Part 11

Mr. WEBB. I understand that; but you, a man who is expert in these matters, can not state to us what other points would be covered than public exhibition or offering the same for sale.

Mr. BETHUNE. I am not a reproducer; I am a lawyer, and the reproducers may be able to advise me.

Mr. CHANEY. A lawyer is an originator always. [Laughter.]

The CHAIRMAN. You spoke earlier in your remarks about the decisions of courts on this subject.

Mr. BETHUNE. Yes.

The CHAIRMAN. And the lack of uniformity of the decisions relative to publication. Is not that fact due to the conditions which you now describe, and which have been suggested by different members of the committee--because what may be publication in one copyrightable article may not be publication in another?

Mr. BETHUNE. Yes, sir. For that reason----

The CHAIRMAN. Now, then, if the courts, with this attempt to define publication, have found difficulty and have differed, is it not because of the different character of the articles that have been involved in the litigation before the courts?

Mr. BETHUNE. No; it is the same article that I have in mind. There is one Massachusetts case, a Federal case, where, in the case of a public exhibition of a painting, the circuit court of appeals in the first district held that that was a publication of the painting.

Mr. CAMPBELL. Was the exhibition given for hire, for profit?

Mr. BETHUNE. Yes; my recollection is that it was a public exhibition for hire. Subsequently another case----

Senator MALLORY. It held that that constituted publication?

Mr. BETHUNE. That that constituted publication.

Senator MALLORY. It did not define what publication was any more than that?

Mr. BETHUNE. No; it simply decided that that particular public exhibition was a publication of the work.

The CHAIRMAN. In other words, it decided that in that case special acts constituted a publication?

Mr. BETHUNE. Yes, sir. Now, the Federal courts in New York State have held the contrary view in respect of a public exhibition of a painting for hire (in the Workmeister cases). Those cases will probably go up to the Supreme Court, but they may not.

The CHAIRMAN. What was the argument or the reasoning of the court in the latter decision?

Mr. BETHUNE. The Massachusetts case was distinguished, if my memory is correct, on the fine point that in one case there was a reservation--in the one case the artist made some reservation in respect of the use of the painting when he loaned it to the exhibition, and in the other case he did not; but it is just those fine points which we want to eliminate.

Senator MALLORY. From what you say, I think it would be well for us to avoid the word "publication" and state just what we want without using the word "publication" at all, if we are going to give rise to diverse decisions and litigation. I think we had better express it, perhaps, in the language which you have--"after sale or exhibition for hire" and "public exhibition."

Mr. BETHUNE. Well, there you do limit it.

Senator MALLORY. Just express it in those words.

Mr. BETHUNE. There you do limit distinctly what would be, in effect, publication, though you do not call it so, and that we do not want.

The CHAIRMAN. We would be very glad if you would submit your proposed amendment to the committee later.

Mr. PUTNAM. Mr. Chairman, I understand that Mr. W. A. Livingstone, representing certain reproducing interests, and Mr. McDonald, representing the National Photographers' Copyright League, wish to have a note recorded--not to argue a point, but simply to have a note recorded in the minutes.

STATEMENT OF WILLIAM A. LIVINGSTONE, ESQ., OF DETROIT, MICH.

Mr. LIVINGSTONE. Mr. Chairman, I simply wish to state two things in contradiction of the last speaker. I stand here for a large reproductive interest, and consequently we are speaking also from the standpoint of the reproducer. We dissent very strongly from his opinion and we support the bill in respect to notice as it now is.

That is all we wish to say now.

Mr. WEBB. You want the word "accessible" kept in just as it is now?

Mr. LIVINGSTONE. Yes, sir.

Mr. WEBB. What do you understand that to mean?

Mr. LIVINGSTONE. I understand that to imply that that notice must be easily get-at-able in the painting or other object.

Mr. WEBB. Well, "accessible" means "get-at-able."

Mr. LIVINGSTONE. Yes, sir.

Mr. WEBB. But you have not got "easily accessible" in here. You have got "accessible," simply, whether with difficulty or whether with ease.

Mr. LIVINGSTONE. In the case of a painting or work of art it is very easy--you can hardly conceive of a case where, if the notice is accessible at all, it can not be obtained.

Mr. WEBB. Well, why should you object to the word "uncovered"--"accessible and uncovered?"

Mr. LIVINGSTONE. Because if you include the word "uncovered" you then impose some other conditions which are the result of that term, as, for example, you may compel the notice to be on the face. I will give a concrete illustration that is easily understood. Suppose you have a very small miniature which is very delicately painted. You can not put that notice across the face of the miniature, and yet you can take the miniature in your hands and turn it over and find the notice in an accessible place with ease.

Mr. WEBB. Do you think, though, that "accessible and uncovered" means putting it on the front of the painting or photograph? Could it not be on the back and be still uncovered on the back?

Mr. LIVINGSTONE. The painting may be hanging on the wall.

Mr. WEBB. It would still be uncovered.

Mr. LIVINGSTONE. Oh, not necessarily; no, sir.

Mr. WEBB. As far as the painting itself is concerned, I do not know why you all quibble between "accessible" and "uncovered," and I did not know what was the real difficulty between you on this word "accessible." The word "visible" has been suggested.

Mr. LIVINGSTONE. Another case would be this: In certain kinds of sculptures you could not possibly put that notice upon the face of the sculpture without a serious marring of it, without a serious impairment of its commercial value. The law even now takes cognizance of this, and permits you, in those cases, to put it on the bottom or on the back. It may not necessarily be uncovered, but it is accessible.

STATEMENT OF PIRIE MACDONALD, ESQ., OF THE PHOTOGRAPHERS' COPYRIGHT LEAGUE.

Mr. PIRIE MACDONALD. We wish to stand for the word "accessible" as it has been evolved by the Librarian, and we would wish that in case the word "uncovered" is used it be very strictly defined; that it be defined as to when this picture should be uncovered. If, for example--and remember, please, that I am speaking merely for photographers, and not as a reproductionist--suppose I were to make a photograph of someone, and were to properly and duly mark it with the notice as prescribed by law (for example, a photograph of yourself), and you were to decide that you objected to the notice as being a defacement, and you were to take it on yourself not to take the notice from the picture (because that would be prevented by the proposed law) but to cover it up. It is your property, unquestionably; and it gets to the hand of a reproducer and he says, "This is not uncovered." Therefore I suggest that in case by any chance the word "uncovered" is used, it be very strictly defined.

Mr. PUTNAM. Mr. Chairman, there are a great many people here who are interested in behalf of the provisions in the bill proposing protection against the mechanical devices for the reproduction of music to the ear. There are many here who are opposed to the provisions of the bill, and those who are its proponents are in favor of them. They are, of course, very desirous to near the arguments advanced by those who are against them, and, if it be your pleasure, I would suggest that it would be only fair to hear from the opponents of those provisions as soon as possible. I have called as many as I knew of the participants in the conference who cared to say anything at this stage in favor of the bill. One additional participant to those who have spoken, representing the directory publishers--I think that association is not here--states, in a letter:

I take this opportunity to say that our association fully indorses the bill as presented to Congress, with the single exception of the final paragraph of section 13.

That is the paragraph requiring that in the affidavit as to manufacture the place in which the work was done and the establishment shall be specified. I simply ask that that go into the record as coming from the American Directory Publishers.

The CHAIRMAN. What reason is given for that request?

Mr. PUTNAM. I understand the reason to be that it would be an undue burden upon the publishers.

The CHAIRMAN. In what respect?

Mr. PUTNAM. I think perhaps the publishers ought to answer that. It is a specification on which they alleged to the conferences might be inconvenient and difficult in some cases. In the case of directories, the directory publishers said that they were in the habit of having their work done at a great many establishments. Of our general legal advisers, as you have asked me, I feel that I ought to state this: The chairman of the advisory committee of the American Bar Association is not here to state it himself, as he stated it to us: but he was of the opinion that it was not relevant to the affidavit. But I do not see that at this point, sir, this question can be discussed, because the persons who are opposed to this provision are not fully represented here.

Of those on the list of participants that cared to be heard at this point I know of no others, except that Mr. Sullivan, who represents the International Typographical Union, not caring to make any argument or statement, but possibly caring to do so later, if he may, would like to say just a word in behalf of the general principles of the bill, or on behalf of the bill as a whole--the feeling of the Typographical Union as to the bill.

STATEMENT OF J. J. SULLIVAN, ESQ., REPRESENTING THE INTERNATIONAL TYPOGRAPHICAL UNION.

Mr. SULLIVAN. Senators and Representatives, I do not desire to take up any of your time just at this hour, as there are many gentlemen here from out of town who wish to be heard before the committee. I therefore desire to be heard at some future time, as I understand you will have a session of this committee to-morrow; and on behalf of the organization, the International Typographical Union, which I have the honor to represent, I particularly protest against any modification of section 13, known as the manufacturing clause of the copyright law.

Mr. CHANEY. Is that in this bill or the present law?

Mr. CURRIER. This bill.

Mr. SULLIVAN. I refer to section 13, known as the manufacturing clause of the old act and copied in the new one. Speaking also on behalf of my associates from New York, representing 7,500 typographers, we protest against any modification of this law.

Mr. PUTNAM. You must make it clear whether you refer to this bill or to the existing law. Are you satisfied with the bill?

Mr. SULLIVAN. I refer to the revised bill.

Mr. PUTNAM. You are satisfied with the bill as it stands?

Mr. SULLIVAN. The Senate bill.

Mr. CURRIER. You are referring simply to section 13?

Mr. SULLIVAN. Section 13; yes. That is, the old section.

The CHAIRMAN. Do you approve in all respects the bill as introduced in the Senate and House?

Mr. SULLIVAN. No, Senator; I respectfully beg to differ in this respect--that either through inadvertence or slight mistake in the draft of the bill that has been submitted to the Representatives taking part in these conferences there are six lines bracketed.

Mr. PUTNAM. They are not bracketed in the official bill. They were left out of the bill as introduced.

Mr. SULLIVAN. I respectfully request that section 13 of the bill as presented to the Representatives taking part in the conferences here be revised in the Senate bill so as to include the paragraph that is bracketed in the draft of the bill sent out to the delegates.

Mr. PUTNAM. Well, Mr. Sullivan, I want you to be clear about this. The bill as introduced into Congress did not contain those brackets. That was a draft sent out some time ago, and the bill as introduced in Congress has not those brackets.

Mr. SULLIVAN. (after examining the official copy of the bill). That is on page 9; that is all right.

Mr. CURRIER. It is right as it is, as we understand?

Mr. SULLIVAN. It is right as it is. That is all right, then; we have no objection, Senator, to the bill as it stands. I only wish to say at this time that that bill has already passed the lower branch of Congress.

Mr. CURRIER. You refer to section 13?

Mr. SULLIVAN. Yes, sir; and Representative Currier knows it has also passed his committee. We respectfully submit the resolution to your hands, and I desire to be heard on it to-morrow.

Mr. PUTNAM. Mr. Chairman, with your permission Mr. G. Howlett Davis, of New York, desires to be heard as representing inventors who have allied themselves particularly to these devices for the reproduction of music to the ear. Mr. Davis's suggestion was that as the composers had been heard as the creators of the music in the first instance, one who is engaged as an inventor in the production of these devices should first be heard on the other side.

Mr. S. T. CAMERON. May it please the committee, Mr. Chairman, I am one of those who are representing the interests of the talking machines of the country.

The CHAIRMAN. Whom do you represent?

Mr. CAMERON. I represent the American Graphophone Company of New York.

The CHAIRMAN. Do you desire to be heard by the committee?

Mr. CAMERON. Yes, sir. I wish to say at this point, however, sir, that with all due respect to the Librarian, it would seem to me that there is no good reason existing why he should depart from the mode of procedure in connection with these talking machines that has been taken in all the rest of the bill--that is, that those who are the proponents for the changes in this bill that are of a very radical nature and very radically different from existing law should present to the committee their reasons for such changes, before hearing from the opponents of the bill.

Mr. PUTNAM. I had no intention, Mr. Chairman, of departing from that mode of procedure. I understood that two gentlemen in behalf of these provisions had been heard, Mr. Sousa and Mr. Herbert; and I had also been informed that the other interests, including those of the publishers, did not care to be heard at this point; they were content to have the provision before you as the affirmative. I desire now that the opponents of the bill should have the fullest opportunity, at the earliest possible moment, to present their views to the committee. The opponents have not advised me as to whether they had agreed upon any method of presenting their case. I simply had this suggestion from Mr. Davis which I laid before you, and the fact that Mr. O'Connell, representing ten manufacturers of automatic piano players, also wishes to be heard.

Mr. PAUL H. CROMELIN. Mr. Chairman, as the representative of the Columbia Phonograph Company, I should like to know whether it is the purpose of this committee to sit to-morrow. I had promised certain gentlemen in New York City to telephone them between half after 12 to-day and 1 o'clock, so that they can leave on the Congressional Limited and be here to-morrow, if it is your intention to-morrow to hear the opponents of this bill.

The CHAIRMAN (after consultation with other members of the committee). We will meet to-morrow morning at 10 o'clock.

Mr. CROMELIN. And may I ask also, Mr. Chairman, if it is your intention to continue these proceedings this afternoon?

The CHAIRMAN. We will continue this session until about half past 1.

Mr. CROMELIN. Thank you very much.

Mr. ALBERT H. WALKER. Mr. Chairman, I wish to inquire whether the committee is willing to sit also on Saturday to continue the hearings?

The CHAIRMAN (after further consultation). It is the purpose of the committee, if possible, to finish its hearings to-morrow.

Mr. WALKER. I wish to suggest to the committee that this bill is incomparably the most important measure that has been before any Committee on Patents of either House of the American Congress at any time since the civil war, and I think it is the most important measure that ever was before any Committee on Patents of the American Congress since the enactment of the patent law in 1836.

The CHAIRMAN. It is not the purpose of the committee to deprive anyone who desires a hearing of that privilege. On the contrary, the committee will sit so long as anyone desires to be heard, within any sort of reason.

Mr. WALKER. If the Senator will permit me one moment, I am prepared and have been preparing myself through a rather long lifetime to elucidate the subject of copyright law; and I appear before the committee in the interests of the American people and also in the interests of the authors.

The CHAIRMAN. How much time do you wish, Mr. Walker?

Mr. WALKER. I wish at least two hours, and I can take it at any time at the convenience of the committee, at any day.

The CHAIRMAN (after further consultation with the other members of the committee). We will hear you, Mr. Walker, one hour to-morrow morning, if we are unable to reach you to-day, with the privilege of submitting in writing your views if you so desire.

Mr. WALKER. If the chairman will allow me to make the suggestion, if I were to be heard to-morrow for an hour, that would probably cut off other gentlemen who would wish to speak much shorter than that, and it would be very convenient for me, if the committee is to sit at all on Saturday, to hear other gentlemen on Friday and let me speak on Saturday.

The CHAIRMAN. If we are compelled to hold a session on Saturday, we will hear you on that day; but we hope that the gentlemen who are present to present their views to the committee will finish in such time as will permit you to have your hour to-morrow morning.

Mr. WALKER. Then, is it understood that I am to speak first to-morrow morning?

The CHAIRMAN. I think not.

Mr. CURRIER. There are some other gentlemen here who will want five or ten minutes.

The CHAIRMAN. Inasmuch as you prefer to go over until Saturday, if convenient to the committee, I should think that the members from out of town and the other gentlemen here should be first to address the committee.

Mr. WALKER. That is very agreeable to me.

Mr. SOUSA. I sincerely trust, Mr. Chairman, that in Mr. Walker's discussion it will not be permitted to discuss the copyright of the past. We are not after that. We want a copyright of the future. If he will talk about things that will be for the benefit of the future, I think you should give him the time; but if he is going into a discussion of what was done a hundred or two hundred or three hundred years ago, we do not want it. [Laughter.] That is the past; we want the future.

Mr. CROMELIN. Mr. Chairman, I would like to give notice, as the representative of the Columbia Phonograph Company, representing large interests which are vitally affected by this bill; as the representative of a company which knew nothing of this proposed legislation before the publication took place on the 31st of May; as the representative of a company that was not invited to take part in the so-called conferences, notwithstanding the fact that its industry is so broad that it embraces the world, that I would like to be heard, and that it will probably take at least one hour or two hours to present this subject in all of its ramifications to your committee. It was my understanding that the committee would adjourn to-day at 12 or 1 o'clock, and in view of the fact that the opponents of this measure have had to come together quickly, and that they have had no time to organize, while on the other hand those who are proposing it have had conferences for more than one year, I propose, sir, that it would be meet and proper at this time to adjourn this conference until to-morrow morning, giving the opponents of the measure a chance to decide upon a plan of action for presenting this matter to your committee, and that we will come here to-morrow morning and present the various views of those who are interested.

I therefore suggest the advisability of a postponement until to-morrow morning or an adjournment.

The CHAIRMAN. Do I understand that all the opponents of the provisions of this law relative to talking-machine devices can be heard within one hour?

Mr. CROMELIN. No, sir. I speak on behalf of myself, for my own industry only. There are others----

The CHAIRMAN. How many desire a hearing?

Mr. CROMELIN. I believe that there are at least a half a dozen gentlemen who desire a hearing.

The CHAIRMAN. Does each want one hour?

Mr. CROMELIN. I do not know how long it will take them to present their views.

The CHAIRMAN. We established a rule at the beginning of the hearings yesterday limiting the statements to ten minutes each.

Mr. CROMELIN. I understood, Mr. Chairman, that that was in regard to the proponents of the measure. I did not understand that you intended to limit those persons whose interests are vitally affected by this measure to ten minutes to reply. I do not believe that is the intention of this committee; and I submit the question to the honorable chairman.

Mr. CHANEY. Mr. Chairman, it is entirely out of all reason to expect us to remember what these gentlemen will say. We will want a good deal of it in typewriting anyhow; and they can simply give a synopsis of an argument here as to what they want to do, and we must expect them to submit to the committee in writing for our use such matters as they seem to think important for our consideration when we are giving the bill consideration. They do not need so long a time to make a speech here. Let them prepare their matter and hand it in.

Mr. CROMELIN. Mr. Chairman, we hope to file briefs in addition to the oral statements.

Mr. CURRIER. As far as the House committee is concerned there is no expectation that there will be a report of this bill at this session of the Congress.

Mr. CROMELIN. Will the gentleman be good enough to state that positively on behalf of the committee, so that the interests that ought to be represented here to-day, and whose representatives must remain away, can be satisfied on that point?

Mr. CURRIER. I can state it most positively, as far as the House is concerned.

Mr. CROMELIN. I thank you very much.

The CHAIRMAN. And the same is true so far as the Senate is concerned.

Mr. CROMELIN. I thank you very much. We have endeavored to get that information from the Librarian, and he stated yesterday that it was highly improbable, but he could not state----

Mr. PUTNAM. Mr. Cromelin, if you will excuse me, I said that I had no right to give any such prophecy on the part of the committee; it was not within my control. You will do me the justice to say, Mr. Cromelin, that I added that when the copyright office asked for this bill to be introduced it had no expectation itself of any possibility of its being reported at this session.

Mr. CROMELIN. Thank you very much for the information I have gotten from the Librarian and from the chairmen of the respective committees. That assures us on the point, for the first time, that this bill will not be reported at this session of Congress.

(After a consultation between the members of the committees:)