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May 29, 1987

CONGRESSIONAL RECORD - SENATE Berne during the 99th Congress, in resources to support new Initiatives in , tion, not currently eligible for existing cluding advocates of domestic moral science and technology are most diffi/ grant programs; investigator initiated rights legislation. This record provides cult.

frants to provide funds to assist an in persuasive evidence that no changes in Today. I rise to Introduce legislation dividual scientist or institution in U.S. copyright law are needed in order to create a self-supporting technology bringing a worthy concept to the stage to meet Berne's minimum standards trust fund to finance future long-term of domestic manufacture: and supple. with respect to moral rights.

baskc scientific research and student mental technology development Any moral rights amendment to the assistance in math, science, computer grants to rapidly develop products and Copyright Act would be highly contro- science and engineering.

processes from any domestic research versial. The debate on any such pro- The trust fund would be financed by project where development would posal could be a contentious distrac royalties from federally funded re- resalt in domestic manufacture or use. tion from the effort to bring the search and development and royalties United States into the Berne Conven- resulting from technology transfers technology trust grants would only be

Under this program, science and tion. Whatever the merits of various from the Federal Government to the available to U.S. citizens or instituproposals to strengthen protection for private sector. The trust fund is also tions and development funds shall moral rights under the Copyright Act. authorized to accept charitable contri- only be avanlable where development none of them would advance the goal butions from the private sector. of Berne adherence, which is the only The trust fund is expected to collect result in domestic manufacture or

use. object of this legislation. Accordingly. or distribute large sumns of money for like the Berne implementation legisla a number of years. It is intended to be

Unlike any other competitiveness com previously Introduced in the forward looking proposal to provide prostans. the science and technology Senate, the Berne Convention Imple future supplementai tunda in na end of trust fund attempts to make a fair dismentation Act of 1987 does not con- continuing budgetary restraint

tribution of its resource among the talp any provision on mond rights Under this proposal, an independent

States in making fant consider. Mr. President, n I have noted, the entity would be catablished known N

ation will be given to geogtaphic districonsensus in support of the principle the clence and technology Advisory

bution State which receive few of US adherence to the Berne Con- comraittee. The committee would be trants from existing Federal research vention todas stronger than ever. chaired by the Secretary of Commerce and development programs will receive Within the introduction of the Berne and would advice the Nitional Science special consideration to evaluating Convention leaplementation Act of Foundation on the manngement of the annt applications La mence, there 1907, which parallel to many tempor. sciena and technolog, trus tund

will be an firmative on factor for tant respect the provision of Repre There shall be hroe primary sources States which do not receive many rentative Kustange's bu on the of funds for the refund wherever mat frogadetting aqience and tech subject we take gant rep closer to posible, the Foder Government in Dolog program Icones on the legalattre means of secure from recipients of any

Moderal

Over .pagod of renal yean, the reaching this valuable soul. I look for research and development and legislation rigutres that there be a relward to worting with the chairman of promise to mang theo chance ad atively equa bulando al pants bo the Subcommittee on PatantaCopytechnolg trust tum Deroontage of tween studied weekends and facilities rehua and Thademart Senator ang profit or ovnentp of patente di- and clientific research DrCoucon, and with my other cout rectly resalting fiton such federally Mr. President the Ontted States leagues on that subcommittee, mod funded remarch and development. facro tough new pconomie compett with Representative TANIR and The legtalation does not net a specific tors. The strength of our Nation and his colleagues on the counterpart sub minimum royalts it ym be the re its economy has been our edee to set committee on the other bodo. In order sponsibility of cach pderal depart ence and technology. I regret to say to resolve the few remaining different meat to stabilan noprogutate utance that our competitors are closing on ence between the bible in the Coo meata It my parehon that the our lead. green, the long delayed road or orting royalty bo be the pererat to sper Now to the time to look into we ing the Ontad stated into the premier cent range. This level wm pot dlucour future and estabhah the mechanke world copyright greens.cat utht. Ne research efforts, but could eventu- which can keep the United stata u ou my we should reach now to ally provide dominicant source of the forefront of science and technolo attain it and thereby strengthen the tunda system of international Copyright pro The second source of funding is I ask my colleague to take a caretu tection under which American create from extating technology transfer rog- look at this proposal and I invite their ity has flourlahed, to the benefit mod altia Under current law, Federal re support and recommendations enjoyment of the entire vorld.

search facile can transfer technolo Mr. President, I w unanimous con

o to the prtnnte sector under royal. sent that the text of the bui be print By Mr. EXON:

ty urangement. Under the proposal ed in the RECORD. 1302. A DW to authortae the Second those fundal which simply go into the There being no objection, the bih tary of Commerce to establish the reneral fund will be earmarked for the was ordered to be printed in the ence and Technology Advisory Com- technoloxy trust fund.

RECORD, as follows: mittee, to provide seadistance to connec Finally, the trust fund would be wution with long-term base scientific re thorised to solicit and accept chariter

S. 1303 search and student Asstatano in math ble contributions

Be il enacted by the Senate and House of aclence, computer science, and engel- The science and technolors trust America in Congress assembled

Representatives of the United States of neering, and for other purposea, to the fund will provide a source of funds for Committee on Labor and Human Re student assistance and student facill

SHORT TITLE DUTINITION sources ties. The trust fund will make grant

SECTION 1. (B) This Act may be cited as RASIC SCIENTISIC KARARCH AND STUDENT or loans available for students for

the "Basic Scientific Research and Student

Assistance Act". study in science, engineering. math Mr. EXON

(b) As used in this Act, the term 'person Mr. President, the and computer sciences and grants to

means any individual, corporation, educa Senate Budget Committee and the educational Institutions for infrastruc. tional institution, or other enti) Senate Commerce Committee have ture development in science, engineer had several recent hearings on the ing. math and computer sciences. need to improve the Federal effort in

SEC 243) The National Srion The trust fund will also fund basic

tion in consultation with the 4. science and technology. In this era of scientific research and development.

mi!!rerabltsted by sanj fiscal restraint and the continuing There shall be funds available for

ASSISTANCE ACT

PROJECTS

.

Authordoke kruni crisis created by the Federal budget long term basic research grunts for Jebel and the national debt, finding projects torihy si scientific investiga nors of haina ura

arising

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Page B. The “Moral Rights” of Authors

32 1. Hearings in Washington, DC.............

33 2. W.I.P.O. Roundtable Discussions in Geneva.

36 3. Meetings in Paris..

36 4. Other Commentary.

37 5. Conclusion

6. Moral Rights and Self-Execution
C. Formalities.

1. Registration..
2. Recordation of Documents
3. Mandatory Deposit
4. Notice of Copyright.

5. Renewal Registration
D. Jukebox Compulsory License
E. Architectural Works
F. Retroactivity and the Public Domain

G. Effective Date of the Act.
VI. Oversight Findings .....
VII. Statement of the Committee on Government Operations..
VIII. New Budget Authority.
IX. Inflationary Impact Statement ..................

X. Cost Estimate.
XI. Statement of Congressional Budget Office
XII. Committee Vote.
XIII. Changes in Existing Law Made by the Bill, as Reported

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof the following: SECTION 1. SHORT TITLE.

This Act may be cited as the “Berne Convention Implementation Act of 1988". SEC. 2. REFERENCES TO TITLE 17, UNITED STATES CODE.

Whenever in this Act an amendment or repeal is expressed in terms of an amendment to or repeal of a section or other provision, the reference shall be considered to be made to a section or other provision of title 17, United States Code. SEC. 3. DECLARATIONS. The Congress makes the following declarations:

(1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971, (hereafter in this Act referred to as the "Berne Convention”) are not self-executing under the Constitution and laws of the United States.

(2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law.

(3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention; no rights or interests in addition to those arising under such amendments or existing law shall be recognized or cre

ated for the purpose of satisfying such obligations. SEC. 4. CONSTRUCTION OF THE BERNE CONVENTION. (a) RELATIONSHIP WITH DOMESTIC LAW.

(1) Subject to the provisions of subsection (b) of this section, section 104(c) of title 17, United States Code, as added by section 6(2) of this Act, and section 301(e) of title 17, United States Code, as added by section 7 of this Act, the provisions of the Berne Convention shall be given effect under title 17, United States Code, as amended by this Act, and any other relevant provision of Federal or State law, including the common law.

(2) The provisions of the Berne Convention shall not be enforceable in any action brought pursuant to the provisions of the Berne Convention itself. (b) CERTAIN RIGHTS NOT AFFECTED.—The adherence of the United States to the Berne Convention, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work

(1) to claim authorship of the work; or

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(2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author's

honor or reputation. SEC. 5. DEFINITIONS.

(a) PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.-Section 101 is amended in the definition of "Pictorial, graphic, and sculptural works” by striking out in the first sentence “technical drawings, diagrams, and models” and inserting in lieu thereof “diagrams, models, and technical drawings, including architectural plans".

(b) BERNE CONVENTION AND BERNE CONVENTION WORK.-Section 101 is amended by inserting after the definition of "audiovisual works" the following:

“The 'Berne Convention' is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971. “A work is a 'Berne Convention work' if

"(1) in the case of an unpublished work, one or more of the authors is a national of a state adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a state adhering to the Berne Convention on the date of first publication;

“(2) the work was first published in a state adhering to the Berne Convention, or was simultaneously published in a state adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention; "(3) in the case of an audiovisual work

"(A) if one or more of the authors is a legal entity, that author has its headquarters in a state adhering to the Berne Convention; or

"(B) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a state adhering to

the Berne Convention; or “(4) in the case of a pictorial, graphic, or sculptural work, such work is incorporated in a building or other structure located in a state adhering to

the Berne Convention. For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in a state adhering to the Berne Convention is considered to be a national of that state. For purposes of paragraph (2), a work is considered to have been simultaneously published in two or more nations if its dates of

publication are within 30 days of one another.". SEC. 6. NATIONAL ORIGIN. Section 104 is amended (1) in subsection (b)

(A) by redesignating paragraph (4) as paragraph (5); and

(B) by inserting after paragraph (3) the following: “(4) the work is a Berne Convention work; or"; and

(2) by adding at the end the following: "(c) EFFECT OF BERNE CONVENTION.—No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the pro visions of the Berne Convention or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto.". SEC. 7. PREEMPTION WITH RESPECT TO OTHER LAWS.

Section 301 of title 17, United States Code, is amended by adding at the end there of the following new subsection:

"(e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of the obligations of the United States thereunder.". SEC. 8. SCOPE OF EXCLUSIVE RIGHTS IN NONDRAMATIC MUSICAL WORKS.

(a) NEGOTIATED LICENSES.-Chapter 1 is amended by inserting after section 116 the following new section: “8 116A. Negotiated licenses for public performances by means of coin-operated

phonorecord players "(a) APPLICABILITY OF SECTION.- This section applies to any nondramatic musical work embodied in a phonorecord.

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"(b) LIMITATION ON EXCLUSIVE RIGHT IF LICENSES NOT NEGOTIATED.

"(1) APPLICABILITY.—In the case of a work to which this section applies, the exclusive right under clause 4 of section 106 to perform the work publicly by means of a coin-operated phonorecord player is limited by section 116 to the extent provided in this section.

"(2) DETERMINATION BY COPYRIGHT ROYALTY TRIBUNAL.—The Copyright Royalty Tribunal, at the end of the 1-year period beginning on the effective date of the Berne Convention Implementation Act of 1988, and periodically thereafter to the extent necessary to carry out subsection (f), shall determine whether or not negotiated licenses authorized by subsection (c) are in effect so as to provide permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending on the effective date of that Act. If the Copyright Royalty Tribunal determines that such negotiated licenses are not so in effect, the Tribunal shall, upon making the determination, publish the determination in the Federal Register. Upon such publication, section 116 shall apply with respect to musical works that are not the subject of such negotiated licenses. "(c) NEGOTIATED LICENSES.

“(1) AUTHORITY POR NEGOTIATIONS.—Any owners of copyright in works to which this section applies and any operators of coin-operated phonorecord players may negotiate and agree upon the terms and rates of royalty payments for performance of such works and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments.

"(2) ARBITRATION.-Parties to such a negotiation, within such time as may be specified by the Copyright Royalty Tribunal by regulation, may determine the result of the negotiation by arbitration. Such arbitration shall be governed by the provisions of title 9, to the extent such title is not inconsistent with this section. The parties shall give notice to the Copyright Royalty Tribunal of any determination reached by arbitration and any such determination shall, as between the parties to the arbitration, be dispositive of the issues to which it re

lates. "(d) LICENSE AGREEMENTS SUPERIOR TO CRT DETERMINATIONS.—License agreements between one or more copyright owners and one or more operators of coinoperated phonorecord players, which are negotiated in accordance with subsection (c), shall be given effect in lieu of any otherwise applicable determination by the Copyright Royalty Tribunal.

"(e) NEGOTIATION SCHEDULE.—Not later than 60 days after the effective date of the Berne Convention Implementation Act of 1988, if the Chairman of the Copyright Royalty Tribunal has not received notice, from copyright owners and operators of coin operated phonorecord players referred to in subsection (cX1), of the date and location of the first meeting between such copyright owners and such operators to commence negotiations authorized by subsection (c), the Chairman shall announce the date and location of such meeting. Such meeting may not be held more than 90 days after the effective date of that Act.

"() COPYRIGHT ROYALTY TRIBUNAL TO SUSPEND VARIOUS ACTIVITIES.- The Copyright Royalty Tribunal shall not conduct any ratemaking activity with respect to coin-operated phonorecord players unless, at any time more than one year after the effective date of the Berne Convention Implementation Act of 1988, the negotiated licenses adopted by the parties under this section do not provide permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending on the effective date of that Act.

"(g) TRANSITION PROVISIONS; RETENTION OF COPYRIGHT ROYALTY TRIBUNAL JURISDICTION.-Until such time as licensing provisions are determined by the parties under this section, the terms of the compulsory license under section 116, with respect to the public performance of nondramatic musical works by means of coin-operated phonorecord players, which is in effect on the day before the effective date of the Berne Convention Implementation Act of 1988, shall remain in force. If a negotiated license authorized by this section comes into force so as to supersede previous determinations of the Copyright Royalty Tribunal, as provided in subsection (d), but thereafter is terminated or expires and is not replaced by another licensing agreement, then section 116 shall be effective with respect to musical works that were the subject of the terminated or expired license.”. (b) TECHNICAL AND CONFORMING AMENDMENTS.

(1) Section 116 is amended

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