Arguments before the Committee on Patents of the House of Representatives Part 47

Seventh. That such legislation is directly contrary to all recent legislation in foreign countries, the most important of which is the act of the German Reichstag in 1901, by which perfect freedom is given to use copyrighted works for the purpose of mechanical reproduction; and by which, by reason of an interpretation announced by the minister of justice prior to the third reading of the bill, the right to record and reproduce any copyrighted work by means of talking machines was expressly permitted.

Eighth. That such legislation is contrary to the spirit of the Berne convention.

Ninth. That in no other country is substantially like protection afforded to composers, but that such protection has been universally denied.

Tenth. That even if such rights were granted under the laws of Great Britain, Germany, France, Belgium, and other countries, which they are not, it is beyond the power of Congress to do other than that which it is expressly permitted to do under our Const.i.tution, and the only way by which such a law could be enacted which would stand the test of the highest court of judicial inquiry would be by an amendment to the Const.i.tution of the United States. On behalf of my company, I protest against being plunged into such long and expensive litigation as would necessarily ensue if this bill becomes a law, unless the necessity for the same is urgent, and this I emphatically deny.

Eleventh. That such legislation is in direct contradiction to all recent judicial decisions on the subject in this country and abroad in which common law rights and statutory rights of authors and composers, their scope, extent, intent, and purpose have been discussed, the most noted of which in this country is the decision handed down by the United States circuit court of appeals, second circuit, during the last week of May, in the aeolian suit against the Apollo Company, Judges Lacombe, Townsend, and c.o.xe, without a dissenting voice, approving and upholding Judge Hazel's opinion rendered in the court below sustaining the contention that the perforated roll is not a violation of the copyright, and it is interesting to note that the court went out of its way to say:

The argument that because the roll is a notation or record of the music it is, therefore, a copy would apply to the disks of the phonograph * * * which it must be admitted is not a copy of the sheet music.

In England the same position is taken by the courts, the leading and most recent case being Boosey _v._ Whight, in which it was clearly held that the perforated roll was not a violation of the copyright. In Belgium, by decree of the fourth chamber of the court of appeals in Brussels, December 29, 1905, in the case of Ma.s.senet and Puccini, composers, _v._ Ullman & Co. and Pathe Freres, manufacturers, in dismissing the suit, with costs, the court uses this language--I want to say to you, gentlemen, that this was a graphophone case:

Considering that these apparatus can not be a.s.similated 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 of execution.

In dismissing the suit the court referred to a similar suit decided in France February 1, 1905, in which it was confirmed that--

airs of music on disks or cylinders of graphophones and gramophones do not const.i.tute a musical infringement.

Twelfth. That the proposed legislation in so far as relates to mechanical reproductions is in furtherance of the plans of certain powerful interests to obtain a monopoly--an international monopoly--on mechanical reproducing instruments of all kinds, and that they are attempting to use the legislative branch of the Government to secure that which has been repeatedly denied them by the courts.

Thirteenth. That it is vicious, in that if it is permitted to be enacted into law it will deal a deathblow to great American industries which have been extended until now they embrace all countries, and in which millions of dollars have been invested in the knowledge that the right to manufacture was perfectly lawful and that the right to continue such manufacture, unhampered by such ruinous conditions as would be imposed by this bill, could never be brought into question or become the subject of serious dispute.

Fourteenth. That if this bill becomes a law it will seriously affect the rights of thousands upon thousands of American citizens who have purchased these machines and who have the right to expect to continue to use them and to obtain the supplies for them at reasonable prices instead of paying tribute to a grasping monopoly.

Fifteenth. And finally, that whatever arguments may be advanced by the a.s.sociation of musical publishers (and their allied interests, whose representatives framed the bill, and who, if it becomes a law, will get 99 per cent of the benefits to be derived therefrom), regarding other methods of mechanically producing sound on the theory that the same const.i.tutes a method or system of notation and under certain conditions may be read by persons skilled in the art, under no circ.u.mstances can such arguments be truthfully advanced to cover or apply to talking machine sound records.

No man living has ever been able to take a talking-machine record and by examining it microscopically or otherwise state what said record contains. In this sense it stands preeminently in a cla.s.s by itself, being unlike perforated rolls, cylinders containing pins, metal sheets, and other devices used in mechanical production of sound, and is not to be likened in any manner to the raised characters used in methods of printing for the blind, where by the sense of touch the meaning is intended to be conveyed. The sense of touch is a mere incident due to the disability of the blind, but it is perfectly feasible and easy to read the characters with the eye, and they are very properly the subject of copyright. I repeat, that to attempt to decipher a phonograph disk is in the very nature of the proceeding "reaching for the impossible." How utterly preposterous and ridiculous it would be to pa.s.s this act in its present shape, which would make a telegraphonic sound record, which is something that can not even be seen--the record itself being caused by the magnetization and demagnetization of an electric current of an ordinary piece of wire or a cylinder or disk of steel--a violation of the copyright laws.

You have seen several examples, gentlemen, of methods of reproducing sound. Mr. Cameron showed you yesterday the disk form of talking-machine record. [Exhibiting disk.] That record, if you were to examine it under a microscope, is an engraving of the sound, which is produced by a method wherein the sound waves are engraved laterally at a uniform depth.

Another form is the cylindrical record. Mark you, gentlemen, our company is the only one on earth that manufactures both forms. We are vitally interested in this legislation. In the cylindrical record the cut is of uneven depth. It is an up-and-down cut.

There are other methods, and one or the most important discoveries of the age--a discovery which was considered of so much importance that at the St. Louis Exposition of 1904 it was given great prominence in the Government exhibits--is the telegraphone.

I have here a record [exhibiting record] and I would like to ask Mr.

John Philip Sousa if he can recognize "The Stars and Stripes forever"

upon it. I would like Mr. Bowker, who stood up yesterday and said that he could read the music roll--which I emphatically deny--whether he recognizes an address of Mr. Victor Herbert upon this form of record [exhibiting record]?

I doubt very much whether these persons who have come down here for the purpose of putting through this legislation have ever seen this thing. They do not know what it is, even. That is the sound record. I do not know what it is. n.o.body knows what it is until you put it on the machine. Yet it can be reproduced indefinitely, and it can be destroyed by that peculiar power which we know not, because no one knows at the present time what electricity is. I want to tell you what you are doing: When you pa.s.s this bill and make it a law, you make that piece of steel copyrightable [indicating]. You make this record spring copyrightable. You do not see anything on it. Look at it closely. There is nothing but a magnetic current--an electric current--by which the sound is actually recorded and can be reproduced indefinitely. I regret, gentlemen, that I am not able to show you; and I hope at the sessions of Congress, or during the recess, to personally demonstrate what I am bringing to your notice this morning.

There is one other point I would like to bring to the attention of you gentlemen, and that is this: That in the cylindrical form of talking machine it is not necessary for the manufacturer to make the roll. In every other mechanical instrument which has been referred to here the process is a factory process; but, as I am speaking, the very words that I am uttering are being taken down by Mr. Hanna, and in less time than an hour these words will be transferred to a graphophonic record; and by that means to-morrow morning you will get your printed record.

For fifteen years the reports of the House of Representatives and the Senate of the United States have been prepared in this manner. And now, when you make this bill a law I can not, notwithstanding the fact that I have purchased a piece of music of Mr. Herbert, take that which I have purchased and sing it into my machine at all. It is impossible to do so. I wish to draw this fine distinction, and show you that in the cylindrical form of talking machine it is not a mechanical operation which is done in a factory, but that it is an instantaneous form of photographing the voice. I would like to have a notation made of that.

You have limited me as to time, but before closing I want to show you what the practical operation of this bill would mean.

The CHAIRMAN. Your time has expired.

Mr. CROMELIN. May I have just one moment?

The CHAIRMAN. You may have one minute more.

Mr. CROMELIN. I would like to show you the point of the multiplicity of royalties. Under this law I go down to John F. Ellis's and buy a sheet of music composed by Mr. Victor Herbert. I pay the royalty at the time that I buy that music. I am a singer and I want to sing it. I go to a talking-machine company; but no, I do not dare. I must seek Mr. Herbert. And he says: "You are going to make a big sum on it, and you must pay me $25." I pay him $25, and I go to the talking-machine company and the company does not dare to proceed. They must first seek Mr. Herbert. Mr. Herbert says: "You are going to make a lot of money out of this; I want $100 before you can make the record." We pay that for the record.

I do not know when I get the record whether I am going to get a thing.

It goes through a factory process, which costs me another hundred dollars, and then the record is made. I am about to announce the record to the people of the United States, and to give them the privilege of hearing it. What happens? No; I do not dare to do it.

Every American has to pay tribute to Mr. Herbert. Before I can sell those records Mr. Herbert must get a royalty of 10 per cent on every one of them. I do not believe it is the meaning of the Const.i.tution to do this.

Let us go one step further. At a recent banquet in Portland, Oreg., of the "Ad. Men's a.s.sociation," by arrangement with the telephone company, over the seat of every person who partic.i.p.ated in that banquet there was a little horn attached to the telephone, and there was a Columbia graphophone at the central office. But if this bill becomes a law the telephone company would not dare do that. They would not dare give the people in the country the privilege of an evening's entertainment, where they can not get to the big cities, without first arranging with Mr. Herbert. Mr. Herbert would say: "No; you can not do this. I want a hundred dollars' profit before you do that." After you have done it, everybody who pays a toll of 5 cents for an evening's entertainment to the telephone company pays its tribute to Mr.

Herbert. I do not believe that that is the intention of you gentlemen.

I regret that I am so much limited as to time, and I hope to appear before you during the summer session, as I believe that I can throw some new light on the situation.

Mr. CURRIER. You gentlemen speak of the committee holding sessions during the summer season. The House has no such authority. The members of the House are likely to have a very busy season, and it will be impossible to get the House committee here during the summer. But the House committee will be here on the first Monday in December, ready to hear you gentlemen.

Mr. CROMELIN. I thank you very much for your attention.

Mr. CHANEY. In the statement that you submit I would like to have you make it specific as to which sections you object to, and make your argument apply to those sections.

Mr. CROMELIN. I shall be glad to do that.

Senator SMOOT. And let it follow your remarks in the record?

Mr. CROMELIN. Yes, sir.

STATEMENT OF ALBERT H. WALKER, ESQ., OF NEW YORK.

Mr. WALKER. Gentlemen of the committee, I sincerely thank you for the compliment implied in giving me an hour in which to express my views upon this bill. The allowance is liberal, and it will not be extended except at the request of the committee. My hour will be an hour of sixty minutes, and my remarks will end at twenty minutes before 12, if they end in the middle of a sentence.

I do not appear in behalf of any particular interest, although I have one client which is interested in one section of the bill. I do not propose, however, to address myself particularly to the interests of that client. I do propose to address myself to the bill as a whole.

I think that the gentlemen who prepared this bill are to be thanked by the committee, and by the people of the United States, and by everybody else, for the large amount of labor which they have devoted to the preparation of that proposition for legislation. I particularly desire to express my personal appreciation of the labors of Mr.

Putnam--his entirely disinterested and very skillful labors in the preparation of the bill.

We have had copyright laws in this country now for exactly one hundred and sixteen years, and none of them have been scientific; none of them have been systematic; none of them have been well developed. It is high time that the whole system of legislation upon the subject should be put upon a scientific basis and should be developed in a scientific form. This bill is a sincere attempt to accomplish that result. It contains a number of provisions which I heartily approve. It contains much that I think ought to be amended. I trust that out of this bill, and before the end of the present Congress, a bill will be evolved which will be enacted into law, and which will be just as to all parties and of very much benefit to the American people, and of benefit to the composers and the authors, who are the particular subjects of the bill. I believe, however, that before that result is accomplished extensive amendments must be made in this bill.

I am going to devote the first ten minutes of my time to stating the principles upon which I think those amendments ought to be framed, and after that I am going to apply those principles to portions of the bill, to show what changes would result from the application of those principles to the bill. In order to say what I intend to say on the subject of principles, it will be necessary for me to indulge in a few moments of historical statement.

When the scholar looks over the civilizations of history, he finds only one principle that pervades them all, and that principle is the principle and idea of the continuity of private property. China, Greece, Rome, Babylon, Nineveh, Judea, Egypt, England, Germany, Russia, the United States are all pervaded, as j.a.pan is, by the notion of the continuity of private property. And when I speak of the continuity of private property I mean its continuous continuity, its hereditable character, its pa.s.sing down from father to son, from age to age, and from generation to generation.

My good friends Victor Herbert and John Philip Sousa, men whom I respect personally as well as professionally, are basing their desire for the pa.s.sage of this bill upon the notion which they have that that idea of the continuity of private property inheres in their intellectual productions; and there is exactly where my brothers are mistaken.

I am myself an author. I am an author of books and writings. A hundred of them probably have been published. I am the author of a very large number of addresses, which have been delivered without writing, on religious, historical, economic, legal, scientific, and miscellaneous subjects; but I know, as well as I know any proposition in history or in law, that I have not any element of private property in any of those intellectual productions, in the sense in which I am defining private property, namely, with the idea of continuity.

Why is that so? It is so because from the foundation of the world until now there never was a nation and there never was a day when the idea of the continuity of private property was connected in the minds of men with intellectual productions. England has developed the idea of private property more fully than has any other nation; and England never ascribed the idea of the continuity of private property to any intellectual production, either for an invention or for a writing. To this day no man has a right in England to a patent on an invention, and never has had. The granting of any patent on an invention in England is dependent entirely upon the pleasure of Edward the Seventh; and the patents themselves, when granted, each one of them sets forth that fact, and states that Edward the Seventh thinks on the whole that it will benefit the realm to grant this patent, and proceeds to grant it. But if Edward the Seventh and those who represent him choose to decline to issue a patent in pursuance of any particular application they can do so in entire conformity with the laws of England.

In respect to the protection of private property relevant to intellectual productions in the domain of books or musical compositions, this is the history in England: Prior to the time of Milton n.o.body had a right to publish anything in England without the permission of the Crown, and that permission was granted or refused, not with reference to the deserts or the merits of the author or the composer, but with reference to the opinion of the Crown as to whether or not the published thing would be beneficial or not beneficial to the public interests. And the Crown usually identified the public interests with the interests of the Crown, so that it suppressed what it desired to suppress and permitted to fly what it desired to be published.