Part 23
These conferences have been going on for a year past. The fact that they were being held, their purpose, and the associations participating in them was freely published. Among these associations were the composers and the music publishers. In the Apollo suit then pending they were trying to secure protection of this sort under existing law. There was every reason to suppose that they would urge it in the new statute. Did any of you ever inquire of us whether they were doing so? As long ago as last December the President announced to Congress, and in the most public way to the country, that the bill had already been prepared. Did you ask us for it? Did you even ask whether such a bill would be likely to include any such provisions? As long ago as January the music trade journals began to refer to the fact that it would do so. Did you then ask leave to come to the next conference? Did you ask even as to the character of the provisions? Did you communicate with the Copyright Office in any way in the matter? You know you did not.
The fact that you did not is not to prejudice you in any way, and the fact that you did not participate in the conferences I have myself emphasized to the committee to your advantage, pointing out that these provisions had been inserted without discussion at the conferences by any interest naturally adverse to them. The fact is to your advantage. I earnestly suggest that you avoid giving it a twist such as Mr. Cameron gave it yesterday; I mean by such expression as "star chamber proceedings." We can't let such imputations against the Government stand uncorrected. But we hate to have to divert attention from the main issue in order to correct them. The main issue is the merit of these provisions. We are as anxious as is the committee to know your substantial objections to them. And our interest is absolutely identical with that of the committee in seeing that the objections you show shall have due value and effect.
(The following letter was subsequently written by Mr. Putnam, and by direction of the chairman made part of the record:)
JUNE 16, 1906.
Messrs. CHAIRMEN: In my remarks to the representatives of the talking machine and perforated roll interests at the hearing of June 9 I stated that Mr. Thomae had not been "invited" to the conferences. Of course he was invited or he could not have attended. What I meant was that he was not among those originally invited or in our list of those naturally entitled to be present.
I had thought the distinction sufficiently clear from the context; but I find that it was not.
The chief purpose of my reference to him and to General Griffin was not, of course, to excuse or explain their presence, but to indicate how readily access to the conference could be secured by a request to the copyright office.
Very respectfully,
HERBERT PUTNAM, _Librarian of Congress_.
The CHAIRMEN OF THE COMMITTEES ON PATENTS OF THE UNITED STATES SENATE AND HOUSE OF REPRESENTATIVES.
Mr. CURRIER. I wish to say that last winter some time Mr. Griffin, who is interested in one of the perforated-roll concerns, called at the committee room and talked about this matter, and I advised him at that time to see Mr. Solberg and Mr. Putnam. The committee clerk has had some correspondence with him since that time, and other gentlemen connected with that same business, I suppose, have been into the committee room to make inquiries regarding this matter pretty nearly every week for months.
Mr. CAMERON. I would like to say that I do not even know who Mr. Griffin is.
Mr. CURRIER. He is the vice-president of the General Electric Company. I think he lives in Brooklyn and is connected with some perforated-roll company.
Mr. CAMERON. I wish to point out that the remarks that I made were in connection with the American Graphophone Company and the automatic talking machine, and not the perforated-roll business. That is the matter that is involved in these suits, not the talking machines.
Mr. BURKAN. Mr. Griffin represents the Edison Company, and they manufacture talking machines.
Mr. DAVIS. Mr. Griffin does not represent the Edison Company, and he is a director of the Perforated Music Roll Company, who operated under my patents. General Griffin is now in Europe, and this notice which I referred to yesterday, in which I stated that notice was given me that my license would be canceled in case this bill passed, came from Mr. Henderson, the acting manager of the Perforated Music Roll Company, on behalf of General Griffin and other directors.
Mr. Henderson notified me that the passage of this act would put them out of business. He also stated to me that General Griffin had stated to him that he attended these conferences, and that he considered them logrolling proceedings, and that in time he would take action to oppose them. But at present General Griffin is in Europe. I am sure, from his remarks, that he would oppose this measure in the strongest possible way.
Mr. CURRIER. I have no doubt that he would. He gave me so to understand.
Mr. CHANEY. I think it is due to this record to say that the ultimate responsibility about this whole matter rests with Congress, and that these matters are all simply advisory, to help us to the proper conclusion and result, and that none of these gentlemen are going to be deprived of an opportunity to express themselves in whatever way they please, and to say whatever they may have to say, and that, so far as we are concerned, there is no star-chamber proceeding about it, and no logrolling business about it. We are here simply to get advice the best we can, and therefore we shall undertake to hear everybody.
The CHAIRMAN. Mr. Chaney is entirely right. The sentiments that he has expressed have been freely stated by the committee during the past three or four days that we have been in session. The committees of the Senate and the House are willing, and will be willing, to hear anyone who has objections to or who is in favor of this bill at any time within any sort of reason. It seems to me that it is to little purpose, so far as the committees are concerned, that there should be any controversy between anyone regarding the past. Who is the next witness?
Mr. CURRIER. I might say that it was for that reason that both committees decided to make no effort to report this bill at this session, but to let it go over until next winter, in order that people could have an opportunity during vacation to file briefs and such statements as they might desire to offer.
The CHAIRMAN. That is the precise purpose of the statement made by Mr. Currier in behalf of the House committee at the first session or the second, and by myself in behalf of the Senate committee.
Who is the gentleman that desires to be heard further?
Mr. PUTNAM. Mr. Cromelin.
The CHAIRMAN. You have how many minutes?
Mr. CROMELIN. I understand that I have half an hour.
The CHAIRMAN. You were limited, two days ago, to one hour for your enterprises. Mr. O'Connell had a little over an hour, and I am told that after I was compelled to leave for the Senate yesterday somebody representing these interests had fifteen minutes. We will give you fifteen minutes, with the privilege of submitting in writing any further statement that you desire to make.
Mr. CURRIER. It is necessary to do that, for the reason that two gentlemen are on the way here from Chicago who want to be heard this morning, representing the same interests that you represent.
Mr. SERVEN. I present, Mr. Chairman, a letter from the chairman of the copyright committee of the Music Publishers' Association, explaining how Mr. Thomae, who was criticised yesterday as being one of their delegates, came to have a seat with them in the conferences. It occurred to me that it would save time to have it read for the information of these gentlemen.
The CHAIRMAN. You may put it in the record.
(The letter referred to is as follows:)
The CHAIRMAN OF THE JOINT SENATE AND HOUSE COMMITTEES ON PATENTS. _Washington, D.C._
DEAR SIR: I beg to make reply to an accusation against the Music Publishers' Association of the United States yesterday by the manufacturers of mechanical perforated music rolls, cylinders, and disks, in which they claimed our association had corralled into its ranks, by promise and contracts, the Victor Talking Machine Company, of Camden, N.J. They further claimed that the Librarian of Congress had made no attempt to seek them out and give them representation at the various conferences he had called for the purpose of securing suggestions from organizations of authors, composers, and others interested in receiving copyright protection for their productions.
I beg to state that the copyright department during the interim between the first and second conferences conferred with me and asked if the talking machine and music roll manufacturers had an organization. I replied that I did not know but would inquire about it. About that time I met Mr. R. L. Thomae, a representative of the Victor Talking Machine Company, who had just drafted a bill with the view of presenting it to Congress, for protection on musical compositions for which his company had secured the right, having expended about $35,000 for well-known artists who had sung in the records for them. They wanted protection from the pirates in their own business from copying such valuable subjects. As a result of our talk Mr. Thomae decided to drop the bill and secure protection in the new copyright draft which was then being formulated.
Mr. Thomae and myself made a trip to Washington, called on the copyright department, and it was agreed, in view of the fact that the talking machine people had no organization, that the delegates from the Music Publishers' Association should be increased from two to three, provided the third member was some representative of the talking-machine interests. After conferring with the president of the association it was decided to do this, and Mr. Thomae was selected as such representative. We believe that the talking machine people should have as good protection as ourselves on their original or characteristic works embodying the personalities and instrumentation of their artists, bands, orchestras, etc., employed by them.
We hereby declare that the Victor Talking Machine Company has no contracts of any kind whatsoever with any member of the Music Publishers' Association of the United States in regard to any future purchase for use of compositions belonging to us. This statement will explain in detail how the Victor Talking Machine Company came to be associated with the Music Publishers' Association in the copyright conferences held to aid in drafting the bill here under consideration. All statements to the contrary are not substantiated by the facts.
On behalf of the Music Publishers' Association of the United States, whose list of members is attached, I beg to remain,
Sincerely, yours,
GEORGE W. FURNISS, _Chairman Copyright Committee_.
_Members Music Publishers' Association, June, 1905 to 1906._
Allbright Music Company, Chicago, Ill. Anthony Brothers, Fall River, Mass. Ascher, Emil, 24 East Twenty-first street, New York. Biglow & Main Company, 135 Fifth avenue, New York. Bloom, Sol, Forty-second street and Broadway, New York. Boosey & Co., 9 East Seventeenth street, New York. Bouvier, A. J., Fall River, Mass. Chandler-Held Company, 439 Fulton street, Brooklyn, N.Y. Ditson, Chas. H., & Co., 867 Broadway, New York. Ditson, J. E., & Co., Philadelphia, Pa. Ditson, Oliver, Company, Boston, Mass. Ellis, Jno. F., & Co., Washington, D.C. Feist, Leo, 134 West Thirty-seventh street, New York. Fischer, Carl, 6 Fourth avenue, New York. Fischer, J., & Bro., 7 Bible House, New York. Frain Publishing Company, 20 West Fifteenth street, New York. Francis, Day, & Hunter, New York. Goggan, Thos., & Bro., Galveston, Tex. Gordon, H. S., 1241 Broadway, New York. Groene, J. C., & Co., Cincinnati, Ohio. Hald, J. R., Company, 337 Wabash avenue, Chicago, III. Harms, T. B., Company, 126 West Forty-fourth street, New York. Harris, Chas. K., 31 West Thirty-first street, New York. Haviland, F. B., Publishing Company, 125 West Thirty-seventh street, New York. Jacobs, Walter, 165 Tremont street, Boston, Mass. Lyon & Healy, 199 Wabash avenue, Chicago, Ill. Mills, F. A., 48 West Twenty-ninth street, New York. Molineux, Geo., 150 Fifth avenue, New York. Novello, Ewer, & Co., 21 East Seventeenth street, New York. Parks, J. A., Company, York, Nebr. Paull, E. T., Music Company, 46 West Twenty-eighth street, New York. Remick, J. H., & Co., 45 West Twenty-eighth street, New York. Rohlfing Sons' Music Company, Milwaukee, Wis. Schmidt, Arthur P., 146 Boylston street, Boston, Mass. Schuberth, E., Company, 11 East Twenty-second street, New York. Sherman, Clay, & Co., San Francisco, Cal. Stern, J. W., & Co., 34 East Twenty-first street, New York. Summy, Clayton F., Company, Chicago, Ill. Swisher, M. D., 115 South Tenth street, Philadelphia, Pa. Thiebes-Stierlin Music Company, St. Louis, Mo. Thompson, C. W., & Co., 13 West street, Boston, Mass. Thompson Music Company, 169 Wabash avenue, Chicago, Ill. Vandersloot Music Company, Williamsport, Pa. Victor-Keemer Company, Chicago, Ill. White-Smith Music Publishing Company, Boston, Mass. White-Smith Music Publishing Company, Chicago, Ill. White-Smith Music Publishing Company, 13 East Seventeenth street, New York. Whitmark, M., & Sons, 144 West Thirty-seventh street, New York. Witzmann, E., & Co., Memphis, Tenn. Wood Music Company, The B. F., Boston, Mass. York Music Company (A. von Tilzer, manager), New York.
STATEMENT OF PAUL H. CROMELIN, ESQ.
Mr. CROMELIN. Before proceeding, I would like to make this point clear: That Mr. O'Connell yesterday, in appearing before your committee, was representing the perforated-roll interests. I represent the talking-machine interests, which means more in dollar capitalization than the perforated-roll interests. I trust, while I shall endeavor to finish my remarks in fifteen or twenty minutes, that if General Walker is willing, you will extend my time to half an hour.
The CHAIRMAN. We are compelled to limit you absolutely to fifteen minutes.
Mr. CROMELIN. Very well, sir.
Mr. Chairman and gentlemen of the committee, on behalf of the Columbia Phonograph Company and the Columbia Phonograph Company, General, sole sales agents for the American Graphophone Company, I protest against those portions of the proposed copyright law by which it is proposed to extend the copyright protection to reproductions to the ear, so as to include under the term "writings," as this term is used in the Constitution of the United States in the protection of authors and composers in their writings, mechanical or other reproductions to the ear; and, in particular, in so far as this bill may be construed to cover talking machine sound records in any form soever.
In view of the fact that you are going to limit me to fifteen minutes, I think it best that I should state specifically my reasons for opposing this bill, and I have put them down in writing. I have fifteen specific reasons, and I would request that during the time I am stating these reasons I shall not be interrupted. I invite the committee at the conclusion of my statement of these specific reasons to ask any questions they wish, and I request permission to appear before the committees at some future time, during the recess of Congress, to explain in detail all the statements that are made. Without attempting to elucidate, gentlemen:
First. We protest that such legislation, in so far as it relates to talking machine sound records of any kind, is unconstitutional.
Second. That such legislation is against public policy and directly contrary to the spirit and progress of the times.
Third. That the demand for such legislation does not emanate from the great mass of the musical authors (composers), nor is it demanded by them, but has been conceived by certain selfish individuals who have conspired together to form and create a giant monopoly, the like of which the world has never known.
Fourth. That such legislation, instead of being in the interest of the composers, is directly opposed to their real interest, which is to have the greatest possible distribution of such records as the best means for creating a demand for their sheet music. Abundant evidence can be furnished to sustain this fact, if desired.
Mr. CURRIER. It is desired.
Mr. CROMELIN. Fifth. That it is class legislation in the interests of the few as opposed to the enjoyment and happiness of the masses, whose rights seem regularly to have been lost sight of during its preparation, and that it is particularly vicious when the rights of the poor are considered.
Sixth. That in so far as the question of copyright must of necessity be viewed from an international standpoint, it is inadmissible, intolerable, and distinctly un-American to grant to foreign composers the right to extract toll from every American citizen where such right is denied such foreigner at home in his own land and is denied to American composers abroad.
I hope during the recess to explain my connection with this matter. I was the representative of my company in Berlin, Germany, for four years, and had occasion to appear in this very matter; and I want to warn you gentlemen against what happened there. I trust that freedom will be given to all mechanical musical instruments and that no Æolian monopoly will be able to tack on a provision which will give them perforated-roll rights and exclusive rights. I propose to show that this monopoly is not of a national character, but the attempt to create it is an international conspiracy.
Seventh. That such legislation is directly contrary to all recent legislation in foreign countries, the most important of which is the act of the German Reichstag in 1901, by which perfect freedom is given to use copyrighted works for the purpose of mechanical reproduction; and by which, by reason of an interpretation announced by the minister of justice prior to the third reading of the bill, the right to record and reproduce any copyrighted work by means of talking machines was expressly permitted.
Eighth. That such legislation is contrary to the spirit of the Berne convention.
Ninth. That in no other country is substantially like protection afforded to composers, but that such protection has been universally denied.
Tenth. That even if such rights were granted under the laws of Great Britain, Germany, France, Belgium, and other countries, which they are not, it is beyond the power of Congress to do other than that which it is expressly permitted to do under our Constitution, and the only way by which such a law could be enacted which would stand the test of the highest court of judicial inquiry would be by an amendment to the Constitution of the United States. On behalf of my company, I protest against being plunged into such long and expensive litigation as would necessarily ensue if this bill becomes a law, unless the necessity for the same is urgent, and this I emphatically deny.
Eleventh. That such legislation is in direct contradiction to all recent judicial decisions on the subject in this country and abroad in which common law rights and statutory rights of authors and composers, their scope, extent, intent, and purpose have been discussed, the most noted of which in this country is the decision handed down by the United States circuit court of appeals, second circuit, during the last week of May, in the Æolian suit against the Apollo Company, Judges Lacombe, Townsend, and Coxe, without a dissenting voice, approving and upholding Judge Hazel's opinion rendered in the court below sustaining the contention that the perforated roll is not a violation of the copyright, and it is interesting to note that the court went out of its way to say:
The argument that because the roll is a notation or record of the music it is, therefore, a copy would apply to the disks of the phonograph * * * which it must be admitted is not a copy of the sheet music.
In England the same position is taken by the courts, the leading and most recent case being Boosey _v._ Whight, in which it was clearly held that the perforated roll was not a violation of the copyright. In Belgium, by decree of the fourth chamber of the court of appeals in Brussels, December 29, 1905, in the case of Massenet and Puccini, composers, _v._ Ullman & Co. and Pathe Frères, manufacturers, in dismissing the suit, with costs, the court uses this language--I want to say to you, gentlemen, that this was a graphophone case:
Considering that these apparatus can not be assimilated to the writing, or the notation by an engraving process, of the thoughts of the author; that they have nothing in common with the conventional signs permitting reading or comprehension of the work to which they are related; that isolated from the rest of the instrument they remain in the actual state of human knowledge, without any utility, that they are only one organ of an instrument of execution.
In dismissing the suit the court referred to a similar suit decided in France February 1, 1905, in which it was confirmed that--
airs of music on disks or cylinders of graphophones and gramophones do not constitute a musical infringement.
Twelfth. That the proposed legislation in so far as relates to mechanical reproductions is in furtherance of the plans of certain powerful interests to obtain a monopoly--an international monopoly--on mechanical reproducing instruments of all kinds, and that they are attempting to use the legislative branch of the Government to secure that which has been repeatedly denied them by the courts.
Thirteenth. That it is vicious, in that if it is permitted to be enacted into law it will deal a deathblow to great American industries which have been extended until now they embrace all countries, and in which millions of dollars have been invested in the knowledge that the right to manufacture was perfectly lawful and that the right to continue such manufacture, unhampered by such ruinous conditions as would be imposed by this bill, could never be brought into question or become the subject of serious dispute.
Fourteenth. That if this bill becomes a law it will seriously affect the rights of thousands upon thousands of American citizens who have purchased these machines and who have the right to expect to continue to use them and to obtain the supplies for them at reasonable prices instead of paying tribute to a grasping monopoly.
Fifteenth. And finally, that whatever arguments may be advanced by the association of musical publishers (and their allied interests, whose representatives framed the bill, and who, if it becomes a law, will get 99 per cent of the benefits to be derived therefrom), regarding other methods of mechanically producing sound on the theory that the same constitutes a method or system of notation and under certain conditions may be read by persons skilled in the art, under no circumstances can such arguments be truthfully advanced to cover or apply to talking machine sound records.