PRINTED AND PUBLISHED BY HIS MAJESTY'S STATIONERY OFFICE. To be purchased directly from H.M. STATIONERY OFFICE at the following addresses: Adastral House, Kingsway, London, W.C.2; 120, George Street, Edinburgh; York Street, Manchester; 1, St. Andrew's Crescent, Cardiff;

15, Donegall Square West, Belfast;

or through any Bookseller.

1928

Price 6d. net.

Cmd. 3122.

Instruments) Committee.

MINUTE OF APPOINTMENT.

17th February, 1928.

Whereas by Section 19 of the Copyright Act, 1911, it is provided that if at any time after the expiration of seven years from the commencement of that Act it appears to the Board of Trade that the rate of royalty fixed by the said Section to be paid to the owners of Copyright in musical works which have been re-produced on any records, perforated rolls or other contrivances, by means of which such works may be mechanically performed, is no longer equitable, the Board of Trade may, after holding a Public Inquiry, make an Order either decreasing or increasing that rate to such extent as under the circumstances may seem just.

And whereas it appears to the Board of Trade, having regard to the representations made to it, that a Public Inquiry should now be held into such rate of royalty.

Now therefore I, the Right Honourable Sir Philip CunliffeLister, the President of the Board of Trade, hereby appoint Harold Claughton Scott, Esq., K.C., William Cash, Esq., and William Smith Jarratt, Esq., to hold such Public Inquiry as aforesaid. And I further appoint Bertie Gibson Crewe, Esq., to act as Secretary of the said Inquiry.

4. APPENDIX C.-The Incorporated Society of Authors, Playwrights and Composers' case

...

5. APPENDIX D.-Tabular statement showing effect of suggested

Instruments).

REPORT OF THE COMMITTEE.

To The Rt. Hon. Sir PHILIP CUNLIFFE-LISTER,

K.B.E., M.C., M.P.

President of the Board of Trade.

SIR,

We have the honour to report as follows:-By a Minute of the Board of Trade dated the 17th February, 1928, we, the undersigned, were appointed a Committee under Section 19 of the Copyright Act, 1911, to hold a public inquiry as to the rate of Royalties payable under that Section to composers and authors and other owners of copyright in musical works by the makers of records, perforated rolls and other contrivances by means of which the work may be mechanically performed."

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There is probably no topic which has caused so much controversy amongst those interested in copyright legislation as the question of the right of musical composers with regard to the reproduction of their works by mechanical means. The history of the matter is dealt with at some length in Copinger's Law of Copyright, page 224 sqq.

In the year 1886, the date of the original Berne Convention for the protection of literary and artistic works, the only means generally known for reproducing music by mechanical means were musical boxes and Barbary organs. The making of these instruments was a Swiss industry, and the provision of Article 3 of the Final Protocol to the Convention of 1886 that mechanical reproduction of musical airs should be no infringement of copyright, was of some value to the Swiss industry whilst it did little harm to musical composers in general. Composers, however, took a different view when instruments were invented which in the form of perforated rolls, discs and cylinders could reproduce all kinds of music and even the words of songs. Actions were brought in the Courts in many countries with a view to testing whether such instruments were or were not an infringement of the composers' copyright in the works reproduced therein. In England, the Court of Appeal, affirming Mr. Justice Stirling decided that the reproduction of musical works by these instruments did not infringe the composers' copyright as defined in the Copyright Act, 1842 (Boosey v. Whight 1899).

Upon this state of the law an industry in the manufacture of these mechanical devices was built up in this country. In the Berne Convention as revised at Berlin in 1908, however, a clause [Article 13 of the Covention (Treaty Series 1912, No. 19)] was inserted requiring that countries signatory of or acceding to the Convention should give protection to composers against reproductions of their musical works by mechanical means. 1909 a Board of Trade Committee was set up in this country to report to Parliament how far it was advisable to alter the British law so as to conform with the requirements of the Revised Convention.

In

The demand of musical composers for the unrestricted protection stipulated for in paragraph 1 of Article 13 of the revised Convention met with powerful opposition from the manufacturing interests. The manufacturers recognised that remuneration was due to composers whose works they utilised. They objected, however, to composers being allowed unlimited powers either to permit or prohibit the reproduction of their works, and urged that provisions similar to those which had recently been introduced into the Copyright Act of the United States of America, giving compulsory powers to acquire licences to reproduce musical works by mechanical means upon payment of a fixed royalty, should be inserted in any Bill which might be introduced to amend the copyright law of this country.

In the result the Committee reported in favour of giving composers full control over the reproduction of their works by mechanical instruments, but by a new Clause inserted in the House of Commons in Committee Parliament decided otherwise, and the Copyright Act, 1911, as passed, contained a clause (Section 19) the effect of which is to compel a composer of music, if he has granted a licence to one person to reproduce his work mechanically, to grant to any other person a licence to produce the same work in like manner upon payment of a statutory royalty.

Thus, a composer cannot be compelled to grant a licence to reproduce his work mechanically, but if once he does so, any other manufacturer can reproduce that work mechanically, upon complying with certain formalities and upon paying the royalty fixed by the Act. In other words a composer is under no obligation to grant a licence, but he cannot make any licence he may grant an exclusive one.

The Sections of the Copyright Act, 1911, which are the most. important in this matter are Section 1, subsection (2) (d) and Section 19, subsection (2). Section 1, subsection (2) provides that copyright in the case of a "literary, dramatic, or musical work" includes the sole right to make or to authorise the making of " any record, perforated roll . or other contrivance by means of which the work may be mechanically performed or delivered."

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