Mr. BONYNGE. But they could not be copyrighted until they were reduced to writing, could they?
Mr. WALKER. Yes; they could, under this bill.
Mr. BONYNGE. How?
Mr. CURRIER. What would you file in the copyright office?
Mr. WALKER. You do not have to file anything for a year.
Mr. CURRIER. I know that; but you have got to file something then.
Mr. WALKER. But you get a year"s copyright without ever doing that, and this bill would give a man a monopoly of a whole year on a speech never reduced to writing, and that is a "limited time." And if he chooses ever to reduce it to writing, then all he has got to do is to file one copy in the office of the Library of Congress and not publish it at all.
Mr. CHANEY. Well, you must remember that we must confine this to copyrighted matter.
Mr. WALKER. You must confine it quite narrowly, I think; but please let me develop my particular thought.
It is perfectly plain that under this bill a man may have a copyright on an oral sermon, lecture, or address and maintain that copyright for a whole year without that discourse ever being even put into typewriting during that period. That is a perfectly plain case, therefore, of copyrighting a work that is not a writing.
Now, come down to subsection G, "works of art." There is another item.
Now, that word is much broader than "writings." I have made a good many works of art myself. Everybody that invents a complicated machine produces a work of art and a work of high art. There are a great many works of art here in this room which could not by any possible strain of language be denominated "writings." There is a perfectly plain case of attempting to copyright, under this statute, a work which is not also a writing.
Mr. CURRIER. What change would you suggest in subsection G?
Mr. WALKER. I have formulated such a change as that, but it would take a little time to explain it.
Mr. CURRIER. Very well. Take your own course.
Mr. WALKER. I am very glad to be at the disposal of the committee, but it would take me five minutes to explain. It is a very important point.
Subsection H covers "Reproductions of a work of art." There is a perfectly flagrant case of attempting to copyright not only a thing that is not necessarily a writing, but also a thing that is not even original; whereas the Supreme Court has told us over and over again that nothing can be copyrighted that is not original.
Now, go over to the next page, page 4, Cla.s.s L:
Labels and prints relating to articles of manufacture, as heretofore registered in the Patent Office under the act of June 18, 1874.
That was the very act that the Supreme Court held fifteen years ago was unconst.i.tutional as not authorizing copyright on things which are not writings. So that there is a recommendation to this committee to reenact a law that the Supreme Court has expressly held to be unconst.i.tutional.
Now, come, if you please, to the second page of this bill. The first section of this bill enumerates exclusive rights to be covered by copyright. Subsection C is:
To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.
Mr. CAMPBELL. What page is that?
Mr. WALKER. The top of page 2.
Senator SMOOT. Subdivision C.
Mr. WALKER. (Reading):
To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.
A lecture could be copyrighted under this statute without any copy ever being put even into typewriting, as I stated a little while ago, and that copyright could be maintained for a year, when the discourse has no existence whatever except in the mind of the man who delivers it, and in the ears of those who heard it, and in the air that transmitted it from the vocal organs of the lecturer.
D--To publicly perform or represent a copyrighted dramatic work.
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 unconst.i.tutional. No court has ever held it to be const.i.tutional, 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 Const.i.tution 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 Const.i.tution.
Mr. WEBB. Yes.
The CHAIRMAN. Mr. Walker, have you in mind the exact language of the Const.i.tution?
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?