Arguments before the Committee on Patents of the House of Representatives Part 32

Mr. DAVIS. Proceeding further, Mr. Olin said he was not interested in the introduction of any clause restricting the mechanical reproduction of music; that he was satisfied to leave that to the courts, and let the courts give the construction of that word "writing" in the Const.i.tution. They have been at work at it for many years, with the result that a machine remains a machine and not a "writing."

Mr. WEBB. Mr. Davis, your idea is that if the composer or publisher copyrights a piece of music and sells it and in the sale gets whatever price his copyright or royalty gives him, and you buy it, or anybody else buys it, that that purchaser has a right to play it or sing it in public or private, or anywhere else he pleases?

Mr. DAVIS. No, sir; I do not say that, exactly, sir----

Mr. WEBB. What is your position, then, if that is not your position?

Mr. DAVIS. Your proposition brings up the question of public performance. I say that the composer's rights are limited under existing laws to all benefits which he may receive from his visible, readable "writings" expressing his original musical conceptions, and that he can make copies of it in any manner he sees fit; but he has not the right to usurp the rights of an inventor to reproduce that music through self-acting mechanical means in public or private. The inventor has a peculiar field here. The Const.i.tution, as I would translate it, in layman's language, says: "Now, Mr. Inventor, if you can come in and invent a machine in which the melodies that would otherwise be lost can be forever preserved and reproduced to the public for the public benefit, you shall be protected." This includes public performances. We do this in a way that does not decrease Mr.

Sousa's income, but increases it, as I have explained.

Mr. WEBB. If a man goes to a store and buys a piece of copyrighted music he expects to have the right to sing it and play it anywhere he pleases; otherwise, what does he want to buy it for?

Mr. DAVIS. That is the human agency. Mr. Sousa's compensation may or may not cover all human agencies for reproducing that music, including public performances, and concerning which the inventor is not specially interested. The inventor should have the right to all mechanical agencies, where the human agency does not enter into it in any way whatever, including public performance.

Mr. WEBB. Well, they say you can use your mechanical devices wherever you please, just so you do not use their music.

Mr. DAVIS. Well, Mr. Sousa is not construing the laws. I am telling you my idea of the laws, as I understood them when I entered into this art ten years ago, and as the courts have sustained them right up to a few days ago.

Senator SMOOT. Mr. Davis, as I understand you, you would not object at all to paying a royalty for any music that you may use upon any instrument that you may have invented or produced, providing that that same royalty is paid by all other concerns or individuals, and that all other concerns and individuals may have the same right to use it as any particular one that the producer of the music may even try to designate himself?

Mr. DAVIS. Individually--and I believe I represent the cla.s.s of inventors affected by the proposed act--and without retreating from the stand I have taken regarding our present rights, I would not object, because I recognize that remote ethical right which you are casting about to secure and deliver over to the composer together with the many other new gifts in the bill. If you can protect it in some such way as will meet my many objections, we inventors will be satisfied, but I am constrained to say that I think your efforts will be futile.

The CHAIRMAN. I think that is all, Mr. Davis. You can submit in writing any further statement that you desire to make.

Mr. DAVIS. Thank you; and may I submit later the evidences and proofs to which I have referred?

The CHAIRMAN. You may do that.

Mr. DAVIS. Senators and Representatives in joint committee a.s.sembled, I thank you for the close attention which you have given to my remarks and for the liberal extension of time within which to make them; and on behalf of the inventors of this country I a.s.sure you of our full confidence and belief that you will finally modify the proposed act in a way that will protect our properties and persons against the monopolistic giants who do now or may hereafter seek to destroy us.

Mr. SOUSA. Mr. Chairman, the gentleman referred to "visible music."

Now, as I think you can see, that [referring to sheet music] is music, one notation. This [indicating perforated roll] is a perforated roll.

That is visible; that is music in another notation. That is what they are taking [indicating perforated roll]; that [indicating sheet music]

is what we are paid for.

Mr. HERBERT. Mr. Chairman, one word. Mr. Davis has made a statement which is absolutely untrue. He said, speaking about the aeolian Company and this contract which they have signed, or made the publishers sign with them, that "They control the publishers and the publishers control the composers." That is absolutely untrue in my case. n.o.body controls my works, the works that I am going to write. I am going to bring out a work in September, of which I have only written a few notes so far. I do not even know what I am going to write, and n.o.body has a contract with me to-day. I want to state most emphatically that I have not even been approached by any firm for the future.

Mr. CURRIER. Who is your publisher?

Mr. HERBERT. Mr. Whitmark, of New York.

Mr. CURRIER. Has anybody else published any of your music?

Mr. HERBERT. Yes; Schubert & Co., Schirmer & Co., and so on.

Mr. CURRIER. Do you mean lately?

Mr. HERBERT. That was before I went with Whitmark.

Mr. CURRIER. How long have you been with him?

Mr. HERBERT. About six or seven years.

Mr. CURRIER. And n.o.body else has published any of your music in six or seven years?

Mr. HERBERT. Not since then; no, sir. Naturally, I have a perfect right to go around to my friends and get the best offer I can, have I not?

Mr. CURRIER. Surely.

Mr. HERBERT. There must be compet.i.tion. But I want to state most emphatically--and I know that these gentlemen are going to try to make the point that arrangements have already been made--that there have no arrangements been made in my case--absolutely none. I have not even been approached by any one of the companies--not even by the company, for instance, that is in favor of paying the royalty, the Victor Talking Machine Company. They have never spoken a word to me about the future, and I have not made a contract for my next work with Whitmark & Sons yet. I may publish it with somebody else; I do not know. So I am perfectly free to say that his statement in that respect was absolutely untrue.

Mr. SOUSA. I would like to say, Mr. Chairman, that I have never been approached by any of the mechanical instrument companies; and the house which I have a contract with, the publis.h.i.+ng house, is not a member of the Music Publishers' a.s.sociation. I have never even been approached by any of them, and I have no contract with anyone.

The CHAIRMAN. We will hear you now, Mr. O'Connell.

Mr. PUTNAM. Mr. Chairman, for the group of interests which are now to be heard I wish to make a statement that they might feel called upon or required to make, but which it is not fair should be taken out of their time. They were not partic.i.p.ants in the conferences. How completely they were omitted is apparent only from the list. That list is before you. It will take but a moment to read the t.i.tles of these a.s.sociations: American Authors' Copyright League, National Inst.i.tute----

Senator SMOOT. We know them.

The CHAIRMAN. They are already in the record. They have been laid before us.

Mr. PUTNAM. They were not partic.i.p.ants in the conferences. They were not invited to the conferences by the copyright office. There were no notices sent to them from the copyright office that the conferences were being held; that these provisions were being considered at them.

The copyright office shows, so far as I am aware, no communication with them on the subject of any of these provisions. We have never, ourselves, in any way notified them that these provisions were being proposed for the bill. I say that as much because it is to their advantage that I should say it as for them to say it, and it is not fair that that statement should have to be made at the expense of their time.

STATEMENT OF JOHN J. O'CONNELL.

Mr. O'CONNELL. We intended to make that statement ourselves.

The CHAIRMAN. Whom do you represent?

Mr. O'CONNELL. I appear on behalf of ten independent manufacturers of automatic piano players in the city of New York, and the names of these concerns are as follows: Winter & Co., Ludwig & Co., Jacob Doll & Sons, Laffargue & Co., John Ludwig, the Regal Piano and Player Company, Ricca & Son, the Auto-Electric Piano Company, Newby & Evans, and the Estey Piano Company.

I also appear on behalf, by arrangement here, of independent manufacturers of music rolls. I can also say that possibly what I shall have to say to your committee will represent the ideas of the various independent manufacturers of automatic piano players in the United States and the various independent manufacturers of perforated music rolls.

To anybody reading the provisions of this bill it would appear very clearly that one of the great special interests were the manufacturers of perforated music rolls. Proceed a little further and it will be very apparent that the manufacturers of automatic piano-playing instruments, which can not be operated without music rolls, had a very special interest in this bill. It would be the easiest thing in creation to notify the manufacturers of music rolls and the manufacturers of automatic piano players of these conferences. Take up any directory of manufacturers in the United States and you would find them by the dozen.

The CHAIRMAN. Let me interrupt you for a moment, Mr. O'Connell, to say that so far as I myself am concerned it does not seem necessary to continue longer upon that line, for the reason that the committees of the Senate and House are now giving you a hearing, and you shall have an ample opportunity to present your side of the case.

Mr. O'CONNELL. I simply wanted to make it clear to the whole committee, as I explained it to the chairman yesterday, that it was only last Sat.u.r.day that we knew what the situation was and knew what the provisions of this bill were.

I might say at the outset that the companies which I represent are not members of that cla.s.s which Mr. Putnam so delicately denominated as pirates. We are here to protect industries in which there are invested millions of dollars. It has also been said by some of these special interests which are appearing in favor of the bill, in elegant language, that we were "b.u.t.ters-in" at the eleventh hour, and that we are here for the purpose of a hold-up. If protecting our business makes us b.u.t.ters-in and hold-up artists, then we come under that definition.

I want to say furthermore, at the outset, that we have no particular controversy or quarrel with those very eminent gentlemen, Mr. Herbert and Mr. Sousa. It is perfectly proper for them to seek to get all they possibly can from the products of their genius, but we are all a great deal too sentimentally inclined toward them and their possessions because of the many hours of delight they have given to every one of us.

Here is our position, and I will try to outline it as briefly as I possibly can: A number of years ago in the city of New York, within the last decade, a number of gentlemen interested in a manufacturing concern, one of the pioneers in the piano-playing industry, had the foresight to realize that the industry was destined to become one in which there were millions of dollars of profit, followed the conclusion that they would like to get for themselves all of the millions in that particular industry. The question was how to achieve and attain that result. Naturally they turned to the patent laws, to get monopolies under patents covering not only the machines themselves, but also the music rolls, without which the machines could not be operated, and machinery for cutting such music rolls.

Applications were made on their behalf for hundreds of patents, both on the machine and on the music rolls, and on machines for cutting the music rolls. Before they had gone very far, however, it developed that the patent laws would not afford them a monopoly of the machines or the music rolls, because of the fact that they could not get and control a basic patent, for the reasons that in the first place the operation by means of wind instruments, vacuums, etc., of an automatic playing device was as old as pipe organs, and furthermore that the perforated music roll or perforated music sheet was also as old as the very ancient hand organ. Therefore they saw that it was utterly impossible for them to obtain the monopoly which they wanted under the patent laws, and naturally the next thing for them to consider was: Can we not attain the required result through the copyright laws?