The talking machine world (Jan-Dec 1908)

14 THE TALKING MACHINE WORLD. IMPORTANT COPYRIGHT RULING BY SUPREME COURT OF AUSTRIA In the Suit of Doblinger Against the German Gramophone Co. — Takes Same View as United States Court in the White-Smith-Apollo Case That Musical Records Are Not a Violation of Exclusive Rights Granted to the Owner of the Copyright. The decision handed down June 15 by the Austrian Supreme Court in the case of Doblinger vs. the Iterman Gramophone Co. effectually disposes of the efforts of those who have endeavored to twist the meaning of the Austrian laws relative to mechanical reproduction of musical works to their own benefit. It will perhaps be remembered that Paragraph 36 of the Austrian law in very clear and unequivocal language declares that: "The manufacture and public use of instruments for the mechanical reproductions of musical works shall be no infringement of copyright in music." Notwithstanding this, the Viennese publisher of "The Merry Widow," Ludwig Doblinger, brought suit against the German Gramophone Co. for alleged violation of his copyright, by the gramophone records of selections from "The Merry Widow." It was claimed by Doblinger that the gramophone was not a mechanical reproduction in the sense of the copyright statute, and therefore the records were not exempt from the exclusive rights of the copyright proprietor. He further claimed that the records from "The Merry Widow" constituted an edition of the music; that they were merely another form of manifold copies of the music itself. The trial court gave judgment in favor of the publisher, Doblinger. An appeal was taken, and in March, 1907, the Court of Appeals of Vienna reversed the decision. The matter has just been finally passed on by the Supreme Court of Austria, and the text of this decision, which has just reached this country, is printed herewith. It is significant that this decision confirms the opinion handed down by the Supreme Court of the United States in the White-Smith-Apollo case, and also the opinion of the Supreme Court of Belgium, handed down in May, 1907, in the case of Massenet & Puccini vs. Pathe Freres. Thus these three supreme tribunals have each independently declared that the musical records were not a violation of the exclusive rights granted the owner of the copyright. The court states very clearly that the records are of themselves nonentities, that they are merely parts of machines, and cannot, like sheet music, for instance, be read. The court refuses to consider them an edition of the music in any sense or as manifold copies of the music. For the first time the highest court in any land has taken official cognizance of the important part which talking machines play in popularizing the works of authors and composers, and goes squarely on record refuting the pre^ tense that the use of talking machines and records work to the financial disadvantage of composers. This paragraph, which reads ■A reproduction by means of the gramophone induces a visit to the original performance ; it popularizes the work (music and text) and is therefore, of advantage Ijoth to the composer and the librettist : as regards the latter, the gramophone does not render the text book any the less necessary," is particularly significant. This decision ought to have great weight with the delegates who assemble at the International Conference in Berlin next October, and will undoubtedly influence the action of our patent committees when they finally frame up the bill for the revision of the copyright laws of the United States. [Translation from the German.] In the J\ame of His Majesty the Emperor. In the action of the firm Ludwig Doblinger (sole proprietor, Bernhard Herzmansky) of 10 Dorotheergasse, Vienna 1. plaintiffs, represented by Dr. Julius Monath, Vienna, brought against the firm Deutsche Gramophonaktiongesellschaft. .S Krugerstrasse, Vienna 1, (head office), defendants, represented by Dr. Paul Abel, Vienna (their agent), for confirmation of copyright, and an injunction to prevent infringement of same, in which the plaintiffs appeal against the decision of the k. & k. ( ilivi landesgericht, Vienna (higher county court), which, slt'ing as Court of Appeal, on March 2d, 1908, as a result of an appeal by the defendant company, reversed the decision of the k. & k. Landesfe-ericht, Vienna, Z. K. S. (County Court) of the 12th of December, 1907. It has been decided by the k. & k. Oberste Gerichtshof (Supreme Court of .Tusrice), in session as Court of Appeal, that the plaintiffs' appeal shall be dismissed, and that the plaintiffs shall refund to the defendants the costs of the appeal, assessed at 3.5O kronen, within 14 days, on execution. BE.ISOXS FOR THE DECISION OF THE SUPltEME COURT. The appeal, based on paragraph TjOZ, Zl, 4 Z. P. O., centres in the following statements: Firstly, that gramophone disks cannot be classed among the exceptions named in paragraph 36 of the copyright laws; and, Sec.>nd]y, that in any case the exemption granted bj' the above paragraph does not apply to the text of songs. On both points, however, the appeal is not admissable. Paragraph 36 Tj. G. grants perfect freedom to the manufacturer and public use of instruments for the mechanical reproduction of music. In the gramaphone there is a distinction between the disk, and the mechanism which causes the reproduction (release) of the sounds impressed on the disk. The appellants are wrong in describing the disk merely as a medium used for manifolding. The disk itself cannot give a comprehensive reproduction of any musical or other work, as it cannot, like for instance a sheet of of music, be read. Technically, the disk is described as an appliance that can only be utilized in conjunction with a sound reproducing mechanism. The disk cannot technically be de scribed as possessing a separate entity, as it is only in conjunction with the mechanism that it forms the complete machine — a gramophone. The gramophone, however, can undoubtedly be classed among the exceptions named In the above mentioned paragraph 36, although it is entirely distinct from barrel-organs, Aristons, and other instruments that are technically, of a different nature. It is not essential to prove, whether the mechanism in itself reproduces the sounds, or whether it merely releases the sounds latent in the disk ; also, it is not necessary to distinguish between the reproduction of musical tones and that of vocal sounds (songs) ; the important point is the "mechanical reproduction." If the appellants affirm that the gramophone reproduces an artistic performance — that is to say. that it to an extent constitutes an artistic performance, the natural reply would be that the gramophone only reproduces whatever is played or sung into the receiving disk. On the other hand, every artistic performance, even if undertaken by the same artists, whether players or singers, possesses an individuality — no two performances nre exactly alike. IT IS UP TO YOU "HUSTLING for BUSINESS 99 Yes, that is what wide-awake merchants will be (doing" in the very near future, for trade conditions are looking up materially for the early fall. The wise merchant plans ahead and gets in his line of specialties so that he will be in a position to capture the early trade. Now the Reginaphone is one of the best business getters which the talkino machine man can secure. It is out of the ordinary and there is nothing that approaches it for novelty and effectiveness. It will help you to make business and incidentally to make dollars. The Reginaphone is a talking machine and a music box combined, and it has a motor mechanism which cannot be surpassed in any of the higher priced machines on the market. Think what a creation of this kind is worth to you ! Place one in your window and it is bound to attract attention. It will draw trade to your store. If you have not already investigated the salability of the Reginaphone. lose no time in so doing. We can give you some statistics concerning its sales which will be instructive and inspiring. They will show you how other men have made money through the agency of the Reginaphone. Be sure that you include this splendid novelty in your business programme for the fall. THE Manufacturers of Regina Music Boxes, Reginaphones. Reginapianos, Regina Chime Clocks, Sublima Pianos, Automatic Talking Machines and Coin Operated Instruments. Distributors of Victor Talking Machines and Edison Phonographs and Records. Main Office and Factory, RAHWAY» N. J. Broadway and 17th Street, New York 259 Wabash Avenue, Chicago