Part 1

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ARGUMENTS BEFORE THE COMMITTEE ON PATENTS OF THE HOUSE OF REPRESENTATIVES ON H. R. 11943,

TO AMEND TITLE 60, CHAPTER 3, OF THE REVISED STATUTES OF THE UNITED STATES RELATING TO COPYRIGHTS.

MAY 2, 1906.

COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, FIFTY-NINTH CONGRESS.

FRANK D. CURRIER, NEW HAMPSHIRE, _Chairman_.

SOLOMON R. DRESSER, PENNSYLVANIA. JOSEPH M. DIXON, MONTANA. EDWARD H. HINSHAW, NEBRASKA. ROBERT W. BONYNGE, COLORADO. WILLIAM W. CAMPBELL, OHIO. ANDREW J. BARCHFELD, PENNSYLVANIA. JOHN C. CHANEY, INDIANA. CHARLES McGAVIN, ILLINOIS. WILLIAM SULZER, NEW YORK. GEORGE S. LEGARE, SOUTH CAROLINA. EDWIN Y. WEBB, NORTH CAROLINA. ROBERT G. SOUTHALL, VIRGINIA. JOHN GILL, JR., MARYLAND.

EDWARD A. BARNEY, _Clerk_.

WASHINGTON: GOVERNMENT PRINTING OFFICE. 1906.

ARGUMENT (CONTINUED) ON H. R. 11943, TO AMEND TITLE 60, CHAPTER 3, OF REVISED STATUTES OF THE UNITED STATES, RELATING TO COPYRIGHTS.

COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES, _Washington, D.C., May 3, 1906_.

The committee met at 11 o'clock a.m., Hon. Frank D. Currier (chairman) in the chair.

The CHAIRMAN. I have received a telegram regarding the bill now before the committee from John Philip Sousa, which reads as follows:

NORTHAMPTON, MASS., _May 3, 1906_.

_The Chairman and Members of Congress_,

_Committee on Patents, Washington, D.C._:

Earnestly request that the American composer receives full and adequate protection for the product of his brain; any legislation that does not give him absolute control of that he creates is a return to the usurpation of might and a check on the intellectual development of our country.

JOHN PHILIP SOUSA.

STATEMENT OF MR. A. R. SERVEN, ATTORNEY FOR THE MUSIC PUBLISHERS' ASSOCIATION--Continued.

Mr. SERVEN. Mr. Chairman and gentlemen of the committee, during the last hundred years and more the inventors of the country have been liberally dealt with by the lawmakers, and the result is to-day no country in the world stands higher in everything in the line of mechanical and industrial development than the United States does, and I think you gentlemen who have this matter of patents in charge may justly take pride in yourselves that your committee in the past has done such magnificent work for the wealth, the prosperity, and the reputation, and the ability of the United States at home and abroad. It is conceded, I think, to-day all over the world that the American inventor is the most industrious, the most ingenious, and is the most valuable part of the real wealth of the United States, and that is so because from the very start the laws have been most liberal to protect the American inventor for every bit of the right of property which he could possibly have in anything that is the creation of his brain and his genius.

Now, unfortunately, as I remarked yesterday, the record is not just that way in regard to the musical inventors--if I may use that term--of the United States, and that, and that alone, is the reason why we have to-day almost no names of composers that have a world-wide reputation. Perhaps the sender of the telegram we have just heard read is as well known in other countries as any composer we have; possibly his music has been heard by more people than the music of any other composer of the United States; and yet the musical critics all over the world say America has no national music because she has no national composers. It is true that there is not in existence to-day, perhaps, a single ambitious musical drama that can claim popularity and reputation that may be expected to be handed down as one of the musical classics that had as its composer a citizen of the United States. I am informed by these musical gentlemen that probably the greatest composer we ever had was compelled, in order to surround himself with the necessities which he required to prosecute his musical work, to leave the United States and take up his residence in Europe, where he continued to live, I believe, to his death. I think that Mr. Furness, who is much better informed than I--and possibly in the opinion of the Musical Publishers' Association, anyway, he is the one man of all those in the United States who knows most about these things--would like to tell you something about this composer this morning, because it is a unique part of the national history, and not by any means a creditable one.

Mr. WEBB. Who was it?

Mr. FURNESS. McDowell.

Mr. SERVEN. The reason that the composer has not gone hand in hand with the literary man and with the inventor, who produce their works from the brain, is because thus far our country has not been so ready to concede to them the right of absolute use and control of their works. The inventor has the right to say just who shall produce his invention, just what it shall be sold for, if he wants to limit it as to that, and just who shall buy it, even, if he wants to go as far as that.

Mr. DRESSER. I doubt that.

The CHAIRMAN. An idea has just occurred to me. I understood you to say yesterday that this movement to enforce the law arose from the fact that men like Mr. Tams had gone into the renting or lending of musical works as a business.

Mr. FURNESS. I would like to treat of that later.

The CHAIRMAN. And that that was the feature which you wished to reach. Suppose this committee should amend this law so as to provide that the renting or lending of these books should be confined to the societies, as we indicated yesterday, that give charitable performances without profit, so that they could only borrow from other similar societies.

Mr. FURNESS. Mr. Chairman, if you will allow me, I would like to speak of that a little later.

The CHAIRMAN. That would entirely wipe out the evil which you suggested to the committee yesterday.

Mr. FURNESS. I doubt whether there is any great number of those people in the United States. You take choirs and churches. Of course churches are not in commercial line of business; they have no means of earning money except by general subscription by members or sale of the seats, and there are a very few cases where the Sunday school wishes to give an entertainment for charity. Those compositions are very inexpensive.

Mr. Tams yesterday tried to make you believe that some of them cost $2 apiece. That is not true. The short cantatas and little operettas run from $4 a hundred to 35 cents apiece, and in very few cases higher than 40 cents. In regard to the renting, we have made provision for that in the new copyright draft that is being framed, the publisher or author or owner of the copyright, whoever he is, should have the right to make such loan, but that it should not be done through what we term the scalper.

The CHAIRMAN. Do you think the publishers would greatly object if the lending of these books was confined to a religious or school society, and the loan was made to a similar society for charitable performances?

Mr. FURNESS. We have in Massachusetts, in Worcester, a musical society that gives an entertainment each spring, called the May Festival.

Mr. SERVEN. Do they charge an admission?

Mr. FURNESS. They charge an admission, and they get the best talent they can procure. They have a few hundred books, and many times they loan them out to other societies for similar entertainments, to societies that are not so poor but what they could afford to buy them. That is one of the great evils that is interfering with the business of the music publishers.

Mr. GILL. Do the singers and musicians give their services free?

Mr. FURNESS. No; they do not. They are well paid. They have Caruso and Sembrich and others of that class.

Mr. SERVEN. There may be a single song or instrumental piece which, of course, can be produced on three or four pages and sold separately; but anything other than something like that in the line of a musical composition is simply valuable to the producer of it because of the fact that it is going to be performed, and it is written especially for that purpose, just as the dramatic compositions are written solely for the purpose of performance, and not for the purpose of their literary merit or as a matter of reading. And for that reason the performance of the extended musical composition is exactly the same as the performance of the dramatic composition.

And, to follow the comparison with the patent, in the same way that the manufacture of the patent is to the right that is granted under the patent so is this performance to the right that is granted under the copyright, and the proceeds of the production are directly proportional to the performance of the production. There is, to be sure, a limited amount of private sales to persons who, for instance, find some one little theme in a composition and like to have it in their homes and occasionally sing it in their homes and possibly somewhere else, but I should think it would be safe to say that not less than 90 per cent of all the sales of oratorios or operettas or cantatas--I am speaking both of religious and secular musical works--are either directly or indirectly solely for the purpose of public performance and connected with public performance.

The CHAIRMAN. But one of these societies that bought the books for the purpose of giving a performance would only loan it to some society near by.

Mr. SERVEN. Unless, as they sometimes do, they would send from Worcester to California for something. It is easy to do those things, and they do it, or have done it.

The CHAIRMAN. There might be persons in a society in California that had friends belonging to a similar society in Massachusetts, and in such cases there might be some correspondence and exchange, but that would rarely happen, I should say.

Mr. SERVEN. They are in correspondence all over the country--the different societies. For instance, there is a Cincinnati society that has an annual festival there, and it carries on a correspondence with similar societies throughout the country.

Mr. WEBB. Your idea is that nobody but a person who buys a piece of copyright music should have a right to perform it publicly?

Mr. SERVEN. That is what is doing to-day. The person that buys it has the right of public performance.

Mr. CHANEY. Carrying out the analogy with patents, what would you say about the right of a man who buys a patent to dispose of it in any way he pleases?

Mr. SERVEN. He buys the patent right.

Mr. CHANEY. He buys a machine, for instance.

Mr. SERVEN. The object that is patented under the patent?

Mr. CHANEY. Yes; take a reaper or a mower or a trashing machine.

Mr. SERVEN. In a case of that kind it seems to me that the owner of the patent, if he likes, can do just as he pleases, and as a matter of fact in very many instances they sell the right to manufacture for certain districts----

Mr. CHANEY. Exclusive of manufacturing, I mean.

Mr. SERVEN. I will follow it from the manufacturer. I remember in my own county--my native county--that a certain variety of fence that was patented, in which case rights were sold in every township, not only to manufacture, but also to sell to other residents of that town the use of that particular kind of fence, whether it was manufactured by the fellow who bought the use, or whether it was manufactured by the fellow who had a license for that town, and nobody else who did not get that from the original patent-right owner, or the licensee under him, could build that fence, and I remember that there were several farmers who liked the fence but who didn't like to pay the price, and they attempted to build it, and they were hauled up in the courts, and my remembrance is that it cost them $1,500 or $1,800 altogether to settle for a little strip of fence that was not worth more than $50.

Mr. DRESSER. I don't believe a court would ordinarily give such a judgment as that in such a case.

Mr. CHANEY. Suppose you limit it as to a machine, without any statement as to his rights further than there is a machine for his use. Now, has he not the right that he can dispose of that machine to anybody he chooses?

Mr. SERVEN. Undoubtedly, because the law provides expressly that thing now.

Mr. CHANEY. Now, then, what difference would there be----

Mr. SERVEN. The law provides expressly the opposite in regard to the public performance of the musical composition, and under that old principle let the buyer look out! He is supposed to know what the law is.

Mr. CHANEY. That being so, ought not a man who buys a musical composition to have the right to do just as he pleases with it, the same as a man who purchases a mowing machine? For instance, I sing some myself. If I buy a piece of music ought I not to have a right to do what I please with it?

Mr. SERVEN. Certainly, if your contract covers that.

Mr. CHANEY. But suppose it does not.

Mr. SERVEN. There must be an express or implied contract as to what he is buying.

Mr. CHANEY. He buys the machine.

Mr. BONYNGE. I do not understand that he has not the same right if he buys a piece of music he can do what he wants to with it; but the other question is in regard to the public performance.

Mr. SERVEN. For profit; yes.

Mr. CHANEY. In the case of a musical composition, he buys it for the purpose of public performance.

Mr. SERVEN. Not necessarily.

Mr. CHANEY. For instance, take a Sunday-school book----

Mr. FURNESS. It does not cover that at all.

The CHAIRMAN. You state that this law refers to the use of these books for a public performance for profit. I do not understand the law that way.

Mr. CHANEY. I do not, either.

The CHAIRMAN. The committee has suggested yesterday and to-day an amendment which would put the law as you state it, and you object to that.

Mr. SERVEN. For this reason: It is proposed to make certain exceptions, to allow privileges to certain beneficiaries under this law, which would really defeat the law, because that sort of a proposition is solely for financial profit, the sort of entertainment that is referred to. Upon investigation it will be found that nearly every entertainment of the kind referred to is really for profit; that instead of lending or renting for a charitable enterprise pure and simple, it will be found that it is a money-making enterprise; there is hardly an exception. You will find that such an entertainment is not a social affair. It is not that sort of a thing. It is an institution solely devised as an expedient to raise money for certain specific purposes, whatever they may be. Now, if we simply give, as, for instance, for the benefit of the occupants of a hospital, or something of that kind, where there is no charge or anything of that sort, we give simply for the entertainment of a company of gentlemen and ladies, where the public is not shut out unless they had the price, then I am sure these gentlemen would not have the slightest objection to it whatever; in fact, they like to encourage that sort of thing, and they even lend their music for such purposes.

Mr. CHANEY. But you want the power of doing that lending yourselves?

Mr. SERVEN. Yes; if our music is gone, we like to do the lending.

Mr. CHANEY. Suppose I buy this composition [holding up musical composition]: haven't I a right to sing it, and have not my friends a right to sing it at my expense?

Mr. SERVEN. You have, so far as any private performance is concerned.

Mr. CHANEY. Well, in public?

Mr. SERVEN. I don't think so.

Mr. CHANEY. Ought I not to have that right?

Mr. SERVEN. That depends on what the contract is when you buy it.

Mr. FURNESS. You could not sing that yourself [referring to musical composition]; that requires more than one voice.

Mr. GILL. How was the use of that restricted when it was purchased?

Mr. FURNESS. The law says that if he does that willfully, or for profit--I think the words "for profit" are in the statute--that he is guilty of a misdemeanor, and, upon conviction, is subject to imprisonment not less than a year, I think, the same as for the dramatic public performance; it is the same remedy for both.

Mr. GILL. You sell that without any restriction?

Mr. SERVEN. Without any notice of restriction.

Mr. GILL. Without any restriction?

Mr. SERVEN. No.

Mr. GILL. Is it not a matter of fact that you make the sale without any contract? I concede that if you make a contract of course you can restrict its use, the same as you can make a contract for the use of a patent; you can give the whole use of a patent or limit it to a town or a county, or you may restrict the patent as to whom it shall be sold, or in any way you please, and I admit that you could restrict this; but I ask, as a matter of fact, what are the contracts? It is a matter of contract?

Mr. SERVEN. It is solely a matter of contract.

Mr. GILL. You sell it without any contract.

Mr. SERVEN. No----

Mr. GILL. Does not that, then, give the man a property right which he can use as he pleases--where you have made no restrictions whatever?

Mr. SERVEN. We have done everything the law says we shall do in order to put this matter under the protection of 4966.

Mr. GILL. Have the courts interpreted this in any way?

Mr. SERVEN. This penalty clause of it?

Mr. GILL. Has this been brought up?

Mr. SERVEN. This penalty clause has not been interpreted, for this reason: That so far as the music publishers are concerned, probably the same as the dramatic producers, they have not endeavored to press the penal provisions; they have felt that if the provision was in the law it was a warning to the man who was attempting to violate that provision, and that the moral effect, possibly, of such a paragraph ought to pretty largely protect their interests; yet they have a number of times considered that question, and I am not at all sure but what some day they may reach the conclusion that they would like to have the court pass upon the question whether Mr. Tams is violating the law.

Mr. GILL. But there is no practical notice or warning to a person who goes into a music store and buys that, because there is nothing on the book you sell that indicates that there is any limitation or restriction in regard to its use by the purchaser?

Mr. FURNESS. The only way that has been brought before us publishers is this: That when they have asked for a public performance, or probably to rent the orchestral part, then we have asked them, "Have you got the score yet?" They may reply, "Yes; we have rented the score," from such and such a man. Then we refuse to give them permission to render the public performance; we say to them, "You must buy the books from the publishers--the owner of the copyright or his authorized agent, the music dealer." So far as an individual goes, and so far as a society goes, we have never brought any suit at all, and the only suit that has been brought on a question of this kind emanates from Mr. Tams, who brings a suit for $200,000 against the music publishers for trying to restrain him from renting these books for public performances.

The CHAIRMAN. The committee does not get a clear idea of what the law is from your statement of it. My understanding of that law is this: That so far as the civil remedy is concerned it makes no difference at all whether the performance is given for profit or not. You can sue them and recover damages, no matter whether it is given for profit or not; but it must be given for profit in order to subject them to the criminal remedies.

Mr. SERVEN. Yes; that is it, willfully and for profit.

The CHAIRMAN. So far as the civil remedy is concerned, it makes no difference.

Mr. BONYNGE. As far as I understand, there has been no prosecution under the penal clause.

Mr. SERVEN. So far there has not; no.

Mr. BONYNGE. And the only use of the penal clause so far has been that it has been a sort of a club to enforce damages.

Mr. SERVEN. No; no action has been taken under that; it has simply been held there, and we have sent broadcast such notices as this which you have in your record, notice to people who were in the habit of violating that section, telling them that we might at some time be compelled to proceed under that section.

Mr. CHANEY. That is, you have threatened them with that penalty.

Mr. SERVEN. If that is the proper word; we have given them specific notice that there is a law and that they have been violating it, and that we do not want them to violate it.

Mr. BONYNGE. As a matter of good legislation, do you think we ought to have a criminal procedure of that kind where the ordinary person would not conceive that he was guilty of a crime?

Mr. SERVEN. The ordinary person, who is not a musician, who does not play in any musical society, would not pick that up; but not one person in a million is attempting to perform such a production without associating with himself many persons who are familiar with the law.

Mr. BONYNGE. My friend Mr. Chaney says he is a singer. Until this matter was called to his attention it is not at all unlikely that he would rent such a book and sing it, together with other singers, at an entertainment given for charity, and according to this he would be guilty of a crime.

Mr. SERVEN. I doubt it, unless he had attempted to form a company for the purpose of performing it.

Mr. CHANEY. Of course you would have to get the singers together.

Mr. SERVEN. You would have to do more than that; you would have to do the same thing that is done with a dramatic composition, and the remedy is the same in this case for a musical drama that it is for a tragedy or any other drama; the condition is the same, the remedy is the same, and if it is a wrong to the dramatist in one case it is a wrong to the music publisher in the other.

Mr. CHANEY. You take a church organization that seeks to raise money, for instance, to buy a pipe organ; they send to Mr. Tams or somebody who has these books, and they tell him how many they would like to get, and ask him how much he will charge for them, and it may be that sometimes they could get them for just the expense of the express charges and the payment for any damage or for any books destroyed. They go ahead and produce that musical operetta. Now, they have committed a crime?

Mr. SERVEN. No; because before that they have to have somebody who is a musical director, who knows about it.

Mr. CHANEY. That goes with the performance----

Mr. SERVEN. There is not such a person as that in the United States, I assume, that does not know just exactly what the provisions of law are.

Mr. BONYNGE. But he is not the only person who would be guilty of the crime. Those in the chorus would be guilty of the crime.

Mr. SERVEN. But here is the point----

Mr. CHANEY. The person who proposes to organize such an oratorio usually proposes it to the church.

Mr. SERVEN. As a matter of fact, I have been informed that Mr. Tams is the principal gentleman in the United States who is doing that sort of thing, to persuade people to violate this statute. Why? Because it is to his profit. At least we assume it is, because, according to his ratings, and so forth, we understand he has made a large amount of money in this particular business. In fact, it has been suggested that Mr. Tams's financial standing compares very favorably with some of these musical composers we have heard about.

The CHAIRMAN. I want to put into the record at this point this notice.

Mr. TINDALE. May I correct a typographical error?

The CHAIRMAN. No; read it just as it is.

Mr. TINDALE. (reading from the first page of a musical composition):