Arguments before the Committee on Patents of the House of Representatives Part 48

At the time of the Commonwealth publication became free and was free, but there was still no notion of any exclusive right to publish a particular literary or musical composition inhering in the author of that composition; and that right never did begin and never was heard of in England until the reign of Anne, when Parliament pa.s.sed a statute establis.h.i.+ng such a right for a limited time.

In 1769 a copyright which had been issued under the statute of Anne had expired, and the owner of that copyright determined to test the question in the English courts as to whether or not there was a perpetual right of copyright under the common law of England, regardless of the statute of Anne, and the owners of that copyright brought suit for its infringement after the term established by the statute of Anne had expired; and the question whether such a common-law right existed or not came before the court of king's bench when Lord Mansfield was chief justice of that court. The court of king's bench decided, as an academic proposition, that there had been anciently an exclusive right to an intellectual production under the laws of England. That was, however, a purely speculative statement.

They could not point to the time when anybody a.s.serted any such right or to an instance when anybody had acquiesced in it. They simply took the ground, as an academic proposition, that anciently there had been such a right. They also decided, however, that whether that right existed or not, it had been ended by the statute of Anne, and that the statute of Anne circ.u.mscribed the right to the limited time provided for by that statute.

From that decision or the court of king's bench the plaintiff appealed to the House of Lords, sitting in its judicial capacity. We sometimes have the notion that when the House of Lords sits in its judicial capacity all the peers of the Realm--500 in number--a.s.semble together and hear the arguments and render a final decision, but it is not so.

Only the law lords partic.i.p.ate; and if an ordinary n.o.bleman should venture to sit when the House of Lords was sitting in its judicial capacity he would be hooted out of the room, and his presence would be made to appear to him to be extremely unwelcome. The number of law lords that sat at the time of the hearing of that argument was 11, and 6 of them rendered the opinion that the statute of Anne was the only foundation known to the law of England for exclusive right to an intellectual production, and that therefore the plaintiff was not ent.i.tled to recover.

That was the situation of the laws of England at the time of the foundation of our Union, at the time of the Declaration of Independence, and at the time of the framing of our Const.i.tution. In 1787 our Const.i.tution was framed, and the fathers inserted in that Const.i.tution this provision:

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

That is the only foundation that exists for the patent laws of the United States, and it is the only foundation that exists for the copyright laws of the United States. It is true that a copyright when it is issued in accordance with the statute made in pursuance of that Const.i.tution is property, but it is not property in the historic sense of property. It entirely lacks the notion of continuity. It entirely lacks the notion of permanency. It is a species of property created, and not arising out of the circ.u.mstances of civilization and human life, as property in general has always done, long preceding governments. It is a species of property created by the law-making power, and a species of property created by the law-making power in a matter not inherently subject to property right.

In creating that particular property the const.i.tutional convention was influenced by this consideration: We will not grant a permanent property right in any intellectual production, because in our judgment that would be inconsistent with the progress of civilization as a whole, but we can consistently, with the progress of civilization as a whole, grant a limited property right in an intellectual production.

Therefore they did provide in the Const.i.tution that though Congress might give to authors an exclusive right, the right must be limited in point of duration, and therefore Congress has not the slightest power to grant a permanent right in any intellectual production.

Victor Herbert may hereafter, as I hope he may, rival some of the great composers of the past and produce music far better than the splendid music that he has thus far produced, but if he does it will be impossible for Congress to reward him and his heirs with a permanent absolute property right in any such intellectual production.

The best we can do, Mr. Herbert, is to give you a limited right to your intellectual production. That limited right is limited not only in respect of duration, but it is limited in respect of quality, in respect of formal expression, and it is limited thus: There shall be, according to the const.i.tutional provision, an exclusive right for a limited time and for a limited form of expression, and that limited form of expression is defined by the word "writings."

Mr. Chairman and gentlemen of the committee, I have spent my laborious life as a lawyer, a scholar, an inventor, an author, and a lecturer. I have delivered hundreds of addresses that never were reduced to writing. I have delivered but few that were. In so far as I delivered those lectures that were never reduced to writing, I am not ent.i.tled, either by law or by ethical principles, to any exclusive right. I am ent.i.tled to an exclusive right to my intellectual productions only when I reduce them to writing and file them in the office of the Librarian of Congress, where they will remain a permanent monument, and can be handed down to future times and can be read and availed of by my contemporaries.

The Const.i.tutional Convention wisely provided that if the American people are to grant a monopoly in an intellectual production the man who makes that intellectual production shall give it to the American people; and he gives it to the American people by first furnis.h.i.+ng them the fullest information of its character, in the case of a patent, or in the case of a copyright he gives it to the American people by consenting to the terms upon which it was issued, namely, that it shall be free after the expiration of the limited time for which it was granted. Further than that, in taking out a copyright, or in taking out a patent, the man consents that the copyright shall be confined to his writing, and shall not extend to any other form of expression of his intellectual idea.

I am not alone in this. The Supreme Court of the United States is with me.

Mr. CHANEY. Just a moment: It has not occurred to me that this is not either a question of continuity of property or a question of the quality of the property. It is simply a question of just to what extent people are to be given the control of their own writings, and as to just through what different forms they will be able to trace their property.

Mr. WALKER. That is the question, and that is the exact question which I am going to address myself to now.

Mr. CHANEY. Very well.

Mr. WALKER. The case of the "Trade-Mark Cases" was decided by the Supreme Court of the United States in 1880, and it is reported in 100 United States Reports, at page 94. In that case the owners of certain collocations of words which they were using as trade-marks sought to sustain the validity of their trade-mark under the copyright law, holding that those words const.i.tuted writings which were copyrightable and which had been copyrighted.

The Supreme Court unanimously decided that the statute which they invoked, which statute was abundantly broad enough to cover that provision, was unconst.i.tutional, because although these collocations of words were writings in the literal sense they were not writings within the sense of the Const.i.tution. In so deciding, the Supreme Court narrowed down the meaning of the word "writings" instead of extending it, by holding that the Const.i.tution gives a monopoly not to writings in general but only to such writings as have some literary character and permanent value in themselves. This is the language of Justice Miller:

And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.

The case which the Supreme Court had before it on this subject next is the Sarony case, decided in 1883, and reported in 111 U.S., page 58.

Mr. CHANEY. We had that yesterday.

Mr. WALKER. In that case Mr. Sarony sought to sustain the validity of a copyright upon a photograph of that then very ornamental gentleman, Oscar Wilde. It turned out that in this picture which Mr. Sarony personally took of Oscar Wilde, in his esthetic costume at the time he captured the hearts of the American women by his highly ornamental appearance [laughter], Mr. Sarony had personally posed Oscar Wilde, so as to give him a peculiar beauty, which might not have been developed by the ordinary photographer; and the Supreme Court of the United States sustained the validity of that particular copyright upon the particular ground that Mr. Sarony put particular skill in the posing of the man so as to produce a particularly artistic effect.

But if I should go into a photograph gallery and have somebody pose me who did not have that skill--and also because the subject would not admit of it, and would not produce any particularly attractive effect--and the attempt should be made to copyright that photograph, he would go right up against the decision of the Supreme Court in the Sarony case, and he would be told that the copyright was invalid, because it did not involve any intellectual effort in its production.

Mr. CHANEY. I think your picture would influence the committee quite as much as Oscar Wilde's. [Laughter.]

Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for himself; and I am living still.

Mr. CHANEY. I hope you will live long, sir.

Mr. WALKER. Thank you.

The next case, and the last case in which these matters have been before the Supreme Court, is the case of Higgins _v._ Keuffel, decided by that tribunal in the October term of 1890, and reported in 140 U.S.

In that case a copyright had been issued, in strict conformity with the copyright law of 1874, upon a label used for manufacturing purposes, as a label on a bottle or a package. There was no doubt whatever but what the copyright was in strict conformity with the statute, but the Supreme Court held that the statute was unconst.i.tutional, because although the label was a writing, it was not a writing in the sense that the Supreme Court had defined that word in the Trade-Mark cases. Here Justice Field delivered the opinion of the court, and he said:

The clause of the Const.i.tution under which Congress is authorized to legislate for the protection of authors and inventors is contained in the eighth section of Article 1, which declares that "the Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in the Trade-Mark cases, where the court said that "while the word 'writing' may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind."

In the year 1888, a suit was brought in the United States circuit court for the eastern district of Ma.s.sachusetts for the purpose of subjecting a perforated roll like one of these [exhibiting] to the domain of a copyright upon a sheet of music which had been lawfully and regularly copyrighted. That case was elaborately litigated, and was the subject of argument on both sides before his honor, Judge Colt, then the circuit judge and now the chief judge of the circuit court of appeals for the first judicial circuit.

Judge Colt in that case, commonly called the McTamanny case, gave an elaborate and learned decision to the effect that this perforated paper roll, or any sheet of perforated paper like it, intended for the mechanical reproduction of a tune, did not infringe a copyright upon the tune thus reproduced.

That was in 1888, and that decision was universally acquiesced in by all the judges and all the people of the United States for thirteen years. During that thirteen years a number of gentlemen devoted themselves to making the machines, pianolas, or whatnot, that are capable of being used with these perforated sheets; and among those gentlemen is the modest and excellent inventor, Mr. Davis, who appeared before the committee yesterday. Those men proceeded in full reliance upon the decision of Judge Colt, acquiesced in by everybody that they had a perfect right to perforate those sheets of music and use them in mechanical playing instruments; and great amounts of ingenuity have been devoted to the development of that particular art, and large amounts of capital have been devoted to it, in full reliance upon the decision of Judge Colt, in which everybody acquiesced. But the aeolian Company, of Meriden, Conn.--and in the statement that I am about to make I am going to state what is true; I can not prove the statements here to-day, but I could prove them if the committee should sit and take testimony and send for persons and papers----

Senator SMOOT. You can file the proof, can you not, Mr. Walker?

Mr. WALKER. It would be like a big litigation to do so, and it would be putting a very heavy expense upon me that I would hardly be called upon to bear. But I can tell you how I know.

Mr. CURRIER. If the statements that you are to make now are not true, gentlemen can controvert them.

Mr. WALKER. Certainly. They have had chances to controvert them heretofore. This is not the first time that I am making these statements in public. I have made them in court over and over again, and they have pa.s.sed entirely unchallenged, because they are perfectly true.

The aeolian Company made certain contracts with a large number of members, and I think with every one of the members of the Musical Publishers' a.s.sociation----

Mr. BURKAN. I beg to deny that----

Mr. CURRIER. Later on you can be heard, if you wish.

Mr. WALKER. A gentleman showed me one of the contracts to-day, and I have it in my pocket.

Mr. BURKAN. It was the one offered in evidence.

Mr. WALKER. I can not be interrupted. I am telling what I know to be true.

The CHAIRMAN. You shall not be interrupted, Mr. Walker.

Mr. WALKER. Thank you. The aeolian Company made contracts with nearly all or all of the members of the Musical Publishers' a.s.sociation. Each of those contracts provided as follows: That the particular member of the Music Publishers' a.s.sociation granted to the aeolian Company the exclusive right to make perforated sheets of paper to play the tunes represented by all of the music published by that particular publisher; and that contract also provided that the aeolian Company should never pay any money for that exclusive right until the aeolian Company succeeded in getting some court to decide that the copyright laws covered the perforated paper roll. That contract also provided that the aeolian Company should pay all the expenses of some test suit made for the purpose of testing that question.

In pursuance of that contract, the aeolian Company caused the White-Smith Music Publis.h.i.+ng Company to bring a suit against the Apollo Company, in the southern district of New York, upon a couple of little negro melodies, one of which was ent.i.tled "Little Cotton Dolly"

and the other of which was ent.i.tled "The Kentucky Babe Schottische." I fancy that the copyright on both those negro melodies was not worth as much as a dollar and a half, and that certainly $3 would cover the value of both of them; but they answered the purpose of a test case.

The aeolian Company poured out money like water in that litigation, and endeavored to secure from the United States courts a reversal of the decision of Judge Colt, which had been made many years before. In the course of that litigation I was retained by the Automusic Perforating Company, which was not a party to this litigation, but which had an interest a hundred times greater than that of the nominal defendant.

In pursuance of that retainer I presented a pet.i.tion to Judge Hazel, before whom the case was heard, and in that pet.i.tion I asked that my client be made a defendant. And I set forth in that pet.i.tion the whole aeolian scheme in full, with all the clearness of statement of which I was capable, and it was sworn to by my client.

When that statement was filed before the judge, a printed copy was served upon the attorney for the aeolian Company, Mr. Charles E.

Hughes, one of the ablest men in the United States, who has distinguished himself in the recent insurance investigation in New York. Anything that he does not think of is not likely to be worth thinking of, and when he put in, as he did, an elaborate brief in reply to my pet.i.tion, he did not controvert one solitary word of the statement of evidence set forth in the pet.i.tion about the inherent character of the aeolian scheme, which he would have done if he could have done so.