Arguments before the Committee on Patents of the House of Representatives Part 34

Mr. BURKAN. How about De Koven, and how about Julian Edwards; and how about----

Mr. O'CONNELL. That being so, it seems strange to me that those eminently respectable gentlemen, Mr. Herbert and Mr. Sousa, have been put forward here as advocates of this bill, when the very men who will be the greatest gainers by it have sedulously kept themselves in the background, and do not appear to be represented here, even nominally.

What will be the result if these features of the bill are put through?

Mr. Herbert and Mr. Sousa will get some benefits from it. Ninety-nine per cent of the composers will get absolutely nothing from it. The aeolian Company and the concerns affiliated with it will have millions of dollars turned into their coffers. And the net result is that the public will pay and the independent manufacturers whom we represent will either go out of business, or will have to transact business in such a way that it will be without any profit to themselves, or entirely on sufferance. That is the broad, general question that is before you, gentlemen, of these committees. We only want a square deal. We want no rights that anybody else does not get.

But we do not want to have others put in a position where they can take away our right to do business on a reasonable basis. That being the broad general proposition, I shall expect during the summer vacation to supply your committees with as much information as I possibly can on these various matters, and I ask the committees to do what they can toward investigating how far I am right in this matter.

I can say that those charges have been made in the White-Smith suits in the circuit court and circuit court of appeals, and they have not been answered in anyway by the representatives of the monopoly to which I refer, nor have they been denied.

On the bill itself----

Mr. CHANEY. What section?

Mr. O'CONNELL. I will take it from the beginning, if you please.

The CHAIRMAN. Before you proceed with the bill: Have the companies that you represent made any effort to secure contracts with Mr. Sousa and Mr. Herbert and the other composers that have been mentioned?

M. O'CONNELL. The companies that I represent do not make contracts with composers. The companies that I represent primarily, the 10 manufacturers, do not cut perforated music. They buy it. They buy it either from the aeolian Company, or from one of the many independent manufacturers of such rolls. So that we are not brought into direct contact with Mr. Sousa, Mr. Herbert, or any composers. We want to be in a position where the independents will not be forced out of the field, or where we can be forced to buy this perforated music at an exorbitant figure, or where they can be in the position of refusing to give it to us at any price.

The CHAIRMAN. These companies, as I understand, under existing law simply go to the store offering the music for sale, which is music, and then put it upon the rolls. Is that right?

Mr. O'CONNELL. I do not know what the particular arrangements are that the composers have with the publishers, or the publishers with the music companies.

The CHAIRMAN. Under existing law, is it necessary for the manufacturer to do more than I have stated?

Mr. O'CONNELL. Under the existing law, as it has been decided in the White-Smith suit, the cutter of music rolls can go anywhere and take a piece of music, copyrighted or uncopyrighted, and cut the roll from it. That is my understanding of it, without paying any royalty to anybody.

The CHAIRMAN. And the gentlemen and concerns you represent desire the law to remain in that condition?

Mr. O'CONNELL. I have not said that, sir. What we say is this: We want to be able to go out in the open market and buy our music rolls. We will not be in that position if this bill goes through, because with these contracts that I speak of we can not go into the open market, as there will be no open market whatever. The distribution of these music rolls will be in the hands of one house, and that house can put its own price on them, or refuse to sell them to us at all at any price.

In other words, in pa.s.sing this bill in its present shape, you are fostering too great a centralization of power, or putting an absolute monopoly into the hands of one group of men. That is our objection. If some means can be devised whereby we get in on the same basis, whereby we can buy our records or our perforated music sheets as Mr. Currier said, on the same terms as anybody else, we have no fault to find, then.

The CHAIRMAN. How can law prevent Mr. Sousa from making a contract with the aeolian people or any other concern that he may desire to deal with?

Mr. O'CONNELL. The law can not prevent him from making any contracts he chooses with them, provided he does not contravene the law of the land itself. He can make any contract he chooses for any price he chooses. But there is the unfortunate situation: Mr. Sousa and Mr.

Herbert, and gentlemen situated as they are, naturally ought to be in a position, I suppose, where they have liberty of contract; but in pa.s.sing a law the greatest good to the greatest number must always be considered. If you pa.s.s this bill you do some good to these gentlemen, you do a great deal of good to the monopoly, you do absolutely no good to the vast majority of the authors, and you do a great deal of damage to a great many millions of dollars interested and invested in manufacturing industries in this country, even if you leave the purchasing public out of consideration altogether. It is a question of which you will take, unless some means can be devised to eliminate those particular features.

Taking the bill itself, it was stated here by Mr. Putnam the other day that the object of this bill was to give a copyright on music rolls as to musical compositions composed after the pa.s.sage of this act. That was my understanding of what he said.

Mr. PUTNAM. Copyrighted afterwards, I think I said.

Mr. O'CONNELL. Then I a.s.sumed, from the remarks made by some members of the committee, that they considered the act to apply only to compositions originally composed after the pa.s.sage of this act, and originally copyrighted after the pa.s.sage of this act. I do not believe, therefore, that the members of the committee are aware of the very many peculiar features of the bill in that regard.

Mr. CHANEY. The bill is only submitted as a tentative proposition, to get at the right thing. It is not the result of our genius at all. It belongs to some of the rest of you fellows.

Mr. O'CONNELL. It does not belong, Mr. Chaney, to me or the rest of my fellows; and we are here trying to oppose the genius of the other men, the specially interested ones who did submit it to your committee.

[Laughter.]

Mr. CHANEY. Well, we fellows are not trying to shut out you fellows.

Mr. O'CONNELL. I know that you are not, and all we want is a fair, full, and complete hearing.

Taking first, Mr. Chairman and gentlemen of the committees, subdivision F of the first paragraph. There is still a subdivision B in that subdivision F:

To make any arrangement or setting of such work, or of the melody thereof, In any system of notation.

Mr. CHANEY. On page 2?

Mr. O'CONNELL. I am reading from the House bill.

Mr. CHANEY. We have the Senate bill here. What is the section?

Mr. O'CONNELL. Section 1, subdivision F.

Senator SMOOT. It is on page 2.

Mr. O'CONNELL. It gives the right--

to make any arrangement or setting of such work, or of the melody thereof, in any system of notation.

Then it goes on (subdivision G):

To make, sell, distribute or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of the work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.

Mr. WEBB. Before you leave that, do you not think that section G prohibits the sale of the instrument itself, rather than the reproduction of the music or the work? You are a lawyer.

Mr. O'CONNELL. It would seem that it prohibits both, sir.

Mr. BURKAN. We will submit an amendment to cover that.

Mr. WEBB. It seems that that is a prohibition of the sale of any instrument.

Mr. CURRIER. Clearly so.

Mr. O'CONNELL. I have not seen the proposed amendment, because it was only handed in this morning after we got here.

Turning to section 6, it says--and this is very important:

That additions to copyrighted works and alterations, revisions, abridgments, dramatizations, translations, compilations, arrangements, or other versions of works, whether copyrighted or in the public domain, shall be regarded as new works, subject to copyright under the provisions of this act.

Now, if you please, turn to section 18, subdivision B. It gives a copyright for fifty years after the first publication, and you will find at line 13 of the House bill, which I hold, that it gives a copyright for fifty years after the date of the first publication, in "any arrangement or reproduction in some new form of a musical composition." Then, you will find further down, in subsection C of that section 18, where it gives a copyright for the lifetime of the author and for fifty years afterwards in the case of an original musical composition, thus making it clear, from a reading of all those sections together, that first, where there is an original composition, say of Mr. Sousa or Mr. Herbert, which has been already copyrighted under the present act, under the provisions of this new act they have the right to prohibit the cutting of music rolls for the period of fifty years from those original compositions which they have already copyrighted; and, secondly, the most dangerous provision of the bill, that any music-cutting establishment--this monopoly, for instance--can take any old work, that has never been cut to this day into a music roll, which is in the public domain--one of Beethoven's sonatas, or the Star Spangled Banner, if that has not already been done--and they can cut a music roll and can copyright that, and they can get the exclusive right because of such cutting, notwithstanding that everybody is free to perform that particular piece in every other way.

This bill gives the right to cut it into a music roll and get a copyright for fifty years after the first publication in the form of a perforated music sheet. That, I submit, Mr. Chairman and gentlemen, is a very iniquitous provision--very iniquitous.

Mr. CHANEY. That starts in on page 4 and concludes on page 14?

Mr. O'CONNELL. Yes.

Mr. CHANEY. I think you are right about that.