Arguments before the Committee on Patents of the House of Representatives Part 57

This right to royalty should be allowed, not in virtue of any domination or supposed domination of the original copyright over the act of reproduction, but solely in virtue of the natural right of the composer to have his name and the t.i.tle which he has given to his music a.s.sociated therewith, howsoever it is produced, and of the fact that presumably a commercial value attaches to such name and t.i.tle, which will benefit the seller of the automatic reproducing device.

This right of royalty should therefore not run to the proprietor of the original copyright as such, but to the composer as such. If the composer has sold his copyright the purchaser should not, by virtue of that purchase, acquire any interest in the royalty of the composer for the use of his name and the t.i.tle of his music.

Of course the composer could sell this royalty right, and if he chose to sell it with the copyright and to the same person he could do so, but it should not pa.s.s without express mention. It should not pa.s.s as incident or appertaining to the copyright.

Such a provision would be precisely like the provision in the present statute with respect to translations. In the statute it is now provided, not that the copyright includes the right of translation, but that the author whose work has been copyrighted has the exclusive right of translation. He may sell his copyright, but such sale does not divest him of the monopoly of the translation nor vest such monopoly of translation in the a.s.signee of his copyright.

NOTE.--This point is somewhat fully developed in brief of the defendants in White-Smith Music Publis.h.i.+ng Company _v._ Apollo, copy of which brief is herewith furnished. (See p. 46 to 50, inclusive.) The position above stated and presented in brief, as above noted, was not controverted and was apparently fully conceded as a legal proposition, by counsel for the complainants in that suit. The ultimate propositions supported by the above contention in that suit were contested upon other grounds. Copy of complainants' brief upon this point will be furnished the committee later, with citation to the particular paragraphs sustaining the above statement.

Outside of and as an exception to the general cla.s.s of musical compositions to which the foregoing considerations are pertinent, there is a cla.s.s more closely related to automatic reproducing devices and in respect to which the composer has a more vital interest, viz:

Musical compositions not reproducible to the ear by a single human performer upon any instrument, but which can be produced by means of perforated rolls on an automatic instrument.

The staff notations of such compositions have practically no market value, except in case they are arranged in the forms of orchestral scores, so as to be produced by a plurality of instruments simultaneously played by different performers. The number of copies of such orchestral scores which will be required is necessarily very limited, and the sale of such staff notations offers a very limited field from which the composer may derive a just compensation for his work. The only source of revenue to the composer of such works is in the sale of the only means of playing these, viz, the perforated rolls.

It may be deemed proper and it will not be denied that it would be just that a composer of a musical composition of this cla.s.s who causes it to be embodied in the form of perforated roll, and who can derive a revenue from it practically only in this form, should be considered in the light of both composer and arranger, and as ent.i.tled to obtain original and independent copyright of the perforated roll, so as to control the composition absolutely in this form.

It is believed that it will not be difficult to frame a provision of the statute to do justice to this cla.s.s of composition, and which shall not trench upon the natural equity of the perforated roll arranger for other musical compositions, or upon the natural right of the public to derive the use of the automatic reproducing devices upon ordinary musical compositions, without requiring the consent of or paying tribute to the composer.

_4. As to duration of copyright._--The bill before your committees proposes a remarkable extension of the period of copyright beyond anything heretofore granted. This is believed to be contrary to sound public policy and of doubtful const.i.tutionality.

The Const.i.tution expressly limits the power of Congress in respect to their copyright protection to granting such protection "for limited periods." The term "limited" can have only a relative meaning, and the obvious meaning is limited with respect to or in comparison with the period during which the public will have desire or use for the copyrighted work. It is contemplated, evidently, that in compensation for the protection which the statute gives the composer for a limited period the public shall derive the unqualified use and benefit of the work for a remaining period. If there is no remaining period, the consideration for the protection has failed.

It needs no statistics to establish to the common knowledge of the committee that not one book in ten thousand has any commercial value fifty years after its publication. It will probably be safer to say that not one published work in a hundred thousand has any life after fifty years. If, therefore, the author is given the monopoly for fifty years, the public has nothing left to compensate it for that monopoly and protection.

Not one work in a million endures so as to have any value after one hundred years.

But the bill proposes, as to the great bulk of copyrightable matter, that the period of copyright shall be substantially one hundred years--fifty years after the death of the author.

It is respectfully submitted that this transcends the intention of the const.i.tutional limitation, and that the public would, by such an enactment, be deprived of substantially all the compensation which the Const.i.tution intended should be reserved to it in return for the copyright protection granted the author.

Whether the const.i.tutional limitation should or should not be so strictly applied, it seems beyond doubt that sound public policy forbids thus bartering away all the public benefit arising from the free right of publication after the expiration of copyright.

There is a second objection to the particular form in which the bill gives this extended copyright term. There does not appear to be any logical relation between the copyright protection and the duration of the life of the author. The privilege or protection granted is in no respect personal, except as to the revenue which may be derived.

There does not appear any reason why the work of a mature writer of 60, presumably capable of giving to the public compositions of peculiar value, especially if they relate to scientific or philosophical subjects, should receive less protection from his copyright than would be granted to a youth of 20, whose immature productions would obtain the protection of a presumably long life before him (during which he would often regret his immature publication).

Furthermore, the particular form or provision of the bill with respect to joint authors (line 24, p. 14; line 26, p. 15), when corrected to cure the obvious error in the phraseology and express the doubtless intended meaning, opens the way most obviously for practical fraud upon the public. An aged author, by a.s.sociating with himself in a nominal yet unimpeachably colorable way a youthful a.s.sistant, and obtaining copyright in their names as joint authors, will secure protection for his work concurrent with the life of the junior and fifty years thereafter, instead of concurrently with his own nearly ended life and subsequent fifty years.

It is obvious that joint authors.h.i.+p will become exceedingly popular if this paragraph of the bill is retained; and by the expedient of triple or quadruple authors.h.i.+p the chances of a long period will be greatly increased.

NOTE.--The very obvious error above indicated--line 24, page 14, line 2, page 15--has probably received the attention of the committee. The sentence supplying the connection from the commencement of section 18 now reads: "That the copyright secured by this act shall endure * * * in the case of joint authors, during their joint lives and for fifty years after the death of the last survivor of them." The gap which is left between the dates of death of the first and last dying of the joint authors is uncovered by the copyright under this form of statement. That is, the copyright would lapse upon the death of the first dying--the end of their joint lives--and revive at the death of the last survivor. The correction is obvious. Make the sentence read: "In the case of joint authors, until the death of the last survivor of them and for fifty years thereafter."

It is believed that the present term of copyright should not be disturbed unless to shorten it. Twenty-eight years, with a possible extension of fourteen, exceeds the actual life of a great majority of copyrighted publications and leaves the public nothing for its concession of temporary monopoly to the inventor; but it is, perhaps, a fair average, and at least it has caused no serious complaint upon either hand.

An exception should, however, be made in respect to any protection which may be given to anyone, whether composer or arranger, with respect to the automatic reproducing devices--such as perforated rolls--a.s.sociated so closely, as these devices necessarily are, with manufacture as distinguished from publications and with inventions as distinguished from literary or artistic works. The duration of the patents, whose owners must pay tribute to the holders of any form of copyright upon the perforated rolls, are granted only seventeen years' monopoly in which to derive all compensation for their inventions.

The copyright protection, if any, granted in any form upon perforated rolls should not exceed the term of patents--seventeen years.

_5. Verification of authors.h.i.+p and owners.h.i.+p should be required._--All our copyright laws. .h.i.therto have been unaccountably lax in respect to the requirements for making prima facie t.i.tle to copyright by virtue of authors.h.i.+p or proprietors.h.i.+p. It has only been necessary, and the present bill only makes it necessary, that the applicant for registration under the copyright statute should state, without verification of any sort, that he claims as the author or proprietor, as the case may be. So singularly loose is the requirement that the applicant is not even required to declare that he is the author or proprietor, but only to state that he claims as author.

How easily a fraudulently disposed claimant will satisfy his conscience in stating that he claims as the author, when he might hesitate to declare that he is, in fact, the author; and how much more easily one who conceives that he has a shadow of right to owners.h.i.+p will make the like statement that he claims as the proprietor when he would hesitate to declare that in fact he is the proprietor, is obvious without comment.

But it is certainly obvious that so vast and important a right as that conferred by the copyright statute should not be vested and given prima facie validity in anyone who has merely the effrontery to declare even that he is the owner or that he is the proprietor.

Why should less be required of the claimant to copyright than is required of the claimant to patent right?

The applicant for patent must make oath that he believes himself to be the first and original inventor, and his oath must also declare affirmatively the existence of all of the other conditions precedent to his right to obtain a patent. Why should not the author claiming copyright be subject to a similar requirement?

The a.s.signee of an inventor desiring a patent to issue to himself must file in the Patent Office an instrument in writing, signed by the inventor, conveying to the a.s.signee the whole or such portion of the interest as it is desired to have appear in the name of the a.s.signee upon the issue of the patent, and must in addition expressly request that the patent so issue to the a.s.signee. Why should less proof be required of one claiming copyright as proprietor?

It seems that no argument is necessary to enforce these suggestions. Under the present law and under the proposed bill any publisher obtaining possession of an author's ma.n.u.script under any color of right not involving him in larceny by reason of the possession may proceed to put the work in print and make application for copyright, not even averring that he is the proprietor, but stating that he claims as proprietor. The copyright certificate will issue, and his t.i.tle to the copyright will be prima facie established by the proceedings which he takes pursuant to the statute and the action of the copyright office therein; and the author, who may be ignorant of the proceedings, who may have only entered upon negotiations with the publisher without any intention of accepting the offers which may have been made, finds himself in the position of being obliged to contest a prima facie right on the part of the publisher to the copyright in his work, with the alternative that if the publisher's t.i.tle is not conceded to be good the author's right is lost by publication.

How many authors have succ.u.mbed to the embarra.s.sment of just this situation, deliberately created by greedy publishers, will never be known, but it is time that the statute which offers such inducement to greedy human nature to perpetrate frauds of this character should be remedied, and that the prima facie right acquired under copyright statutes should have behind it at least the support of the oath as to authors.h.i.+p and of an instrument of a.s.signment by the author to the party claiming as proprietor.

_6. Penal provisions._--It is respectfully submitted that the penal provisions of this statute are grossly disproportionate to the offenses or injuries to which they are directed, and obviously provocative of blackmail and coercion, and in some instances clearly unconst.i.tutional and unenforceable. No attempt will be made here to discuss all of these provisions, but attention will be directed only to those which bear upon the particular matter on behalf of which this presentation is made, namely, automatic reproducing devices; and without discussion it is suggested as too obvious for argument that a penalty of $10 for each and every infringing copy of a perforated roll found in the possession of the alleged infringer, his agents or employees, is grossly excessive, in view of the selling price of such rolls, which seldom exceeds $3, and probably averages not far from $1.

Severe penalties are only proper where the offense complained of can not be committed by accident or inadvertence, and where there can be no possible mistake as to a given act const.i.tuting the offense. In any case in which there might be room for difference of opinion, or where the offense might be committed unwittingly, such penalties are grossly improper.

But when the situation is such that the party ent.i.tled to complain or who might allege injury by reason of the alleged offense is to be the beneficiary of the penalty, and especially, as in the present bill, is to absorb the entire penalty, it is obviously contrary to reason and good morals to make the penalty materially exceed the damage, because there is thereby created a motive on the part of the person alleging injury to promote and encourage surrept.i.tiously the alleged offense until it has grown to large proportions, so that he may thereby reap a greater benefit from the trespa.s.s than he could possibly have reaped otherwise from the property trespa.s.sed upon.

In the case of the perforated rolls, all these objections to severe penalties are found concurrent, for--

(_a_) There will easily arise wide and honest difference of opinion as to whether two given perforated rolls are infringements, one of the other, and even whether a given perforated roll is an infringement of a particular musical composition (if the bill should be retained in such form as to make the original copyright apply to perforated rolls). It is well known that controversies are constantly arising upon the question of infringement as between two staff notations, the second author often claiming and frequently establis.h.i.+ng, contrary to the belief of the first, that his composition was an independent one, both having derived their theme from sources in the public domain.

A perforated roll presenting a composition only so similar to a public and copyrighted composition as to raise a question of infringement if it were a staff notation, instead of a perforated roll, will raise the same question as a perforated roll. The copyright owner will reap an advantage, it may be, of 10 per cent, upon the selling price of the sheet music, let us say 15 to 25 cents for every copy sold. He will reap a profit of $10 as a minimum upon every copy which he can find in the possession of the alleged infringer, his agents, or employees. Is there any doubt which remedy he will elect? Is there any doubt that he will await his opportunity for finding a large stock in the hands of the alleged infringer? Is there any doubt that a statute so framed would offer almost irresistible inducement to blackmail, which might be perpetrated under such circ.u.mstances?

The extravagant injustice of the provisions for impounding the "goods alleged to infringe" upon the commencement of a suit and for delivering up for destruction all copies, as well as all plates, molds, matrices, and other means for making infringing copies, have been well discussed by Mr. Walker. It is not deemed conceivable that your committee will seriously entertain such obviously oppressive legislation. On what possible pretense of equity or justice may a complainant, who thinks that his copyright has been infringed, upon that mere allegation lock up his compet.i.tor's stock of goods, while he on his part monopolizes the market during the pendency of a long litigation to determine the justice of that which may have been only a colorable charge at the start?

One's sense of justice is startled into horror at the suggestion of subsection d, on page 18 of the bill, that "all plates, molds, matrices, and other means for making infringing copies shall be delivered up for destruction," even if it is understood that this is to be done only at the conclusion of a suit. Whoever drafted this provision was either malicious or ignorant. (This statement is made with careful deliberation and we wish to repeat it: He was either malicious or ignorant.) Mr. Walker's presentation must make this clear. I make the same for my own client, which has an equipment involving an investment of many thousand dollars for producing perforated rolls, every element of which would enter into the production of each single roll, and all of which would be subject to destruction under the language quoted. Under this provision of the bill a single accidental, inadvertent infringement will subject that entire plant to destruction, though the copyright owner may not be damaged 50 cents.

Could anything be easier than for a malicious manufacturer to ruin his compet.i.tor by entrapping him into the manufacture of a single infringing roll and then bringing suit under this section and destroying his establishment?

Your committee will not doubt that the writer of this section was ignorant of this possibility, if it acquits him of being malicious in the drafting of this provision.

_7. Section 4966--Public performance._--Your committees have not failed to notice the single provision of section 64 of the bill which, "providing that all acts and parts of acts inconsistent with are hereby repealed," makes exception of section 4966, and in respect to that section provides that its provisions "are hereby confirmed and continued in force, anything contrary in this act notwithstanding."

The framers of this bill were more anxious than for anything else that the monopoly of public performance given by section 4966 should in no respect be weakened, and although they have embodied in this bill provisions in terms more stringent than those of that section, fearing that these more stringent provisions might not be const.i.tutional, or that by some slip they might be found to leave a loophole, they reversed the ordinary procedure, and, instead of making the bill as a new act, repealing all inconsistent acts, they make the section of the former act nullify the bill as to all inconsistent features.

It will occur to the committee that this is an unscientific mode of proceeding, and that the bill, when enacted into law, should be clear and consistent within itself, and not subject to nullification by its own terms in any respect.

But it is believed that section 4966 of the present statute has been tacitly treated as meaning something which the legislature in enacting it never intended, and that the provisions in the present bill, developing into express terms that which has been tacitly treated as involved in the terms of said section of the present law, crystalizes into dangerous permanency a defect which would have been eliminated from the present statute whenever the United States courts had occasion to review it.

Protection for public performance is justifiable only in respect to compositions which by their nature yield no considerable revenue to the author by the sale of copies or otherwise than by public performance. Dramatic compositions clearly fall within this cla.s.s. A dramatic composition is written primarily to be performed and only incidentally to be read. Some dramatic compositions may have such literary character that they would be bought to be read and so little dramatic quality that they will not be largely performed; but the dramatic composition whose value is in performance and not in reading gets little protection from the copyright statute without special provision giving monopoly of public performance. A hundred copies will supply all the actors who need it; no one else wants it; but a million people will be glad to see it performed and will pay high prices for their seats.

The dramatic writer must get his revenue from the million--not from the hundred--or he will fail of adequate compensation.

Recognizing this situation, Congress, in 1870, enacted the following provision:

"SEC. 4966. Any person publicly performing or representing any dramatic composition for which copyright has been obtained, without the consent of the proprietor or his heirs or a.s.signs, shall be liable," etc.