Part 20

"7. (_a_) Any person, at any time while a patent continues in force, may apply to the commissioner, by petition, for a license to make, construct, use, and sell the patented invention, and the commissioner shall, subject to general rules to be made for carrying out this section, hear the person applying and the owner of the patent, and if he is satisfied that the reasonable requirements of the public in reference to the invention have not been satisfied by reason of the neglect or refusal of the patentee or his legal representatives to make, construct, use, or sell the invention, or to grant licenses to others on reasonable terms to make, construct, use, or sell the same, may make an order under his hand and seal of the patent office requiring the owner of the patent to grant a license to the person applying therefor, in such form and upon such terms as to the duration of the license, the amount of the royalties, security for payment, and otherwise, as the commissioner, having regard to the nature of the invention and the circumstances of the case, deems just."

I instance this foreign law to show that under a system of jurisprudence exactly like our own it has been found best to limit rights heretofore granted in the most exclusive form, and provide for compelling the owners of such rights to deal reasonably and fairly with the public. This Canadian law relates to exclusive rights to inventions under letters patent, where the ascertainment of what is a just license fee or royalty is always more or less complicated and difficult. In the case of copyrights much simpler conditions prevail, the value of musical compositions are more easily measurable and there would be far less difficulty in arriving at a fair royalty by a contract between the parties or by arbitration, or, in the last resort, by the judgment of a circuit court. I have mentioned a circuit court merely for purpose of illustration. It would probably be more convenient to confer this jurisdiction on a United States district court.

It seems to me that under the conditions which confront your committees, there being on the one hand a desire to recompense musical composers, and on the other hand the necessity of defeating the unlawful combination which will have entrenched itself most securely if the bill should become a law including the objectionable paragraph which I have discussed, an amendment of the bill in some such way as above indicated is inevitable.

SPECIFIC AMENDMENT OF THE BILL.

I submit that in the interest of the public it is far better to correct any evil in the existing copyright law, which was pretty thoroughly revised not very many years ago, than to pass a revision of the law which uses so many new terms and words which have not received judicial interpretation, and which bill evidently requires itself revision and amendment in almost every section. It requires such amendment in detail in the first place to eliminate those matters which have been embodied in the bill for the purpose of most thoroughly carrying out the provisions of section 1 (g), upon which I have already commented. If it is necessary to eliminate the paragraph specified, it is also necessary to revise the bill in many other sections where corresponding matter appears.

In the second place, the bill requires amendment as to the term of copyright proposed, as to the damages for infringement, as to the effect which the certificate of the filing of the entry shall have, as to the way in which and the terms in which the notice of copyright shall be given, and as to broad and uncertain expressions which are found in many sections, which can have no good effect and which will only be productive of uncertainty, confusion, and litigation.

I am informed that a substitute bill will be submitted to your committees in the nature of specific amendments to the existing law to cure any evils which may exist therein and, among other things, to give reasonable compensation to authors or composers for the use of their works by the manufacturers of automatic mechanical reproducing devices. I believe that it will be preferable to thus amend existing law, leaving the great bulk of the law in those words and terms and provisions which there is no necessity of changing and which have become well understood by years of judicial interpretation.

I will however proceed to discuss the pending bill and point out the specific amendments which appear to be necessary in the interest of the public, both as to clearness and certainty of expression and as to the relative just claims of the author and of the public.

Section 1, paragraph (f), should be amended by striking out the words "or for purpose" and the remainder of line 10 and to the end of line 13, and by inserting the words "or to make any variation, adaptation, or arrangement thereof."

It will be seen that to retain this paragraph in the present form would be equivalent to retaining paragraph (g), because it was the intent in framing paragraph (f) to have the word "performance" cover the operation of an automatic mechanical device; and the words "arrangement or setting" were intended to include the production of a perforated music sheet.

Paragraph (g) should be eliminated for the reasons already given.

Paragraph (h) should be amended by inserting at the end thereof the words "amounting to a copy thereof."

It is obvious that this paragraph is altogether too broad and uncertain. The paragraph should only protect against infringements which are copies, and it must be left to judicial determination in the future as it has been in the past to say whether or not any particular abridgment, adaptation, or arrangement is a copy within the meaning of the law.

Section 2 appears to be substantially similar to section 36, and one of the two sections should be eliminated or they should be consolidated.

Section 3 should be amended by striking out "the copyrightable" and the rest of line 4, and to the end of line 8, and substituting "matters copyrighted after this act goes into effect."

So amended the section does not appear to be necessary in the bill, but on the other hand in its present form it will be seen at once that it is retroactive and very injurious, making in effect certain matters infringements of the copyright granted under existing law which are not infringements now and are within the public domain.

Section 4 is absurdly broad and indefinite and covers pastry or other works of a cook. It should be amended by inserting the word "literary" before the word "works," or by substituting the word "writings," which is used in the Constitution and is the preferable word to employ, or by inserting after the word "works" the words "mentioned in section 5 hereof."

In section 5 paragraph (h) should be eliminated. This paragraph was intended to cover perforated music sheets or talking-machine records which are to be otherwise provided for. As to other matters it may be said that if the reproductions referred to are copies of things already copyrighted, they are infringements; if not copies, they are works of art in themselves under paragraph (g) of section 5.

On page 4 "The above specifications shall," in line 8 and line 9 and line 10, to and including the words "nor shall," should be canceled, and in line 11, after "classification," insert the words "shall not."

It is obvious that an unlimited subject-matter of copyright is highly undesirable from the standpoint of the public.

In section 6, line 15, after "compilations," insert "or," and in the same line strike out "or other versions." These words are plainly unnecessary and are intended to have a capability of elastic interpretation unduly favorable to the author and prejudicial to the public.

In section 7, paragraph (b), the words "of a work" and the rest of line 6 and lines 7, 8, and 9, to and including the word "text," should be canceled. If a work has fallen into the public domain, even though subsequent to 1891, it would be retroactive to now bring it within the copyright law and deprive the public of its use.

Section 8, paragraph (a), in the interest of clearness should be amended by striking out the words "or cotemporaneously" in line 21, and by inserting after line 22 "shall publish his work within the limits of the United States cotemporaneously with its first publication elsewhere; or."

Section 9 should be amended by inserting after the word "Act," line 14, the words "and by the performance of the other conditions precedent mentioned in the act, and by entry of the title of the work as hereinafter provided." It is plain that a person does not "secure" copyright by the publication with notice, which is all that is mentioned in this section.

Section 10, line 24, the words "and such registration shall be prima facie evidence to ownership" should be struck out. There does not appear to be sufficient reason for giving a mere assertion of claim the prima facie standing of absolute ownership.

It would put upon the true author, whose production had been entered for copyright by another person, the burden of proof, and this section if not amended would be very susceptible of fraudulent use. I am inclined to think that it is advisable, certainly if the copyright entry is to be prima facie evidence of ownership, to require that the claim be verified before it is presented to the Librarian, and that false swearing to such a claim shall subject the affiant to the penalty for perjury.

Section 13, page 9, line 19, "and all his rights and privileges under said copyright shall thereafter be forfeited" should be canceled. These words might lead to the unjust forfeiture of a copyright if the false affidavit were made by the agent or printer without the knowledge of the author or owner. Also the words seem superfluous. If a condition precedent has not been performed, the right is lost by operation of law without these words. To insert them implies that the provisions of section 13 are not conditions precedent to obtaining a valid copyright.

In line 24 the word "and" should be substituted for "or;" and at the end of line 25 the words "if it has been published" should be inserted. It is very desirable that all the facts upon which the copyright depends should be clearly stated when possible.

Section 14, line 2, the words "or the," and the following matter down to, but not including the word "accompanied," in lines 5 and 6, should be canceled, and the words "with the date of entry of the copyright" should be inserted.

The notice of copyright must be clear and in such usual words, not signs which hardly anyone will understand, as are intelligible to the public. I consider it highly important that the date of copyright, including the year, month, and day, should appear in the notice, and also the name of the person by whom the original entry is made in the copyright office. The indexes will be kept by these names, and any subsequent entry or transfer should always be indexed under such original names. These remarks apply also to sections 44 and 45 hereafter considered.

In line 10, after "some," the words "uncovered and" should be inserted.

In line 13, after "name," the words "as in the original entry of copyright" should be inserted.

Line 19, the word "its" should be changed to "the," and in line 20, after "following," the words "of each separate volume" should be inserted; and in line 24, after "accessible," the word "uncovered" should be inserted.

Page 11, line 3 should be stricken out or amended to cure its indefiniteness as to the meaning of the word "composite."

In line 4, the word "musical" should be changed to "musical-dramatic."

It has never been intended by the copyright law to use the word "performance," excepting of such works as are only useful when represented or "performed" in a dramatic sense. The word "dramatic" has not always seemed sufficiently broad, and the words "musical composition" have often been added to include operas, oratorios, and musical works that are not purely dramatic, and yet are partially so. It is submitted that it has never been the intention of the law to make the mere singing of a song from copyrighted notes that have been paid for, or the playing of music, infringements of copyright, and it is believed that this section will carry out the full intent of the law if the word "dramatic" be coupled with the word "musical," as above indicated.

In view of the use of the word "performance" in other parts of this bill for the purpose of including the use of automatic mechanical devices, it should be made clear that the word "performance," in line 5, has nothing beyond its ordinary significance. I suggest that this can best be attained by striking out the word "performance," in line 5, and inserting the word "representation."

Section 15 should be amended by striking out the words "if, by reason" and the rest of line 11 and lines 12 and 13.

It is plain that these words in the bill leave an open door for free publication which brings a work within the public domain, and subsequent monopoly of the work upon a mere allegation of error. The Librarian has not the facilities or legal machinery to try such question of error, and it should be left to the courts to determine whether there has been an error or omission, and whether by reason thereof any condition precedent for a valid copyright has been left unperformed.

Page 12, line 13, the words "bulk of the" should be stricken out. These words are uncertain and would allow the proprietor to omit the notice from 49 per cent of the edition. This would clearly amount to insufficient notice to the public and could be made the instrument of fraud. Line 14 and the remainder of the section are entirely sufficient for the purpose without the words "bulk of the."

Section 17, line 22, the words "be extended to" should be canceled, and at the end of line 24 the words "such term beginning with the date of filing the request for the reservation of the copyright," should be inserted.

There appears to be no reason for granting more than the specific term, which the law will provide, in the case which section 17 is intended to cover.

Section 18 relates to the term of copyright.

The whole system provided in the Constitution is for the benefit of the public, the intent is to accumulate for the use of the public, matters of literature, art, and invention. The stimulus in the way of a reward given by the public in return for these matters is subsidiary to the main object. The reward consists in "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The objection to the term provided in the bill is that it is unconscionably long. It may easily amount to a hundred years or more, during which time the public will have paid tribute to the author for something which will be so old fashioned as to be useless to the public when the copyright has expired.

The word "limited" in the Constitution shows that the framers of that instrument had in mind to secure for the public certain benefits after the time had expired. To provide such a long copyright term as the authors seek to obtain in this bill would practically defeat the object of the said clause of the Constitution and the intention of its framers. I submit that it could only be considered for a moment on the ground that it is a matter of indifference to the public because the works so to be protected are entirely useless in themselves. I do not think there is any sufficient reason for lengthening the term--twenty-eight years with an extension of fourteen years--provided by existing law.

In another respect this section is bad in making the length of the term dependent upon an event which is uncertain in advance, and of which no public accessible record may be made when it occurs; that is to say, the death of the author. I see no reason why a young author should have longer protection than an old author, and the provision would leave open to publishers a door of fraud by securing copyrights for the productions of old authors in the name of some younger person.

The objection to a long term especially applies to music which depends almost entirely upon fashion and taste, and these soon change and the music becomes useless to the public. In my opinion, purely musical productions should have a relatively short term of copyright, but I have not considered the subject sufficiently to be justified in fixing any precise number of years.

But as to all copyrights it is my conviction that the interest of the public unquestionably requires that they be granted for a definite term of years, and that, if an extension is provided, the extension should be for a fixed and definite time. It is only this which enables the public to know, upon reading a notice of the copyright, when the monopoly will terminate.

If for any reason it should seem wiser to make the term dependent in its length upon the death of an author, then the continuance of the copyright should depend upon definite evidence being filed in the copyright office showing positively the date of death.

At the end of section 18, page 15, line 8, after "name," the words "_Provided_, That in such published work the notice of copyright be given as required in this act" should be inserted.

Section 19 should, in my opinion, be canceled. It is retroactive in its character. Definite contracts have been entered into between authors and the public with respect to matters already copyrighted, and it would impair the obligations of those contracts to provide any renewal or extension of such copyrights. It has already been agreed between such authors and the public at what time their copyrighted works shall pass into the public domain.

Recurring to lines 3 and 4 of page 15, I submit that they should be canceled, so that the copyright shall extend for a definite number of years after the date of original entry. There seems to be no sound reason for giving an author a longer copyright, longer by a year, if he makes his entry on the 2d of January, than another author will have who enters his copyright on the 30th of December preceding.

Section 21 should be canceled, as it gives, in effect, copyright privileges where the conditions precedent required by this act have not been performed.

Section 22, line 14, is too broadly worded for the benefit of the authors of this bill, and the word "reproduction" should be canceled and the words "copy or representation" should be inserted.

In lines 22 and 23 the words "such fraudulent" and the rest of the section should be canceled, and the words "copies which are infringements is hereby prohibited."

Section 23, paragraph (b), should be canceled and made to read:

"(b) To pay to the copyright proprietor damages for the infringement."

As the paragraph now reads, it gives double damages. The proprietor should receive damages which will be judicially ascertained in the ordinary way, either by estimating the profits which the infringer has made, or by estimating the damages or loss which the proprietor has suffered. If there is no actual damage it should not be provided that $250 should be recovered, and if the damages are greater than $5,000 there is no sound reason for limiting them to the latter sum.

For the same reasons lines 18 to 24 on page 17, and lines 1 to 7 on page 18, should be canceled.

Paragraph (c) on page 18 should be amended by striking out the word "alleged", in line 10, and inserting "shown to the satisfaction of the court."

Section 25 should be amended by inserting at the end of line 23 "and with intent to deprive the owner of the copyright of lawful profit."

The word "willfully" does not appear to make the section sufficiently clear, and it is submitted that an infringer should not be held guilty of a misdemeanor unless he have the intent specified in the suggested amendment.

After line 6 on page 19 the following words should be inserted:

"_Provided_, That any person who performs the alleged infringing acts under a mistake of fact or law shall not be deemed to be a willful infringer."

The alleged infringer may have good reason to think that conditions precedent have not been performed and that no valid copyright exists; he may be under a mistake as to when the term expires; he may be of the opinion that what he has produced is not a copy, and he may perform his alleged infringing acts under advice of counsel. It does not seem proper under such circumstances to hold him to be a willful infringer and guilty of a misdemeanor.

In line 14 of page 19, after "knowingly," the following words should be inserted: "and with fraudulent intent."

Page 20, line 9, before "publish," the following words should be inserted: "send notice of such seizure by registered mail to the person to whom the article seized is consigned or directed, and shall."

Section 27, line 24, after "first," there should be inserted the words "mailing or".

Section 29, lines 6 and 7, the words "supposed to contain" should be canceled, and the words "which contains" should be inserted. It is unreasonable to permit a postmaster to detain a package upon a mere supposition.

In line 9, before "mail," there should be inserted the word "registered."

Page 24, lines 16 and 17, the words "not more than one copy at one time" should be canceled, and in line 17 the word "or" changed to "and."

At the end of section 32 the following should be inserted:

"_Provided_, That the owner of the right to perform any copyrighted work by means of any automatic mechanical device shall not have the remedy by injunction herein provided until the amount of fair and reasonable royalty for such use shall have been ascertained by express contract between the parties, or by judgment of a court, and shall be due and not paid."

Section 35, line 8, the word "full" should be canceled; and in line 9, after "allowed," there should be inserted "according to the practice of law and equity."

In many cases it might be inequitable to allow costs, and the court should be left free to exercise its legal discretion.

Section 36, line 11, the word "common" should be inserted before the word "law." This section should be compared with section 2, and they should be consolidated, or preferably they should both be omitted as unnecessary and as being outside of the purview of this act.

Section 38, line 23, there should be inserted after the word "musical" the word "-dramatic."

Line 25, the word "make" should be canceled and there should be inserted the words "produce by."

It is evident that the right to make belongs to the patentee of the device.