Part 47 (1/2)

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 Const.i.tution, 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 Const.i.tution 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 aeolian suit against the Apollo Company, Judges Lacombe, Townsend, and c.o.xe, 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 Ma.s.senet and Puccini, composers, _v._ Ullman & Co. and Pathe Freres, 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 a.s.similated 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 const.i.tute 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 a.s.sociation 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 const.i.tutes a method or system of notation and under certain conditions may be read by persons skilled in the art, under no circ.u.mstances can such arguments be truthfully advanced to cover or apply to talking machine sound records.

No man living has ever been able to take a talking-machine record and by examining it microscopically or otherwise state what said record contains. In this sense it stands preeminently in a cla.s.s by itself, being unlike perforated rolls, cylinders containing pins, metal sheets, and other devices used in mechanical production of sound, and is not to be likened in any manner to the raised characters used in methods of printing for the blind, where by the sense of touch the meaning is intended to be conveyed. The sense of touch is a mere incident due to the disability of the blind, but it is perfectly feasible and easy to read the characters with the eye, and they are very properly the subject of copyright. I repeat, that to attempt to decipher a phonograph disk is in the very nature of the proceeding ”reaching for the impossible.” How utterly preposterous and ridiculous it would be to pa.s.s this act in its present shape, which would make a telegraphonic sound record, which is something that can not even be seen--the record itself being caused by the magnetization and demagnetization of an electric current of an ordinary piece of wire or a cylinder or disk of steel--a violation of the copyright laws.

You have seen several examples, gentlemen, of methods of reproducing sound. Mr. Cameron showed you yesterday the disk form of talking-machine record. [Exhibiting disk.] That record, if you were to examine it under a microscope, is an engraving of the sound, which is produced by a method wherein the sound waves are engraved laterally at a uniform depth.

Another form is the cylindrical record. Mark you, gentlemen, our company is the only one on earth that manufactures both forms. We are vitally interested in this legislation. In the cylindrical record the cut is of uneven depth. It is an up-and-down cut.

There are other methods, and one or the most important discoveries of the age--a discovery which was considered of so much importance that at the St. Louis Exposition of 1904 it was given great prominence in the Government exhibits--is the telegraphone.

I have here a record [exhibiting record] and I would like to ask Mr.

John Philip Sousa if he can recognize ”The Stars and Stripes forever”

upon it. I would like Mr. Bowker, who stood up yesterday and said that he could read the music roll--which I emphatically deny--whether he recognizes an address of Mr. Victor Herbert upon this form of record [exhibiting record]?

I doubt very much whether these persons who have come down here for the purpose of putting through this legislation have ever seen this thing. They do not know what it is, even. That is the sound record. I do not know what it is. n.o.body knows what it is until you put it on the machine. Yet it can be reproduced indefinitely, and it can be destroyed by that peculiar power which we know not, because no one knows at the present time what electricity is. I want to tell you what you are doing: When you pa.s.s this bill and make it a law, you make that piece of steel copyrightable [indicating]. You make this record spring copyrightable. You do not see anything on it. Look at it closely. There is nothing but a magnetic current--an electric current--by which the sound is actually recorded and can be reproduced indefinitely. I regret, gentlemen, that I am not able to show you; and I hope at the sessions of Congress, or during the recess, to personally demonstrate what I am bringing to your notice this morning.

There is one other point I would like to bring to the attention of you gentlemen, and that is this: That in the cylindrical form of talking machine it is not necessary for the manufacturer to make the roll. In every other mechanical instrument which has been referred to here the process is a factory process; but, as I am speaking, the very words that I am uttering are being taken down by Mr. Hanna, and in less time than an hour these words will be transferred to a graphophonic record; and by that means to-morrow morning you will get your printed record.

For fifteen years the reports of the House of Representatives and the Senate of the United States have been prepared in this manner. And now, when you make this bill a law I can not, notwithstanding the fact that I have purchased a piece of music of Mr. Herbert, take that which I have purchased and sing it into my machine at all. It is impossible to do so. I wish to draw this fine distinction, and show you that in the cylindrical form of talking machine it is not a mechanical operation which is done in a factory, but that it is an instantaneous form of photographing the voice. I would like to have a notation made of that.

You have limited me as to time, but before closing I want to show you what the practical operation of this bill would mean.

The CHAIRMAN. Your time has expired.

Mr. CROMELIN. May I have just one moment?