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(A) in the section caption by striking out “Public" and inserting in lieu thereof "Compulsory licenses for public";
(B) in subsection (a) in the matter preceding paragraph (1), by inserting after “phonorecord,” the following: "the performance of which is subject to this section as provided in section 116A,"; and
(C) in subsection (e), by inserting “and section 116A” after "As used in this section". (2) The table of sections at the beginning of chapter 1 is amended by striking
out the item relating to section 116 and inserting in lieu thereof the following "116. Scope of exclusive rights in nondramatic musical works: Compulsory licenses for public performances by
means of coin-operated phonorecord players. "116A. Negotiated licenses for public performances by means of coin operated phonorecord players.". SEC. 9. NOTICE OF COPYRIGHT. (a) VISUALLY PERCEPTIBLE COPIES.—Section 401 is amended
(1) in subsection (a) by striking out “shall” and inserting in lieu thereof “may”;
(2) in subsection (b) by striking out “The notice appearing on the copies" and inserting in lieu thereof "If a notice appears on the copies, it"; and
(3) by adding at the end the following: "(d) EVIDENTIARY WEIGHT OF NOTICE.—If a notice of copyright in the form specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(0/2).”. (b) PHONORECORDS OF SOUND RECORDINGS.-Section 402 is amended
(1) in subsection (a) by striking out “shall” and inserting in lieu thereof “may”;
(2) in subsection (b) by striking out “The notice appearing on the phonore cords” and inserting in lieu thereof "If a notice appears on the phonorecords, it"; and
(3) by adding at the end the following:
“d) EVIDENTIARY WEIGHT OF NOTICE.-If a notice of copyright in the form specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages except as
provided in the last sentence of section 504(0/2).”. (c) PUBLICATIONS INCORPORATING UNITED STATES GOVERNMENT WORKS.-Section 403 is amended by striking out “the notice of copyright” and all that follows through "title" and inserting in lieu thereof "such copies or phonorecords shall prominently display a statement identifying those portions of the copies or phonore cords that constitute a work of the United States Government, in accordance with regulations issued by the Copyright Office". (d) CONTRIBUTIONS TO COLLECTIVE WORKS.-Section 404 is amended
(1) in subsection (a) by striking out “to satisfy the requirements of sections 401 through 403” and inserting in lieu thereof "to invoke the provisions of section 401(d) or 402(d), as applicable"; and
(2) in subsection (b) by striking out "Where" and inserting in lieu thereof "With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Imple
mentation Act of 1988, where”. (e) OMISSION OF NOTICE. --Section 405 is amended
(1) in the section caption by inserting "on certain copies and phonorecords” after “notice";
(2) in subsection (a) by striking out "The” and inserting in lieu thereof "With respect to copies and phonorecords publicly distributed by authority of the copy. right owner before the effective date of the Berne Convention Implementation Act of 1988, the"; and
(3) in subsection (b) by inserting before the effective date of the Berne Con. vention Implementation Act of 1988" after "has been omitted". (f) ERROR IN NAME OR DATE.-Section 406 is amended
(1) in the section caption by inserting "on certain copies of phonorecords" after "date";
(2) in subsection (a) by striking out "Where" and inserting in lieu thereof "With respect to copies and phonorecords publicly distributed by authority of
the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where"; (3) in subsection (b) by inserting before the effective date of the Berne Convention Implementation Act of 1988” after “distributed"; (4) in subsection (c)
(A) by inserting "before the effective date of the Berne Convention Implementation Act of 1988" after “publicly distributed"; and
(B) by inserting after "405" the following: “as in effect on the day before
the effective date of the Berne Convention Implementation Act of 1988”. (g) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 4 is amended by striking out the items relating to sections 405 and 406 and inserting in lieu thereof the following: "405. Notice of copyright: Omission of notice on certain copies and phonorecords. "406. Notice of copyright: Error in name or date on certain copies and phonorecords.". SEC. 10. DEPOSIT OF COPIES ON PHONORECORDS FOR LIBRARY OF CONGRESS.
Section 407(a) is amended by striking out “with notice of copyright”.
(1) in the second sentence of subsection (a) by striking out “Subject to the pro-
(A) by striking out “under all of the following conditions—" and inserting in lieu thereof "under the following conditions."
(B) by striking out subparagraph (A); and
(a) DETERMINATIONS CONCERING COPYRIGHT ROYALTY RATES. --Section 801(b) is amended by adding at the end the following: “In determining, under paragraph (1XB), whether a return to a copyright owner under section 116 is fair, substantial deference shall be given to
“(I) the rates in effect on the day before the effective date of the Berne Convention Implementation Act of 1988, and
"'(II) the rates contained in any license negotiated under section 116A(c).”. (b) PETITIONS FOR ADJUSTMENT OF RATES.-Section 804(aX2XC) is amended to read as follows:
"(C) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates under section 116–
"(i) such petition may be filed in 1990 and in each subsequent tenth calendar year, or
"(ii) if no petition is filed in 1990 on account of the applicability of negotiated licenses under section 116A, and thereafter section 116 becomes effective with respect to musical works under subsection (bX2) or (g) of section 116A, then a petition under this paragraph may be filed in the year in which section 116 becomes so effective and in each subsequent tenth calen
dar year: If clause (ii) becomes applicable, then clause (i) shall thereafter no longer be ef
fective.". SEC. 13. WORKS IN THE PUBLIC DOMAIN.
Title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States. SEC. 14. EFFECTIVE DATE; EFFECT ON PENDING CASES.
(a) EFFECTIVE DATE.—This Act and the amendments made by this Act take effect on the day after the date on which the Berne Convention enters into force with respect to the United States.
(b) EFFECT ON PENDING CASES.-Any cause of action arising under title 17, United States Code, before the effective date of this Act shall be governed by the provisions of such title as in effect when the cause of action arose.
I. PURPOSE OF THE LEGISLATION The purpose of the legislation is to allow the United States to join the Berne Convention for the Protection of Literary and Artis
tic Works, the world's premier multilateral copyright treaty. This international convention has several provisions that conflict with current American copyright law. In addressing these conflicts, the implementing legislation employs a minimalist approach, making only those changes to American copyright law that are clearly required under the treaty's provisions.
The benefits of the legislation will be multifold. United States adherence to the Berne Convention will establish multilateral relations with twenty-four countries with whom such relations do not currently exist. Further, U.S. membership in the Berne Union is a part in the larger picture of reform of our trade laws, as the Berne standards, it is hoped, will ultimately serve as standards for the General Agreement on Tariffs and Trade (GATT). Since the United States runs a positive balance of trade for copyrighted items, Berne membership should contribute to a continuation of that net advantage. Moreover, the legislation is rooted in the proposition that the United States can join the Union while maintaining a strong and vibrant Library of Congress, which of course serves the public by being a depository of our cultural heritage. Last, by placing American copyright law on a footing similar to most other countries, especially in the industrial world, our domestic law as well as the international legal system are improved. The net benefits will flow to American authors and to the American public.
II. STATEMENT OF LEGISLATIVE ACTIONS The Committee, acting through the Subcommittee on Courts, Civil Liberties and the Administration of Justice, has devoted a great deal of time to the inquiry about whether the United States should adhere to the Berne Convention and if so, what sort of implementing legislation is necessary.
On March 16, 1987, Subcommittee Chairman Kastenmeier intro duced H.R. 1623. In his floor statement, he explained that the pro posed legislation was designed "to raise all the questions that must be asked for the fullest range of public and private interests to be aware of what Berne adherence will mean now and tomorrow." 2
On July 6, 1987, the Administration requested introduction of legislation that would make American copyright law compatible with the provisions of the Berne Convention. Shortly thereafter, on July 15, 1987, Congressman Moorhead introduced H.R. 2962, the Administration drafted bill.4
Both bills were based, in part, on the toil of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, a group of individuals who joined together in 1986 at the request of the State Department to identify provisions of U.S. law relevant to Berne and to analyze their compatibility with Berne. Under the leadership of its Chairman, Irwin Karp, and the guiding hand of Harvey Winter,
Hereinafter the Berne Convention for the Protection of Literary and Artistic Works will be referred to as the "Berne Convention." When necesssary, a particular Act of the Berne Conven tion is identified. Where a particular article is cited, the reference is to the Paris Act of 1971, unless some other Act is mentioned.
* 133 CONG. Rec. 1293, 1294 (daily ed. March 16, 1987). H.R. 1623 is cosponsored by Mr. Moor head, Mr. Boucher, Mr. Bryant and Mr. Bustamante.
* See Letter from Hon. Malcolm Baldrige to Hon. Jim Wright (dated July 6, 1987). * See 133 CONG. REC. E2897 (daily ed. July 15, 1987).
Office of Business Practices in the Department of State, the Working Group issued a final report and formally submitted it to the executive and legislative branches.5
Prior to creation of the Ad Hoc Working Group, and indeed prior also to the 100th Anniversary of the Berne Convention (which occurred on September 9, 1986), there was heightened interest in the United States accession to the Convention. This interest was manifested during the 99th Congress, when two days of hearings were held by the Senate Judiciary Subcommittee on Patents, Copyrights and Trademarks. After the hearings, a bill was introduced in the Senate by Senator Mathias.
During the 100th Congress, a total of six days of hearings were held in the House of Representatives by the Subcommittee on Courts, Civil Liberties and the Administration of Justice on the two pending legislative proposals (H.R. 1623 and H.R. 2962).8
The first two days of hearings were general in nature, covering all issues raised by U.S. adherence to the Berne Union. On June 17, 1987, the Subcommittee received testimony from the Register of Copyrights (the Honorable Ralph Oman) and a law professor (Professor Lyman Patterson, School of Law, University of Georgia). On July 23, 1987, the Subcommittee heard from a panel of Administration witnesses (the Honorable Malcom Baldrige (the late Secretary of Commerce); the Honorable Clayton Yeutter (United States Trade Representative); and the Honorable W. Allen Wallis (Under Secretary of State); and the Ad Hoc Working Group on U.S. Adherence to the Berne Convention (Mr. Irwin Karp).
On September 16 and 30, 1987, the Subcommittee held hearings on the specific issue of moral rights and the Berne Convention. On September 16th, the Subcommittee heard from Peter Nolan, for the Motion Picture Association of America, and Kenneth Dam, representing IBM, both of whom advocated adherence to Berne, but who testified that current U.S. law on moral rights is sufficient for adherence. The Subcommittee also heard from David Ladd, for the Coalition to Preserve the American Copyright Tradition, and John Mack Carter, for the Magazine Publishers' Association, both of whom opposed adherence to Berne, principally on moral rights grounds. On September 30th, a panel of artists testified in favor of a strong moral rights provision, which would permit certain artists to object to modifications in their works. Those testifying were Sydney Pollack, a film director; Frank Pierson, a screenwriter; William Smith, a visual artist; and Elliot Silverstein, a film director.
• See Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, reprinted in 10 COLUM.-VLA J. LAW & Arts 1 (1986) (hereinafter referred to as Ad Hoc Working Group Final Report).
See Hearings on U.S. Adherence to the Berne Convention Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. (1985-86) (hereinafter referred to as Senate Hearings, 99th Congress).
See S. 2904, 99th Cong., 20 Sess. (1986); 132 CONG. Rec. S14508 (daily ed. Oct. 1, 1986). & Two bills are pending in the United States Senate: S. 1301 (Senator Leahy) and S. 1971 (Senator Hatch, on behalf of the Administration). Two days of hearings were held by the Judiciary Committee Subcommittee on Patents, Trademarks and Copyrights: the first day was held on February 18, 1988, and the second on March 3, 1988. On April 13, 1988, the Subcommittee marked-up S. 1301 and reported it favorably, as amended, to the full Committee. On April 14, 1988, the Committee reported favorably S. 1301 unanimously by voice vote.
See Hearings on Berne Convention Implementation Act of 1987, Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary, 100th Cong., 1st & 2d Sess. (1987-88) (hereinafter referred to as House Hearings).
Professor Edward Danich of the George Mason University Law School; also testified in support of a strong moral rights provision.
On February 9, 1988, the subcommittee conducted a fifth day of hearings, with particular focus on the jukebox compulsory license, formalities and architectural works. Testimony was received from a panel of witnesses on jukebox issues: Gloria Messinger, representing the American Society of Composers, Authors and Publishers (ASCAP); Robbin Ahrold, representing Broadcast Music, Inc. (BMI); and Wally Bohrer, representing the American Music Operators Association (AMOA). A second panel presented testimony on formalities and architectural works: Dean David Walch, on behalf of the American Library Association; and David E. Lawson, for the American Institute of Architects.
On February 10, 1988, the subcommittee held a sixth and final day of hearings. Testimony was presented on all issues by Professor Paul Goldstein, School of Law, Stanford University; Barbara Ringer, Former Register of Copyrights; August W. Steinhilber, Chairman, Educators Ad Hoc Committee on Copyright Law; and Morton David Goldberg, Information Industry Association.
In addition to the six hearing days, during a congressional recess that occurred in November 1987 (during the Thanksgiving holiday week), a delegation of five Committee Members travelled to Geneva, Switzerland, and Paris, France, for consultations with foreign copyright experts from government, academia and private industry on whether the U.S. should join the Berne Convention and, if so what changes would be necessary in our current copyright law. The trip was the first time any country has ever requested foreign consultation on domestic legislation required to join an international intellectual property treaty. Recognized experts in international copyright law from major industrial nations (the United Kingdom, France, West Germany, the Netherlands, Spain, Switzerland, Denmark, Sweden, Finland, and Israel), a socialist country (Hungary), and one developing nation (India), met with the Members in Geneva at the World Intellectual Property Organizationan arm of the United Nations. Bringing to bear their diverse expe riences on the question of U.S. adherence to Berne, the consensus of the consultants was that the U.S. should and can adhere to Berne without making major changes in U.S. law. 10
In Paris, the Members met with international film producers and also with international film directors. The former expressed their concern about moral rights, contending that such laws impinge on the rights of copyright owners and their ability to make and effectively exploit films. They favor a system akin to the one currently in effect in the United States, where the producer, rather than the director or screenwriter, has final control over a film. The directors, on the other hand, advocated stronger moral rights laws in the United States, and decried changes in films made without the consent of the director and screenwriter. Additionally, while in Paris, the Members met with representatives of the French govern
10 A transcript of the W.I.P.O. consultations was prepared and is available as an appendix to the hearing record produced by the Subcommittee on Courts, Civil Liberties and the Administration of Justice, supra note 9. See Roundtable Discussions on United States Adherence to the Berne Convention (November 25-26, 1987) (hereinafter referred to as Roundtable Discussions]