Part 26

Section 4966 of the Revised Statutes covers that ground already, and provides that copyright may cover the performance of dramatic work. But I hold, and I hold without the slightest hesitation, that that whole section 4966 is unconstitutional. No court has ever held it to be constitutional, and any attempt on the part of Congress to grant a copyright to enable a man to monopolize the rendering of a play on the stage is preposterous. The fathers who went to Philadelphia in 1787 had more weighty business on hand than to give to playwrights an added grip on the monopoly of their productions in addition to the common-law grip that they already had. At that time and now the author of a play is abundantly protected under the common law, but Congress in 1870 provided an additional grip for the playwright under the copyright statute, in face and eyes of the fact that the Constitution under which they were acting was confined to writings. But if I do not remember wrongly (and I think the gentleman from North Carolina will agree with my recollection) about 1870 Congress did several things that could not be fully vindicated under the Constitution.

Mr. WEBB. Yes.

The CHAIRMAN. Mr. Walker, have you in mind the exact language of the Constitution?

Mr. WALKER. Certainly.

The CHAIRMAN. Will you not put it on the record at this point?

Mr. WALKER. "Congress shall have power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

"F. To publicly perform a copyrighted musical work, or any part thereof."

Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and I would like to ask Mr. Victor Herbert whether, during the last few years, he has with his orchestra performed copyrighted music of other composers, of which copyrighted music he purchased and had the sheets there for the performance?

Mr. HERBERT. With their permission.

Mr. WALKER. Did you get any other permission than the purchase of the sheets?

Mr. HERBERT. That is included.

Mr. WALKER. Did you get any special permission to perform?

Mr. HERBERT. The permission is written on the sheet.

Mr. WALKER. What is written on the sheet?

Mr. HERBERT. Permission for performance.

Mr. WALKER. It is on the sheet, is it?

Mr. HERBERT. Yes.

Mr. WALKER. In all cases?

Mr. HERBERT. That is, on the corner of the sheets--"permission to perform."

Mr. WALKER. Very well, if in his case it is there. But this is the situation of the law at the present time: If one of you gentlemen goes to church and joins in the singing of a hymn that is the subject of a copyright, you are liable to a penalty of $100 for the first time you join in that singing, and a penalty of $50 for every subsequent time, unless you yourself bought that particular hymn book at first hand from the publisher. That is the law now.

Mr. SULZER. Suppose the church bought it?

Mr. WALKER. Then you are liable for the penalty.

Now, that section 4966 has been violated more than a million times since Congress enacted it in 1897, and Congress does not notice the difference; and I take it that it has taken no steps to vindicate its dignity.

Mr. BONYNGE. There is a bill pending before our committee on that proposition.

Mr. WALKER. Yes; I understand about that pending bill, but I am speaking of the law as it now exists. So that, gentlemen, I take the ground that any legislation that gives to the composer of any music the exclusive right to publicly perform that music is outside of the Constitution, because a copyright on a writing can be infringed only by writing; and when some gentleman or some lady stands up in a church and sings a song out of his or her mind he or she is not doing anything about any writing.

Clause G is one to which I direct attention. That clause G is the one that is directed against all music-playing instruments. The gentleman who preceded me did not make entirely clear the nature of this beautiful instrument that he showed the committee, which he stated was capable of rendering music. What he showed to the committee was a perfectly plain steel cylinder. When you look at it you can see no----

Mr. CURRIER. Most members of both committees are perfectly familiar with that instrument.

Mr. WALKER. Very well; I am very glad to hear that. There are a very great many persons who are not.

Mr. CURRIER. That instrument was exhibited before the House committees in the Fifty-seventh Congress.

Mr. WALKER. Oh, yes--then you know all about it. There are a great many gentlemen who have not been informed about it, and I thought I would mention it.

Aside from the matters of constitutional consideration--I have twelve minutes left, and during those twelve minutes I wish to devote myself to some criticisms of this bill which have nothing to do with the constitutional questions that I have been discussing. Those criticisms are equally applicable whether the bill is to be framed and enacted on the basis of "works," or whether it is to be framed and enacted on the basis of "writings." And in any view that anybody may take about the scope of the copyright, the criticisms to which I am now calling attention deserve consideration.

The first one is in section 13, which is one of those sections that is intended to give the American manufacturer the monopoly of manufacturing copyrighted books.

That purpose is a good one, but that section is not well drawn to effect that purpose, because the gentlemen who drew the section were not thoroughly acquainted with the art of printing in its modern development; and the suggestions I have to make to the committee are with a view to strengthening that section so as to close up some loopholes that the authors of the section left wide open.

The language is:

That of a printed book or periodical the text of the copies deposited under section 11 above shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made from type set within the limits of the United States, or if the text be produced by lithographic process, then by a process wholly performed within the limits of the United States.

The trouble there is that the author of that section supposed that the lithographic process was the only other process of producing a book besides printing it from type or a streotyped plate. Now, the lithographic process is not the only process. There are modern processes of photomechanical printing that have nothing at all to do with lithography, that are much cheaper than lithography, and that do all that lithography does. As an illustration, those beautiful illustrated supplements that come out every week with the New York Tribune on Sunday are supposed by some gentlemen to be lithographs. They are not. They are printed on aluminum cylinders at great speed and with great cheapness, and they are very much cheaper and very much better than can be done by the old art of lithography.

Mr. CURRIER. Could not that be said to be a plate within the meaning of this act?

Mr. WALKER. No; because a stereotype plate is meant. But that is very easily corrected. I would suggest that for the words "by lithographic process" be substituted "any other process." Then that covers lithography and every other possible process. Then, on the 21st line of that page, I would suggest the substitution of "illustrations" for "lithographs," because illustrations may be made otherwise than by lithography.

The gentleman who delivered himself upon that particular subject upon behalf of the American mechanic was uninformed about the matter, and complained that a large number of printed illustrations were being imported into this country that would be kept out under the lithographic clause if you put the lithographic clause in strong enough. Now, he is entirely mistaken about that, because the very things that are being imported and that he complains of are not made by lithography at all, but by another process.

Section 15 contains a provision as to what shall happen if the copyrighter does not deposit his copies in the office of the Librarian of Congress on time; and there is a proviso in lines 19, 20, and 21 which reads:

That in such case no action shall be brought for infringement of the copyright until such requirements have been fully complied with.

That ought to be amended by adding the words "or be based on any infringement begun before the time of that compliance," because otherwise the public would have no protection at all. A man could go on and innocently infringe during that year, and the only protection this section gives him is that he would not be sued until after the end of the year, but when sued the action would be retroactive; and that amendment ought to go in to perfect the section.

Section 18 relates to the duration of copyright. Gentlemen, that is a topic to which I have given great consideration, and I can do no more than state my opinion. I should like to elaborate it, but what I would recommend the committee to adopt on that subject is this very short provision: That the copyrights secured by this act shall endure for a hundred years in the case of an original book or dramatic or musical composition (one hundred years, Mr. Herbert, I liberally advocate in your behalf) and for fifty years in every other case.

I am totally opposed to any law providing for the extension of any copyright or any patent. The public ought to know, when the copyright comes out and when the patent comes out, exactly when it is going to expire; and it ought not to be made contingent upon anything so uncertain as human life. On the other hand, there is every reason in favor of giving the copyrighter a very long period of monopoly. Seventeen years is long enough for the patentee. I am a patentee myself. I would be very glad indeed to have Congress extend some of my patents, but I have not the effrontery to ask Congress to do it, because I do not deserve it.

Mr. CURRIER. Do you think a hundred years is a limited time within the meaning of the Constitution?

Mr. WALKER. Oh, yes; certainly. A thousand would be. [Laughter.] And I wish to make this suggestion: It was suggested to me that the word "limited" meant definitely limited, and that therefore Congress would not be conforming to the Constitution if it made the period dependent upon any uncertain contingency. Now there is some force in that.

Mr. SULZER. I agree with you, Mr. Walker, upon making the number of years definite; whether you make the years few or many, make them definite. Now, right there, without any intention to be facetious, do you not think that fifty years is sufficient?

Mr. WALKER. No; and I will tell you why. Harriet Beecher Stowe wrote "Uncle Tom's Cabin" in 1853. She got a copyright on it for twenty-eight years, then an extension of fourteen years, and at the end of that time, in 1895, the copyright expired. Harriet Beecher Stowe then was dead--died in 1896--but she left two maiden daughters; and it would be a comfort to me, and it would be a comfort to all those who honor the memory of Harriet Beecher Stowe, if those two ladies could now be in the receipt of some royalty from "Uncle Tom's Cabin," which they can not be.

Mr. SULZER. Is there any government that grants a patent or copyright for more than fifty years that you know of?

Mr. WALKER. Not that I know of. Fifty years would be altogether excessive for any patent. The longest period that could possibly be vindicated by argument for a patent would be twenty years.

Mr. BONYNGE. How about copyright?

Mr. WALKER. I wish I could argue the matter; but I hold that all original works ought to be copyrighted for a hundred years, and all derivative works, such as dictionaries and encyclopedias, for fifty.

Mr. BONYNGE. What is the longest period granted by any government, that you recall, for a copyright?

Mr. WALKER. I can not speak as to that with certainty.

Mr. SULZER. Fifty years?

Mr. WALKER. The nations are numerous.

Now, I must come to another point, section 23, in respect of the damages that may be recovered. Section 23 begins as follows:

That if any person shall infringe the copyright in any work protected under the copyright laws of the United States by doing or causing to be done, without the consent of the copyright proprietor first obtained in writing, any act the exclusive right to do or authorize which is by such laws reserved to such proprietor, etc.

The trouble with that is that it makes the man who does the thing an absolute infringer unless he can show a consent in writing; and that repels the whole doctrine of implied licenses and equitable estoppel, which two doctrines are found to be absolutely indispensable to the administration of justice in patent cases, and heretofore in copyright cases. The idea that there can be no answer to an infringement suit for a copyright except a written license is new in this statute. It has never been in any copyright law before, and it would work havoc with justice, because it would enable the wilfully malicious copyrighters to mislead men into unwitting infringement, and then pounce on them with an infringement suit, and then, when they set up equitable estoppel or an implied license, say, "Equitable estoppel and implied license do not go in this statute. You must show a written license." Words can not express how badly that would work.

Again, in subdivision B, this man is--

to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer may have made from such infringement.

That is wrong, because it gives him two recoveries; and in patent cases the courts have established for more than a quarter of a century that the patentee is entitled to a recovery of profits or damages, whichever he prefers, but is not entitled to recover both. No proposition has ever been made, in any statute, to give anybody a double recovery until it is made here; and here he is told that he shall have both. And what is worse, down at the bottom there of the subsection, if it turns out that there were no damages inflicted and no profits made, then the provision is that the judge shall fix the damages at such a sum as he finds to be just; and then, after the judge is told to exercise his discretion to fix a just sum, he is told that that sum must not be less than $250.

On page 18, among the evils and misfortunes that are to be inflicted upon the unwitting infringer as well as the willful infringer, is the following. He must--

deliver up on oath, to be impounded during the pendency of action, upon such terms and conditions as the court may prescribe, all goods alleged to infringe a copyright.

So that if anybody wants to drive his competitor out of business, all he has to do is to file a bill alleging that the competing goods infringe, and he does not even have to swear to that; and then, in pursuance of that bill, all the property of that alleged infringer is impounded during the course of the litigation. And it would be a very dull complainant that could not keep the litigation going at least five years, and to that extent eliminate competition.

The next one is wickeder still. The infringer must--

deliver up on oath for destruction all the infringing copies or devices, etc.

Here is a case of an unwitting infringer. He is found to infringe. He thought he did not infringe. Good lawyers told him he did not. The court finally found that he did, and there, among the penalties, all his goods must be delivered up for destruction. Now, that is entirely wrong. The courts have decided in patent cases that under precisely those circumstances the defendant has a right to export his goods and sell them in foreign countries; and there is no ethical and no legal reason why an unwitting infringer of a copyright, after having been found to infringe in this country, should not export his goods and sell them elsewhere. And the circuit court of appeals for the second circuit has unanimously decided, in patent cases, that that is perfectly right.

Mr. WEBB. Not only the copyrighted goods, but the machines themselves.

Mr. WALKER. I will come to the other point--certainly; and he must not only have those destroyed, but the "plates, molds, matrices, or other means of making such infringing copies."

My client, the Automusic Perforating Company, has a plant that cost $50,000. That mechanism is adapted to perforating rolls, and if they should use that mechanism in perforating 500 rolls with perfect right, and then inadvertently use that mechanism in perforating one roll that was held to infringe, under this bill their whole plant would be cleared out of their place and would be destroyed.

Gentlemen, that is so surprising a proposition that I presume it may be of interest to know the origin of it. The patent laws of England provide that, at the discretion of the court, infringing material may be destroyed. That is because the Parliament of England is not subject to any constitutional limitations, and can pass any kind of a law that it pleases. Mr. Justice Gray knew more about the laws of England than he did about the laws of America; and at one time, one of the two times when he was deciding a patent case while he was on the bench, he ran across an English decision in which it was held that the infringing goods might be destroyed. And then, by way of obiter dictum, without having the slightest occasion to do so, he wrote into the decision an obiter dictum to the effect that that was the law of this country. But the judges of the circuit courts know better, and never have enforced that obiter dictum. And if they were to enforce it they would violate two or three provisions of the Constitution, among others that no person shall be deprived of property without due process of law.

But the authors of this provision, taking the hint from that obiter dictum of Justice Gray, have not only applied it to the same matter that Judge Gray applied it to, namely, the infringing thing itself, but to the entire plant of the infringer.

(At this point it was announced that Mr. Walker's time was up.)

Mr. WALKER. I promised to stop at the end of an hour, and I will do so.

The CHAIRMAN. Can you finish what you desire to say regarding the provisions of this bill in five minutes additional?

Mr. WALKER. Well, I can talk five minutes; I ought to have ten. [Laughter.]

The CHAIRMAN. We will give you five minutes more because of the interruptions.

Mr. WALKER. Yes.

Section 30, in respect to this matter of importations--I am now speaking on behalf of the gentlemen, no one of whom I know, namely, those who desire to be protected in this country against the competition of the labor of Europe in getting up copyrighted books. Section 30 reads:

That during the existence of the American copyright in any book the importation into the United States of any foreign edition or editions thereof (although authorized by the author or proprietor) not printed from type set within the limits of the United States or from plates made therefrom, or any plates of the same not made from type set within the limits of the United States, or any editions thereof produced by lithographic process not performed within the limits of the United States, in accordance with the requirements of section 13 of this act, shall be, and is hereby, prohibited.

Now, gentlemen of the committee, that prohibition does not amount to a row of pins. It is as void as is the atmosphere around the North Pole at Christmas time of all human interest, because, although one would suppose by a superficial reading that it put a fence up around all parts of the lot, it leaves at least half the sides of the lot entirely uninclosed. Thus, it prohibits nothing except the importation of an entire edition. Now, somebody may say: "No; it is not an entire edition it is aimed at, but only one specimen of the edition."

But I say in response to that, that that language "Edition or editions" is taken out of the present statute, and in the present statute the words "edition or editions" are confined in their meaning to entire editions by the circumstance that the present statute prohibits also the importation of individual copies. So that if Congress were to enact that section, and it should come before a court, the lawyer for the defendant would say: "It is perfectly plain that Congress intended to change the law. Formerly, in its wisdom, it prohibited the importation of an edition or editions, and also the importation of individual copies. Now it has expressly left out prohibition of the importation of individual copies and prohibited only the importation of an entire edition," and there would not be any answer whatever to that argument.

Mr. SULZER. Then, in the interest of the working people of the United States, you would prefer to have the law left just as it is now?

Mr. WALKER. That would be much better than this; but I would strengthen that law. I know how to strengthen it, and I----

Mr. SULZER. Will you tell us, briefly, how you would strengthen the present law?

Mr. WALKER. Yes; I would do it by amending this section in three places, very simply, if the stenographer will take this down.

Mr. SULZER. He takes everything down.

Mr. WALKER. Very well. I propose that section 30 be amended in the interest of American mechanics by substituting the word "copy" for the words "edition or editions" in line 5 of page 23. Then in line 9 of that section----

Mr. SULZER. "Or any part thereof?"

Mr. WALKER. Wait a moment--and by substituting the word "copy" for the word "editions" in line 9 of page 23; and by substituting the words "any other" for the word "lithographic" in line 10 of page 23. Now, with those amendments, every door would be closed, and the American mechanic would be protected at every point.

Mr. SULZER. Would that preclude any part of that edition being imported?

Mr. WALKER. It would, because that language, "or any part thereof," is contained elsewhere.

Section 32: There is a statement that--

all actions arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.

Gentlemen, one of the competitors of the gentlemen before me wrote an opera, and that was George Ade, and in this opera he inserted this witticism:

The Constitution may follow the flag, but the cocktail is sure to.

We are told by the Supreme Court that the Constitution does not follow the flag necessarily; it follows it if Congress sends it there. Now, if in the wisdom of Congress the copyright law should be extended to Hawaii, Porto Rico, and the Philippine Islands, that can be accomplished only by a statute expressing that intention. And the statement that the courts in those outlying regions shall have jurisdiction of copyright cases amounts to nothing unless you extend the copyright laws to those portions of the earth's surface. I am not in favor of doing it; but if you want to make copyrights effective in those outlying regions you must do so by express enactment.

Here is a more important matter:

Actions arising under this act may be instituted in the district of which the defendant is an inhabitant, or in the district where the violation of any provision of this act has occurred.

That ought to be amended by substituting the word "his" for the word "the," because as it reads now you can sue a man for somebody else's infringement.

Mr. CHANEY. So that it would read "his violation?"