One of the points upon which the most serious contest took place in the framing of the bill was the protection of musical copyright. Never prior to this time has any copyright law in any part of the world given to musical copyright absolute control of the musical composition for all purposes, with the result that pianola records, phonograph disks and other removable parts of mechanical music-producing machines, were held to be free of the control of copyright, and generally speaking, this is the law of the world today. An attempt was made on the part of musicians to apply the same general law of property to musical compositions which is applied to all other forms of copyright property, but for certain considerations of public policy Congress was unwilling to grant this absolute and exclusive right. Appreciating the justice of the demand, however, they consented to grant to the musical copyright owner the absolute right to prevent the use of his copyrighted composition upon mechanical musicproducing machines, so long as he did not himself use the composition for that purpose or grant the right to any other to do the same; but the provision when finally adopted provided, Section 1, Sub-section (e):

"That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof."

This provision introduces into the copyright law a form of compulsory license, by which the public is protected against the possibility of monopoly; but the copyright proprietor is not given that absolute control over reproductions of his intellectual creations which might have been conferred by Congress under Article 1, Section 8, Clause 8, of the Constitution, which reads as follows:

"Congress shall have power to promote science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The Supreme Court has held, in the case of Banks vs. Manchester, 128 U. S. 251:

"Yet the means for securing such right to authors are to be prescribed by Congress."

And in United Dictionary Company vs. Merriam Company, 207 U. S. 264, the same court said:

"Of course Congress could attach what conditions it saw fit to its grant."

It remains to be seen how this provision will operate in practice. The motive of Congress was very friendly to the musician, but very clearly opposed to permitting any provision of law to become the means of creating a commercial monopoly.

Since the passage of the act, there has been some expression of dissatisfaction on the part of some of the publishers with that provision (Section 31, Sub-section d) which excepts from the operation of the copyright:

"Any book published abroad with the authorization of the author or copyright proprietor, when imported under the circumstances stated in one of the four sub-divisions following, that is to say:

First. When imported not more than one copy at one time for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States.

"Third. When imported for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school or seminary of learning, or for any state, school, college, university or free public library of the United States."

It will be noticed that Paragraph 1 of this sub-section prohibits entirely the importation for private use of any book copyrighted in the United States by an American author, but permits the importation for private use and not for sale of a foreign print with the authorization of the foreign author, although the American edition may have been copyrighted in the United States. By another provision the prohibition of this section is made inapplicable to the authorized foreign edition in a foreign language, of which only a translation into English has been copyrighted in the United States.

The third paragraph, which permits the importation for use and not for sale of not more than one copy of any such book in any one invoice by libraries and the like, is not limited to the copyrighted works of foreign authors, but includes foreign prints of works copyrighted in the United States by American authors. These clauses have received serious criticism since their adoption by those who claim that it is highly illogical to grant to foreign authors an exclusive right to print, re-print, publish, copy and vend their works, and then carve out of that exclusive right a general privilege in favor of any individual who chooses to violate it by importing for his own use a copy of such work published abroad by authority of the author.

Similar criticism is urged against the right granted to public libraries to import a foreign edition of any work, whether by a foreign author or an American author, notwithstanding the exclusive privileges granted by the copyright to the author in the United States. It is contended by the publishers that the prime object of the copyright law is to increase the value to the author of the exclusive privilege of printing and selling his writings, so as to encourage the author to devote his time and talents to the production of valuable literary works, and it is maintained that every sale of which the author or his American publisher is deprived by this exception, is a depreciation of the reward which the author is entitled to receive and a depreciation of the advantage which he has to sell when he approaches his American publisher.

On the other hand, it is contended that it is quite as much an object of the copyright law to promote the general distribution of literature as to encourage the author, and that the right to import a foreign edition published by the author's authority in a foreign country, and presumably under copyright abroad, is no injury to the author, because the sale abroad produces as much profit to the author as the sale in the United States, and that while the sale abroad deprives the American publisher of the sale, the American publisher is not the person to be principally considered, and the American public is entitled to have within its reach in the public libraries of the country the best editions of the

works printed anywhere, and it is to be presumed that the libraries will buy for their own use the best editions, and that they will not buy foreign editions if the American editions are as good. The force of these various contentions is largely a matter which must be settled by experience.

It may be said that the present law is more favorable to the owner of the American copyright than the previous statute, in that it prohibits the importation by the individual of any work of an American author copyrighted in the United States, whereas formerly this was permitted.

On the whole, your committee is quite satisfied that the present statute marks a very distinct advance in the law of copyright in the United States. It is undoubtedly true that the new statute involves a large number of new questions which will require much litigation and construction by the courts to determine just what the law means, but we believe that the consistent and logical character of the statute will be found to be a very great improvement upon the condition of the law as it existed prior to the passage of this act.

In accordance with the provisions of Section 25, Sub-section (b), the Supreme Court has since the passage of the act and before it went into force promulgated certain rules of practice and procedure for seizures in case of infringement. These rules regulate the practice under the act so far as infringement suits are concerned.

Respectfully submitted,

ARTHUR STEUART, Chairman,
WILLIAM B. HORNBLOWER,

ROBERT H. PARKINSON,

WILLIAM LOWELL PUTNAM,

MELVILLE CHURCH,

FRANK P. PRITCHARD,

EDWARD S. ROGERS.

REPORT

OF THE

SPECIAL COMMITTEE TO SUGGEST REMEDIES AND FORMULATE PROPOSED LAWS TO PREVENT DELAY AND

UNNECESSARY COST IN LITIGATION.

To the American Bar Association:

The special committee appointed at the meeting of this Association in August, 1907, and continued in August, 1908, was charged with the duty of considering carefully, alleged evils in judicial administration and remedial procedure and of suggesting remedies and formulating proposed laws.

At the meeting in August, 1908, it was directed to submit to Congress the bill which it had reported to this Association and to recommend to Congress the passage of the bill.

The second recommendation which the committee made was amended by this Association, and was recommitted to the committee.

We have given careful attention to the subjects referred for our consideration and report as follows:

A. PROCEDURE BEFORE CONGRESS.

The bill recommended by this Association was introduced in the House of Representatives, December 7, 1908, by Mr. Alexander, of New York. It was referred to the Committee on the Judiciary and ordered to be printed. It was introduced in the Senate by Senator Nelson, of Minnesota, and was referred to the Judiciary Committee of the Senate.

A sub-committee on behalf of this Association had a hearing before the full Judiciary Committee of the House and before a sub-committee of the Senate, consisting of Senators Dillingham, Nelson and Overman. The members of the committee of each House evinced great interest in the subject and suggested two amendments to the bill, which were approved by your committee.