The talking machine world (Jan-Dec 1910)

18 THE TALKING MACHINE WORLD. system of compulsory license are based upon the grounds that a very large business has been built up under the present state o£ the law, in which authors have been considered to have no right to restrain the reproduction of their works by means of mechanical instruments, and that if authors have the rights which article 13 proposes, there may be great danger of a monopoly being introduced, under which possibly one large manufacturing company would secure rights from authors to such an extent that other manufacturers might be practically excluded from the trade; and that it is desirable in the interests of the trade that all manufacturers should be left in the same position as they now are, with this exception, that they should be liable to pay to the author a proper compensation or remuneration for the right to reproduce his works. They claim that at present a manufacturer has a right to use compositions for adaptation to musical instruments, and maintain that if that right should be interfered with the result would be disastrous unless the principle of compulsory license were introduced. "The witnesses who supported these contentions urged in substance that the whole of the existing businesses have been built up on the principle that there is no license or royalty to pay, and that if now licenses from authors have to be obtained and payments made to them, small concerns will be absolutely unable to compete. On the other hand, there can be no doubt but that it is right in principle that authors of works capable of adaptation to mechanical instruments should have the exclusive right of authorizing the adaptation of their works to suoh instruments— that it is in reality part of the literary property which they have in the product of their own brains. If they have this right it is maintained that it ought to be confirmed to them in such a way that they are perfectly free to exercise it in such manner as they think best by licensing one or more manufacturers entirely at their own option or by declining to license at all; in other words, that they should have perfect freedom of action with regard to the exercise of their right. "Those who maintain this view are not prepared to admit that it is proposed by the Revised convention to confer upon authors any new right in the United Kingdom. The case of Boosey against Whight was decided by the Court of Appeal in the year 1899, and it was there held that the plaintiff's copyright in certain sheets of music was not infringed by perforated rolls of paper, representing the musical score, sold for use in a mechanical organ. This case was not taken to the ultimate Court of Appeal, and there appear to be no further reported cases which touch the question, except, perhaps, Mabe against Connor, where one of the learned judges does not appear to have been satisfied with the decision, and Newmark against The National Phonograph Co., where Justice Sutton followed Boosey against Whight. Authors were no doubt dissatisfied with the decision, and we gather that some doubt has been felt as to its correctness, but it has remained undisturbed for ten years, during which period there has been an enormous development of the manufacture of such mechanical instruments as are referred to and of the records used with them, the manufacture having commenced before that period. "It may be added that composers put forward as a strong ground of objection to a compulsory license that they ought to be able to control the mode in which their pieces are produced and the character of the instrument which produces them, so that they may be properly and correctly reproduced without doing discredit to the composer. We have thought it right to state the two views somewhat fully, as there is no doubt about the importance of the questions which are raised by the article and the difficulty of dealing, not so much with regard to the right of the author, but with the exercise of that right, upon which we think we ought to make a recommendation, having regard to the fact that the adoption of the article will necessitate the consideration of the reservations and conditions relating to its application (see paragraph 2). "If the questions now raised had been raised at a time when authors could clearly have asserted a right to prevent reproduction of their works by mechanical instruments, it appears to the committee that it would have been very difficult to maintain that any such systems of compulsory license as those suggested should be brought into force, but the difficulty at the present time is in consequence of the fact that manufacturers of instruments for the purpose of mechanically reproducing works, have developed their business under the impression that they were within their rights in using the works of authors without making any compensation whatever to those authors, and that those rights would not be interfered with by legislation. Most of the witnesses who advocated a compulsory license did not deny the justice of the author's claim to derive some benefit from the use of his works for mechanical reproduction, but they were afraid that the free exercise by authors of exclusive control over such reproductions would produce a monopoly which would ruin the business of a large number of manufacturers. "We can hardly think that these witnesses are right in expressing such fear, and when the large number of composers that exist at the present day and the enormous production of and demand for these mechanical instruments are borne in mind it seems probable that the views of the witnesses are exaggerated as to the results of free rights being exercised by the author. It may be pointed out that manufacturers may at present secure the exclusive services of popular artists, and indeed several of the trade witnesses maintained that the former is of more importance to the manufacturers than the composer of the piece which the performer sings in order to produce the records, and thus manufacturers are at the present moment exposed to the danger of one class of monopoly. "In this country it has generally been considered that freedom of contract is most beneficial to the development of all kinds of industries, and the committee are not aware of any analogous case in which compulsory licenses have been imposed. The nearest approach to anything of the kind may be found in section 24 of the Patents and Designs Act, 1907, according to which, where the reasonable requirements of the public with respect to a patented invention have not been satisfied, any person interested may present a petition to the Board of Trade seeking to obtain the grant of a compulsory license, but the case of a patentee can hardly be considered strictly analogous, for he is concerned with matters of commercial utility, and even the section referred to does not contemplate that he shall be under any obligation to grant a compulsory license, provided he gives reasonable satisfaction to the requirements of the public. "Further, we have found, on considering the subject very carefully, assisted by the evidence, that any system of compulsory license leads to very considerable difficulties. Witnesses have pointed out that a fixed sum per record may produce hardship in cases of low-priced articles, and when an attempt is made to fix a royalty by percentage it is found practically impossible to separate the values respectively of the manufacturer's work, the performer's work and the composer's work, all of which contribute in varying degrees to the value of the article, and further, when an attempt is made to settle matters on the basis of an agreement, so that each manufacturer may come in on the terms agreed, difficulties are presented by such cases as where the composers themselves might manufacture the machines and records, or sell the whole of their rights to manufacturers, and there are other ways in which evasions might be attempted. "The committee, with one dissentient, have come to the -conclusion that the author should have freedom with regard to the exercise of his right. "It was suggested that some system of compulsory license should be authorized for a limited term of years from the passing of any act which should establish the provisions of the Revised convention in this country, in order that the position of manufacturers might not be affected during that period except so far as making payment of remuneration to composers for the use of their works, but the committee, with one dissentient, have come to the conclusion that the suggestion should not be adopted. "Whether an author should have complete freedom of contract, or whether his freedom should be in any way limited by a provision as to compulsory license, the committee think that protection should be afforded by legislation to the manufacturers of discs, cylinders, rolls and other mechanical devices, necessary to be used in the course of producing sounds, against piracy of these objects or their reproduction, either by means of direct copies or by means of copies produced by sound or otherwise. The grounds for this recommendation are that, as was pointed out in the evidence which has been placed before the committee, these discs and other records are only produced at considerable expenditure by payments to artists to perform, so as to record the song, etc., and by the expenditure of a considerable amount of ingenuity and art in the making up of these records; and that, therefore, the manufacturers are. in effect, producing works which are, to a certain extent, new and original, and into which the reproduction of the author's part has only entered to the extent of giving the original basis of production. Therefore, the committee regard this as one of the things which can be th% subject of copyright and further recommend that public performances by means of pirated copies of these records should also be treated as an infringment of the rights of the manufacturer. "We will now proceed to consider the effect of the third paragraph of the article. It is somewhat ambiguously worded, and is possibly capable of different interpretations. One member of the committee took the view that paragraph 3 r in H H BERLIN, S. O 9 U* BOUCHE ST. 35 Manufacturers of the cheapest and most popular Disc Talking Machines and Phonographs PUPPEL MACHINES INSURE BEST RESULTS EXPORTED TO ALL COUNTRIES OF THE WORLD Catalogues sent post free on application Our "Elite" 9 Machines One of the Best TELEGRAPHIC ADDRESS: " PVCKAWO Our Famous "Puck Phonograph.'1