protection under the Constitution, and in which the value resides entirely in the composition.
5. It is no hardship upon an author to have his composition repeated as widely as may be. Per contra, it is this repetition in the public ear that makes a song popular and extends the sale of copies of it. On the other hand, the repetition audibly of the musical sounds is the very purpose for which copies of the composition are bought; and clearly there is no difference in principle whether the audible repetition be by the fingers of a human being or by the mechanical fingers of an automatic player. In neither case are the fingers a proper subject of copyright.
6. I have been informed that this provision of the bill is being promoted by a private understanding between a certain concern and the publishers, with a view to fostering a new kind of monopoly and favoring certain special interests. On this head I can at present make no positive assertion, but can say that the bill would create opportunity for unfair competition, as the musical compositions are all controlled by a few music publishers, who are well organized to act together.
7. The bill is long and complicated, containing many provisions which should have close scrutiny. I will not weary you with a discussion of it. My present object is merely to say enough to make it plain that this legislation should be proceeded with very cautiously, and that the interests who would be adversely affected thereby should have ample time to study the bill carefully and to present their objections fully. It is very evident, even upon a hasty perusal of the bill, that its provisions have been framed for the benefit of a few individuals, and that the interests of the public have not been taken into consideration by its framers. Very respectfully,
STATEMENT OF EUGENE DE KLEIST, ESQ., OF NORTH
TONAWANDA, N. Y.
Mr. DE KLEIST. My name is de Kleist. I represent the de Kleist Musical Instrument Manufacturing Company. I am established and have been engaged in the manufacture of automatic instruments for over thirty years. For the last fifteen years I have been a manu
facturer in this country. I manufacture a great number of different automatic playing instruments, pianos, organs, etc.
I also manufacture musical records which are used in connection with these instruments, and I am the only manufacturer of these records. I could not buy anywhere records that can be used in connection with the instruments I manufacture. Therefore you see, gentlemen, the passage of the bill before your committee would ruin my business.
The CHAIRMAN. How would that be accomplished ?
Mr. DE KLEIST. Because I would be hindered from making the records. The moment the "arrangement" is made for the copies of the records that moment it becomes a copyright, and I can not go on and manufacture any music records which could be used in connection with my instruments. The records I manufacture are entirely different from those manufactured by others. I could not even buy records. And who would buy an instrument if he could not get the necessary means to play it? Gentlemen, I am also an inventor. I do not know how many patents
I have long since forgotten the number. I have invested a very large amount of money. From fifty to one hundred thousand dollars would not cover the expenses that I have been put to in perfecting these inventions. What shall I do with these patents? I have all my property tied up in this business. The moment this bill becomes a law it is all lost to me. My life's work—there will be nothing left of it. And why? Only to favor a monopoly. That fact has been brought before you clearly. Gentlemen, I ask you for protection. I am entitled to it. Before coming to this country I investigated the laws of this country and found that the law protected me, and therefore I came here. I came here with the intention to improve my position in life, and now am I going to be ruined entirely?
Gentlemen, I want also to speak a few words on behalf of the workmen I employ. When I first came to this country I manufactured automatic organs, an entirely new industry in this country. Never before had automatic organs been manufactured in this country until I came here. I had great difficulty in finding workmen-workmen acquainted with the art. I had to educate every single man in my factory. These men used to live around the factory-farmer boys. Now what is to become of these people? I don't remember that ever a single one of my men has ever been found guilty of any crime or anything else. They have all their little homes. They have their families. Now, gentlemen, is it fair to drive them in the street? It will be very difficult for them to find employment in this country in that same business.
Gentlemen, that is all. I thank you.
Mr. HINSHAW. You don't object to the whole bill—only to certain parts?
Mr. DE KLEIST. Only to certain parts.
Gentlemen, I want to thank you very much for the time you have given me. I certainly appreciate the great patience you have shown in listening to our arguments.
Senator CLAPP. It may be our inability to understand your argument, but I don't think we yet see how this law will drive you out of business. You can print and make everything after the law is passed that you can make to-day.
Mr. DE KLEIST. Certainly not. No; I can not. Senator CLAPP. Why not? Mr. DE KLEIST. Because the moment any arranger files two copies with the Register of Copyrights he is entitled to a copyright on such music.
Senator CLAPP. That will only apply in the future.
Mr. DE KLEIST. At this moment, no; but if it should become a law it would.
Senator CLAPP. So far as any musical compositions of to-day are concerned, you can go on with your business just the same?
Mr. DE KLEIST. To-day; yes.
Senator CLAPP. It does not interfere and will not interfere with any right you have to-day.
Mr. DE KLEIST. Not yet, but it would if this bill should become a law.
The CHAIRMAN. It only effects you in regard to compositions not yet produced.
Mr. Pound. Of course he could not do business unless he had all the late popular music.
Mr. HINSHAW. You can have the music if you buy the copyright of the owner.
Mr. DE KLEIST. Yes; but you will understand most of the principal composers have already made contracts with the Aeolian Company. Here is the contract made between the dealers and the manufacturers by the Aeolian Company, which says I must not buy records of anybody else.
Mr. CROMELIN. Mr. Chairman, after giving the matter much thought and consideration, and believing that it will be quite impossible for you to embody into your proposed copyright bill any clause covering reproductions to the ear from mechanical reproducers of sound, which can be put into practical operation; viewing the subject broadly from a business standpoint, without regard to the grave constitutional questions involved or the expediency or otherwise of your making this radical departure in legislation; having in mind the various instruments themselves and the impossible task of bringing them under one head, even if I admitted that they ought to be brought under the domain of copyright, which I do not-permit me to suggest that
your best course, your safest course, and surely the course by which you will be doing the greatest good to the greatest number is to embody into your bill a provision somewhat similar to that adopted by the British Parliament in the copyright act of 1906.
I therefore petition you as the representative of my company, as president of the American Musical Copyright League, and in behalf of the American people to strike out paragraph g, section 1, and its dependent clauses, and, further, that you omit from the bill section 64 and substitute in lieu thereof the following:
SEC. 64. That in the interpretation and construction of this act the words "production," "reproduction,
" "work,” or “writing” shall not be deemed to include perforated music rolls used for playing mechanical instruments, records used for the reproduction of sound waves, or other mechanical devices designed for the production or reproduction of sound, or the plates, molds, matrices, or other means by which such mechanical devices are made.
The CHAIRMAN. Are there any others to be heard?
I have some communications to offer. The Register, I believe, desired to ask a question of Judge Walker. He wished to ask it last evening, but I told him he had better defer it till this morning.
The REGISTER OF COPYRIGHTS. The question was in regard to the names of associations of composers in the United States.
Mr. WALKER. I have not the names and have never heard of any except the one mentioned in your paper. This list of participants in the compilation of this bill contains the names of parties who took part in the compilation of this bill, according to the statement of the Librarian of Congress, and there is here a list of people who participated, and among that list is one headed "Composers and then a sub
” head "Manuscript Society," and then appears the names of Miss Laura Sedgwick Collins and F. L. Sealy. And opposite Miss Collins's name is an Arabic numeral 1 and opposite the name of Sealy was the Arabic numeral 2; and a footnote indicates the persons were present only at the first session, of all the sessions held-Miss Collins was present at only the first session and Mr. Sealy was present only at the second session. So it appears no composers were even nominally present in the preparation of this bill, except these two. That is all the trace I have ever been able to find of any desire on the part of any composers to have this section g amended, except so far as that desire was expressed by John Philip Sousa and Victor Herbert, and they are men of great wealth, and men upon whom the American people are loading money, and not content with the great wealth they are getting from the American people, which wealth has been largely augmented by the aid of the automatic instrument manufacturers, yet they are bent on ruining the business of these manufacturers, in order that they may amass still more wealth.
The LIBRARIAN. I do not understand from the Register it was with any view of questioning the statements of fact that the composers were not represented at the conference, beyond the very meager representation you have indicated, and that was not one iota more than you have stated, nor did he have any intention of minimizing your inferences from it. What was the reason of your question, Mr. Register?
The REGISTER OF COPYRIGHTS. The endeavor was to have invitations to the conferences sent to any association of composers, if they could be discovered, and our files show we sent out nineteen or more letters in the endeavor to ascertain whether such an association existed, and we were not able to get track of any except the one entitled “The Manuscript Society,' which is really made up of composers of music.
The LIBRARIAN. Did you write the Musical Courier?
Example of letter of inquiry issued by Cpyright Office as to associations of musical
May 1, 1905. DEAR SIR: The pressure for some revision of the copyright laws has been constant of late years, so that finally the Senate Committee on Patents has promised to bring in a bill this coming session of Congress. In the meantime it has authorized the Librarian of Congress to call such conferences of the interests concerned in copyright