Arguments before the Committee on Patents of the House of Representatives Part 31

It is needless to mention to this committee the unprecedented state of prosperity and material progress attained by this country as the direct result of invention. In all arts the work of the inventor will be found at the foundation of the progress and prosperity of the country. The author or composer has to do more with the pleasure or esthetics of life, the inventor with the real necessities, and in the art allied to the fine arts has had to do with placing throughout the United States in the possession of the common people everywhere the means by which the composer as composer can never give them. It is not for a moment intended to detract from the value of the work of the author or composer, for his work is valuable, but its value has certain limitations, and these limitations are defined in the Const.i.tution and acts of Congress heretofore pa.s.sed in pursuance thereof.

The farmer or the workingman in all the small towns of this country, who are possessed of an electrical piano player or an automatic piano player, or a graphophone or a phonograph, which serves to relax the tension of their daily labor and fill their souls with music, is not because of the composer, for he rarely reached them, but it is the direct result of the inventor of the mechanical contrivances with which music may be conveyed. Yet this law attempts to reach out and take away from the inventor the product of his brain and to deliver it over to the composer. So far as the ma.s.s of the people of this country is concerned, the work of the composer is infinitesimal as compared with the work of the inventor, and the inventor is willing that the composer shall have his just rights under the Const.i.tution; that is to say, shall have full protection in his writings, but does protest that a law should not be pa.s.sed which will enable the composer to overstep the field of protection to which he is ent.i.tled under the Const.i.tution and usurp that which the Const.i.tution has particularly provided shall be with the inventor.

Mr. CURRIER. Would you object to paying a reasonable royalty to a musical author or the proprietor of the copyright if all companies would get the right to use that piece of copyrighted music upon the same terms?

Mr. DAVIS. Most a.s.suredly not--no, sir; I would not, provided----

Mr. CURRIER. You would not object to paying a reasonable royalty if that right was given to all upon the same terms?

Mr. DAVIS. Provisionally I would not object, but your proposition is one which mainly interests the manufacturers of my machine, whom I do not represent. As an inventor I approve of the bill as a whole and only seek to strike out therefrom those comparatively few words covering mechanical devices, the insertion of which vitally affects our present vested rights.

Mr. CURRIER. If it could be worked out along the lines suggested, you would not object to that?

Mr. DAVIS. No, sir; no, sir. But, in my opinion, you will never be able to draw a better or more workable line of demarkation between the inventor and composer than that now set up by the Const.i.tution, particularly if you follow the lines of the present bill as regards mechanical devices, in respect to which collusive elements have been at work behind the drafting of the bill. I will give you my word of honor to produce evidence of it.

The CHAIRMAN. Of what character?

Mr. DAVIS. That Mr. Sousa, or rather the majority of composers, have been sold out by their publishers to this monopolistic octopus, the aeolian Co. and lesser satellites, and that contracts exist which antic.i.p.ate and control benefits designed primarily for the composers, with whom us inventors have no direct fight.

Mr. CHANEY. The idea is now, you know, to try to protect these people who produce the music to the public, and all that. They have rights which we are bound to respect, as well as the inventor.

Mr. DAVIS. Yes, sir; and I would help you in all reasonable and lawful efforts.

Mr. CHANEY. And the idea now is to try to evolve something that will treat everybody fairly.

Mr. DAVIS. Yes, sir. But if the Const.i.tution has led inventors on, given an incentive to them to go ahead and work and devote their funds and lives to developing these industries, which are second to none in the world as young industries, it would be wrong to come in at this stage and either curtail the incentive or subtract from rights already vested in them.

Mr. CURRIER. Yes; but that very clause gives the same incentive and protection to the musical author, does it not, as to the inventor? He is protected on his writings as you are on your discovery?

Mr. DAVIS. Yes, sir; there is a line of demarcation set up in the Const.i.tution. I went in to try to get the line of demarcation between an inventor and a composer. I went in, as I thought, intelligently. I have studied the laws right down to the last decision of the 25th ultimo, that of the court of appeal for the second circuit, and all confirm the contention which I have made here that the only incentive held up to the composer is a specific protection for his "writings,"

not on machines.

The CHAIRMAN. Would you object to Mr. Sousa taking your invention and combining it with his composition and putting it upon the market?

Mr. DAVIS. If there was some fair, equitable way of doing that, no sir, I would not. But unfortunately, we inventors and composers are the ones that are generally imposed on, and naturally I am fearful that any change in the laws as they now exist will prove disadvantageous to both our interests.

Mr. MCGAVIN. If I understand your position correctly, you feel that Mr. Sousa has no more right to require any further compensation from a phonograph company, if it be a phonograph company, for the use of any particular piece of music which has been copyrighted, and of which he has received the benefit, than an inventor of a drum would have a right, after he has been protected by a patent right, to require Mr.

Sousa to pay further for the use of that right. That is your position, is it not?

Mr. DAVIS. Well, you can look at that in two different lights. From the legal standpoint he has no right whatever. From an ethical standpoint there seems to be a sort of remote ethical right. I am not a lawyer, and not used to legal verbiage, and am not sure that I can clearly differentiate between legal and ethical rights.

Mr. CHANEY. Well, this is the "Const.i.tution between friends," you know.

Mr. DAVIS. As inventors we proceeded under the laws of the land as they exist.

Mr. MCGAVIN. That is just what I say.

Mr. DAVIS. Mr. Sousa, through his publishers, has tried in the various courts to have the word "writing" broadened, but he has failed to do so, and he now comes to you to do it. In no copyright act or law has there ever been introduced before--you will not find it anywhere--one word or clause or phrase, before this one, that covers mechanical devices.

Mr. CHANEY. Under that word "writing" you want to exclude such people as Mr. Sousa entirely from its operation in respect to self-playing musical instruments?

Mr. DAVIS. If you are going to work under the Const.i.tution; yes.

Mr. CHANEY. Then, is it not high time that we were giving it a little wider construction than that?

Mr. DAVIS. I think it is rather late in the day, after we inventors have spent our lives at this art and created a new industry. I think you ought to have done it soon after 1789, if at all, and if the law had been pa.s.sed then there is no inventor in the land that would have gone ahead developing this particular art.

Mr. CAMPBELL. Why not, Mr. Davis?

Mr. DAVIS. Because we would have been dominated by composers, as I have explained at great length.

Mr. CAMPBELL. Mr. Sousa can not use your machine nor your process.

Mr. DAVIS. But we would have gone into other fields or arts not dominated by composers. We would have left this art undeveloped. He may make use of machines if he can construct them with "writings" or musical tones and infringe only a remote correlative ethical right of the inventors.

Mr. CAMPBELL. Well, now if there is a mercantile demand, a commercial demand, for your method of reproducing music, why would you not have gone into it for exactly the same reason? If Mr. Sousa's music, played upon your machine, meets a public demand, he must use your instrument just exactly the same as you use his music.

Mr. CURRIER. But suppose there are half a dozen of these concerns and one of them, by an arrangement with the musical publishers of the country, gets control of all the copyrights?

Mr. DAVIS. That is what they have done, sir.

Mr. CURRIER. Then would the competing concerns be able to use their instruments at all?

Mr. DAVIS. They might use, but could not sell, and over their pecuniary misery would weep alone. [Applause.]

Mr. CAMPBELL. The proposition here is that this bill, as I understand it, does not affect what has already been done. It applies to the future. You all stand upon the same level, and that relates right back to the contractual rights of the parties. If Mr. Sousa desires to make a contract with some machine producing music independent from yours, why should his right to do so be restricted by us under the law? That is the question I would like to have you answer.

Mr. DAVIS. Well, sir, I am not a lawyer----

Mr. CAMPBELL. No; but that is a practical question.

Mr. DAVIS. I have been trying to get counsel here. He would probably have advised me in my opening speech for the opposition to imitate Mr.

Sousa in making a bid for your sympathy and avoid a discussion of fine legal points, but I will give you my practical ideas of that. I am an inventor who has studied the law, but without being a lawyer I am ready to say that as the law now stands----

Mr. CAMPBELL. I am speaking of the future. This bill affects the future.

Mr. DAVIS. Well, "this bill affects the future," but has it the right to affect the future? Has it the right to change a situation which has existed since 1789? The bill proposes a change, not merely amend the Const.i.tution, therefore I challenge the authority of Congress to enact it. At present the composer has no contractual right as regards a machine, and Congress can not give it to him.

Mr. CAMPBELL. That is the very proposition we are trying to get at.

The CHAIRMAN. We can not very well change the Const.i.tution.

Mr. CHANEY. It is not a question of changing the Const.i.tution; it is a question of giving the Const.i.tution its fullest scope.

Mr. DAVIS. Well, a gentleman speaking here yesterday, Mr. Stephen H.

Olin, counsel for the American Publishers' Copyright League, although favoring this bill as a whole, gave you a warning that if this bill attempted to broaden the word "writing" so as to include a machine, then the bill in this respect might be held by the Supreme Court to be unconst.i.tutional, and I have already traced the introduction of the terms "machine" or "device" in the bill direct to the monopolistic octopus. Mr. Olin made that statement here yesterday voluntarily.

Mr. CHANEY. I know that.