Part 21

Page 30, line 1, the words "ninety days" should be changed to "three months" as more convenient and as excluding any contention whether or not Sundays and holidays are included in the ninety days. The similar provision of the patent law reads "three months."

Section 44 should be amended by inserting after "assignment", in line 12, the words: "and index the same under the name of the person by whom the original entry of copyright was made."

Section 45 should be amended so that lines 21 to 23 shall read as follows: "signee shall in all cases give in the statutory notice of copyright prescribed by this act the name of the person by whom the original entry of the copyright was made."

Without this provision the public will be put to great inconvenience in finding the original entry on which the copyright depends. The copyright notice should be of a clear and specific character so as to cause the public as little inconvenience and uncertainty as possible.

Paragraph 52 should be amended by striking out "provided" and all thereafter to the end of the paragraph in lines 2 and 3 of page 33. This provision is altogether too broad and the courts should be left free to determine what are conditions precedent to a valid copyright and whether there has been any breach of them.

Section 54 should be amended by striking out the words "the date of the" and inserting "that the affidavit states the dates of;" and in line 20 cancel the words "as stated in the said affidavit," and insert the words "which dates shall be given in the certificate."

Section 55 provides for the destruction of card catalogues. The wisdom of this provision is very doubtful. A single card catalogue for each class of copyright work would save an immense amount of time and error to the public, and to the Librarian in making searches. Instead of periodically destroying card catalogues, they should be added to and preserved. As soon as they are destroyed, instead of being able to make one examination of one part of the card catalogue, the public will be compelled to examine a great number of periodically made printed indexes. I therefore suggest that the words "and thereupon", to and including the word "intervals," lines 9 to 12 of page 34, be canceled.

As to the destruction of articles provided for in section 59, I suggest that the section be amended by inserting in line 10 of page 36, after the word "provided," the words "and with the authorization of the Committees on Patents of the Senate and of the House of Representatives."

Section 63 should be amended by striking out the words "sold or placed on" in line 7, and by inserting "made public, or sold publicly or privately, or placed on public."

As to section 64, I have to suggest that the present bill is supposed to be what may be termed a codification of the copyright law; if so, section 4966 of the Revised Statutes has no proper place outside of this bill. If there is anything desirable in the section it should be embodied in the bill at the proper place, and in doing so it should be made plain that the word "musical" where it first occurs in section 4966 means "musical-dramatic," meaning thereby a composition which is dependent upon representation or performance in the dramatic sense.

I do not believe that the people of this country are aware of what the musical composers and publishers are attempting to do in the way of securing monopolies.

If the public were aware that these persons, after having secured copyrights giving them the exclusive right of copying and publishing music for sale, and after having sold the copies of such music are attempting to secure laws by which they may impose further taxes upon the public for the use of such music by singing or playing, and are seeking to provide fines and terms of imprisonment for those members of the public who do not pay the additional tax, there will be such a storm of protests before your committees as could not be disregarded.

Section 4966 of the Revised Statutes should be repealed altogether, and so far as its provisions appear in this bill they should be limited to musical-dramatic compositions, and the provisions for damages other than actual damages and for imprisonment should be absolutely eliminated.

Very respectfully,

H. N. LOW.

The ACTING CHAIRMAN. Now we will hear the gentleman who represents the talking machines.

STATEMENT OF S. T. CAMERON, ESQ., REPRESENTING THE AMERICAN GRAPHOPHONE COMPANY, OF NEW YORK CITY.

Mr. CAMERON. Gentlemen, the first objection we have to the bill is, in our mind, the most serious one, and one which has been several times touched upon heretofore, so that I shall not attempt to go into any very great detail in discussing it here, but shall simply call attention to the fact that we object to it, and point out to you why, in connection with our particular business, it is especially important.

If you will turn to section 4 you will find that it reads:

That the works for which copyright may be secured under this act shall include all the works of an author.

Our position is that this is in direct contravention of the Constitution. If you will substitute in that clause the word used by the Constitution, and say that the works for which copyright may be secured under this act shall include all the "writings" of an author, then we do not object to that section.

Now, if you will take certain other sections of this bill, with that change made in section 4, and attempt to read them, particularly where the word "reproduce" occurs, or the word "reproductions" occurs, you will see the importance of it to us.

Take, for example, section 3, immediately above:

That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof.

If you read that word "reproductions" with the word "works" in section 4 changed to "writings," reproduction means a very different thing.

If you will turn to section 18, on page 14, subclause b, you will find this language:

Any arrangement or reproduction in some new form of a musical composition.

Mr. CHANEY. What do you understand the word "works" to mean in section 4?

Mr. CAMERON. It may mean anything that is reduced to writing, or that is not reduced to writing. It may be an oral speech that is absolutely wafted upon the winds of the air and never gets into permanent form. In proof of that we go to section 5, line 20: "Oral lectures, sermons, addresses."

The talking-machine art stands in a somewhat different position from that of the perforated music roll. You take a sheet of music and you have Sousa's or any other band play that music into the horn of an instrument, a patented apparatus. That machine engraves lines corresponding to what? To the sound waves produced by the band or the voice of the performer on the wax or other tablet.

Now, if you make that word "works" read "writings," as I understand, as the Supreme Court has interpreted the word "writings," it means this, in its broadest signification: That the idea of the author has been recorded in some tangible form, in such a way that another, through the eye, may have the idea of the author impressed upon his brain. That may be a painting; it may be the work of an artist. I think the Supreme Court has included a painting under that term because of that very fact, that the idea of the artist was recorded in some tangible form and, through the eye of the beholder, the idea of the artist was conveyed to the brain of the beholder. That is what a writing is, as I understand it, within the meaning of the Constitution.

Mr. CHANEY. The effect of your argument is, then, to limit the word to something that can be read by anybody?

Mr. CAMERON. Not necessarily by anybody.

Mr. CURRIER. But by somebody?

Mr. CAMERON. Yes. I can not read Sanskrit.

Mr. CHANEY. I mean to say, that can be read by persons understanding the same language?

Mr. CAMERON. Yes; something that is capable of conveying to the reader, if you may call him such, the idea of the author.

Mr. CHANEY. And in that respect it would cut out the music-roll proposition altogether?

Mr. CAMERON. As my predecessor has told you, there is a dispute in regard to that, and I am not qualified to state. As far as I have been able to analyze the evidence, the preponderance is against the idea that the music roll can be read. But I do know this: There is a graphophone record of the disk form [exhibiting record to the committee]. There is a graphophone record of the cylinder form [exhibiting record]. I defy anyone--I defy Mr. Sousa to read that and tell whether it is one of his marches or whether it is a speech of a Member of Congress. [Laughter.]

Mr. CHANEY. They are often very much alike. [Laughter.]

Mr. CAMERON. They are both musical. [Laughter.]

Mr. MCGAVIN. They are alike in volume of sound. [Laughter.]

Mr. CAMERON. I am not making this statement theoretically nor as a lawyer. I make it as an expert in this particular art. I have spent months and months of time with the microscope myself striving to do that very thing, and I know it can not be done.

Now, let us go one step further. What is it that makes that graphophonic record valuable? I can take Mr. Sousa's score and I can select some person, some alleged musician in this audience, and I can hand him a graphophone and tell him to make that record, and it would not be worth one cent upon the market. It takes the genius of a Sousa to play into the horn. It takes the voice of the magnificent singer to sing into the horn; and it takes the skill of the mechanician who is operating the graphophone to make a fine record that has a marketable value.

You ask me if I would use Sousa's march, make that record and sell it, and not pay him any royalty. I answer, "Yes; I would;" because I have paid him royalty. Whenever Mr. Sousa publishes one of his pieces of music and puts it out upon the market and I pay the price of that music, that sheet of music passes from under the monopoly, just as when I patent a cornet and sell the cornet to Mr. Sousa, and he pays the price for it, it passes out from under the patent monopoly, and he has a right to use it. Suppose I should come here and say to you that every time one of Mr. Sousa's cornet players played the cornet that I had sold to him that he should pay me royalty for having played it! That is what he is asking of you. That is not all.

Mr. Sousa himself does not scorn, as he pretended to the other day, these "infernal talking machines." The day has been when Mr. Sousa himself came with advance scores and begged to have them put upon the machines, in order that they might popularize his own music. Nor is that all. He to-day is under contract, and he plays into these "infernal machines" with his band, and he is contributing, as he told you a few days ago, to stifle these "beautiful young voices that now have disappeared throughout our city and our land." [Laughter.] He does it for the almighty dollar. That is what he is after, and he frankly told you so.

Mr. SOUSA. I am honest, anyway. [Laughter.]

Mr. CAMERON. You are; and, as I said to you the other day, I respect you for it. All the men urging this bill are not as honest as you are, sir.

Mr. CHANEY. That is neither here nor there. We give them all credit for being honest.

Mr. CAMERON. I would not have made that remark if I had not been interrupted.

It was stated a moment ago, and it is a fact of which I wanted to speak, that the intention here is to give everyone a fair show. The gentleman here on my left (Mr. Webb) suggested that this bill would not prohibit the perforated music rolls (and the same question would apply to the graphophonic cylinder) from the reproduction of those pieces of music or other copyrightable works which had appeared and been copyrighted prior to this act. In that he is in error. Section 3 says:

Any and all reproductions, or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting.

So that it does not go only to matter that is copyrighted subsequent to the passage of this act.

Mr. WEBB. I was speaking particularly of section g. That was the section that the gentleman was objecting to, and I referred to that particular portion.

Mr. CAMERON. The act, however, would apply by reason of section 3 to subsisting copyright.

Mr. WEBB. Yes; that may be so.

Mr. CAMERON. There is a situation in the talking-machine art that is perhaps divisible. You see two distinct forms of records. The company which I represent--the American Graphophone Company--makes both of those forms. There are a great many other companies, some of them making the machines and the records, and some of them making only the records. Some of them make the cylindrical form of record and some of them make the disk form of record; but there are two large, prominent companies, one of which makes the disk form of record and the other of which makes the cylindrical form of record. As I say, the company which I represent makes both.

Follow me now, if you please. There is also as close a musical trust, as has already been said to you by my predecessor, in this country as it is possible to form. That extends not only throughout this country, but throughout the world. There are a few musical geniuses who are able to stand above it and make them scramble for the genius. You have two of them with you to-day, Victor Herbert and John Philip Sousa. But John Philip Sousa can not speak for the struggling young composer who is not powerful enough to compel this trust to come to him instead of the young man going to the trust.

How does that effect us? Did you hear any opposition to this bill from the attorney of the Victor Talking Machine Company? No. They make the disk form of record. Have you heard any opposition from the National Phonograph Works--the Edison Company--in regard to this bill? No. They make the cylindrical form of record. Why does the Victor Talking Machine Company come here with such a virtuous show of regard for the author, and say they have no objection to this? Why is not the representative of the Edison Company--the National Phonograph Works--here opposing this bill? Because, as I charge, and I think I can substantiate it before I get through--not here, but I mean before the hearings before this committee are through--there is under way the same iniquitous proceeding that was outlined to you by my predecessor in connection with the music rolls.

Mr. PETTIT. That is absolutely untrue, as far as the Victor Talking Machine is concerned.

Mr. CAMERON. You can have a chance to reply when your time comes.

One company gets the exclusive right to make the disk form of record from copyrighted music, and the other the exclusive right to make the cylindrical form of record. Let us assume for a minute that what the gentleman says is literally true. Let us assume, I say. Is it not possible for just that combination to be made, and should the American Graphophone Company, which has millions of dollars invested in the enterprise, honestly and fairly built up under the laws of this country, money put in and money which it had an absolute right to presume the law would protect--should that company be placed in the position where it should be practically driven out of business by any such monopolistic combination? Will you gentlemen give them that opportunity?

I am not prepared to say that this music publishers' combination is the most gigantic trust on earth, but it is an absolutely close and effective trust. You may reply that we have the right to play and put upon these records all of the old noncopyrighted productions, those that are now within the public domain. To that I reply that the perforated music roll man or the talking machine man who attempts to rely solely upon old music will go out of business inside of eighteen months. He has got to meet the demand for the popular airs of the day. He has got to be able to produce Sousa's and Victor Herbert's latest productions. "I want what I want when I want it." That is where the public stands. [Laughter.] You wait three years instead of fifty, and where would we be?

Moreover, we go to Japan, we go to China, we go to the various countries of the earth, and make these records--get the original records. We do not make the original record on that disk. We do not make it upon that cylinder. We make an original record from the voice of the singer. That original record in the case of the cylinder is first very carefully covered with plumbago, to render it electrically conductive. It is then electroplated with copper; by applying cold, the original record is shrunk out, and you then have a mold, which has on its interior a perfect counterpart of the sound groove cut upon the face of the original record. We pour into that mold melted wax, or a composition that is called wax in the trade. When that is hot, it takes the impression of the mold and retains that until it sets; and as it cools it contracts, and we are then able to withdraw that from the mold, and after trimming the ends, that reproduction, that copy, is as perfect a record as the original one. If it were not so, we could not make and sell a record for fifty cents when we have to pay the singer from $500 to $1,000 or $3,000 for making the original record.

Mr. WEBB. I was going to ask, How do you get Mr. Sousa's pieces? Do you pay him for it?

Mr. CAMERON. We do not; no, sir.

Mr. WEBB. Who does?

Mr. CAMERON. The Victor Talking Machine Company has an exclusive contract with Mr. Sousa, and he gets paid for that. He did not tell you that the other day.

Mr. SOUSA. That is absolutely untrue.

Mr. CAMERON. If it is untrue I am ready to beg the gentleman's pardon. I had that information direct this morning, but I will gladly withdraw it upon Mr. Sousa's word--gladly. I do not want to make any misstatement.

Mr. SOUSA. I have never received one penny for my compositions from any kind of talking machine, nor have I ever made a contract with any of those companies.

Mr. CAMERON. I did not state that. I stated that Mr. Sousa, with his band, played into the horns of these instruments to make these records and was paid for doing it.

Mr. SOUSA. An organization known as "Sousa and his band," employed just as any other body of musicians, in which I have no part myself, plays into the instrument. That goes under arrangements made with the management of that organization to play anybody's compositions that these firms may elect; it may be a noncopyrighted piece or a copyrighted piece, or anything else.

Mr. CAMERON. I am very glad Mr. Sousa stated that. He says that he does not play his own music only, but his band stands ready to play any other man's music, copyrighted or not copyrighted, into these machines.

Mr. SOUSA. Not myself; no.

Senator LATIMER. I want to ask a question of Mr. Sousa, so as to clear the matter up a little further. The statement is that you have a band that plays into these instruments, and you, I understand, have denied that?

Mr. SOUSA. No, sir; I do not deny that "Sousa and his band," an organization known as "Sousa and his band," play for talking machines.

Senator LATIMER. Do I understand you to say that you have no connection with that band?

Mr. SOUSA. I am the director of that band, but I have no personal part in the performance of those pieces. I have never been in the gramophone company's office in my life.

Mr. MCGAVIN. Do you play for anyone else besides the Victor Talking Machine Company?

Mr. SOUSA. My manager has a contract with them for so many performances.

Senator LATIMER. You have an interest in the band and receive profit from it?

Mr. SOUSA. Yes; surely.

Mr. WEBB. You allow your name to be used all over the country?

Mr. SOUSA. In the performance of these pieces, certainly.

Mr. CAMERON. That was my charge.

Mr. HERBERT. In regard to the untruth the gentleman has stated----

The CHAIRMAN. Do you want to deny any statement that he has made?

Mr. HERBERT. Yes. In regard to this, naturally it would be inferred that it was the same case with me. In fact, he mentioned us two together. A band played into these instruments, calling itself "Victor Herbert's band," and I sued the talking machine company. That is what I got out of the company.

Mr. CAMERON. The gentleman misunderstood me. I have made no statement in regard to him, and I have no information in regard to him one way or the other.

Mr. CURRIER. He made no charge against you, Mr. Herbert.

Mr. HERBERT. Since our names have been linked all the time, I thought he intended what he said to apply to me also.

Mr. PETTIT. I would like to say to Mr. Cameron in regard to his statement about the Victor Company and Mr. Sousa, that whenever we have used Mr. Sousa's music, or rather whenever we used his band on Victor records, we always paid him for it--that is, we pay Mr. Sousa for playing.

Senator LATIMER. I want to bring out one point in connection with that. In making these records, if I understand, now, Mr. Sousa has a band that represents him, playing these pieces, and you pay for that music when you get it, or do you not?

Mr. CAMERON. Whoever employed Mr. Sousa pays for it.

Senator LATIMER. Then it is paid for when you get these records?

Mr. CAMERON. I do not wish to be misunderstood. We can take and do take one of Sousa's marches and have another band, with which Mr. Sousa is not connected, play, and we make the record; and in that case Mr. Sousa does not get any of the compensation whatever. None of that goes to him.

Mr. WEBB. But you do not advertise it as being played by Sousa's band?

Mr. CAMERON. Not at all. We advertise it as Sousa's march.

Mr. WEBB. You advertise it as a march by Sousa as a composer, but played by somebody else as the executant?

Mr. CAMERON. Yes. That is recognized as such a valuable thing to the composer, that John Philip Sousa has been to the office of the American Graphophone Company, in years gone by, with advance scores, and asked them to send them out, to advertise and help John Philip Sousa along. He will not deny it. Moreover, we are flooded to-day with artists that are struggling on the lower rounds of the ladder, that are not as high up as John Philip Sousa was a few years ago, either, begging us to do the same thing for them. I mention that to show you that even John Philip Sousa, before he got where he bestrode the musical world like a colossus, even he recognized the advertising value of the talking machine to a composer. We are not doing him such a great injury.

Mr. SOUSA. I would like to say, Mr. Chairman, that the gramophone, these talking machines, are really of very recent date. I believe the gentleman will agree with me when I say that if we go back fifteen years or sixteen years ago, we looked upon them purely as a toy. I remember the first one I saw here in this city where I was born. A gentleman had a man bark into it, and it was a remarkable thing to hear this thing bark----

The ACTING CHAIRMAN. I would suggest, Mr. Sousa, that you are taking up this gentleman's time. Unless you want to specifically deny something that he has said, or ask a question, it is hardly fair to him.

Mr. SOUSA. If I ever did allow the Gramophone Company to do it, it was because I did not think it was as important to them or to me as I do now.

Mr. CAMERON. Please do not confuse us with the Gramophone Company. It is a different thing.

Mr. CURRIER. Do you wish to deny that you are a musical colossus? [Laughter.]

Mr. SOUSA. No. I will admit that. [Laughter.]