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preemption 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.
SECTION 8. SCOPE OF EXCLUSIVE RIGHTS IN NONDRAMATIC MUSICAL
Section 8 of the bill proposes changes to the current jukebox compulsory license by creating a new licensing system based on negotiations, with the compulsory license used as a fall-back should nego tiations fail.
A new section 116A makes the present coin-operated phonorecord (jukebox) compulsory license system-that seems clearly incompatible with the Berne Convention-subordinate to negotiated licenses where such licenses come into force. The new provisions would authorize such licenses as they come into force and would formalize a negotiating process that could totally supplant the compulsory license. If, after a year, negotiations fail to provide consensual licenses for virtually all music, or if negotiations are terminated at some future date, then a compulsory license that is substantially the same as that provided in current section 116 is available as a fall-back to ensure that jukebox music will always be available to the public. The Copyright Royalty Tribunal would retain jurisdiction over rate-making and distribution functions only to the extent that negotiations fail or consensual licenses expire or are terminated. In that circumstance, and after the filing of a petition, the Tribunal would meet within a year after the failure of negotiations.
The Berne Convention does not allow expressly for compulsory licensing of non-broadcast public performance of music, music as is done presently in the jukebox business. The outright elimination of the compulsory license would, of course, be a solution. But, the variations of laws and regulations that exist in the United States and many of the Berne Union's member states warrant an intermediate position to be taken in the matter. Thus, section 8 encourages voluntary negotiations but permits government intervention if the negotiations fail-a result which may be fairly analogous to various forms of government intervention in Berne countries.
In 1985 jukebox operators and the performing rights societies entered into an arrangement whereby compliance with the compulsory license provisions can lead to rebates on statutory royalties. Section 8 is rooted in this approach towards close, voluntary cooperation.
Specifically, subsection (c) authorizes copyright owners of nondramatic musical works and operators of coin-operated phonorecord players to negotiate and agree upon the terms and rates of roy. alty payments for performances of such works and the proportionate division of fees paid among various copyright owners, and to designate common agents to negotiate, agree to, pay, or receive such royalty payments. The purpose of this provision is to authorize the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC, Inc.--the three performing rights organizations named in current section 116 of the Copyright Act-to negotiate jointly with the Amusement and
Music Operators of America (AMOA), the terms and rates of licenses for performances of copyrighted musical works in any, some or all of their repertories by jukeboxes.
The joint activity among owners of copyrights and operators of coin-operated phonorecord players and their organizations authorized by section 116A would generally be procompetitive since the market involving jukeboxes is dispersed among many small participants for whom negotiation of individual licensing agreements is neither feasible nor economic. It would be costly and inefficient for copyright holders to attempt to negotiate and enforce individual agreements when the revenues produced by a single jukebox are so small. Although subsection (c) authorizes certain joint conduct necessary to achieve mutually agreeable terms and rates of licenses for jukebox performances of copyrighted musical works, and, where voluntary agreements are not achieved, provides for use of a compulsory licensing mechanism based on existing law (17 U.S.C. 116), it is not an authorization for joint conduct extending beyond those statutory terms. Restraints that are ancillary to the authorized joint conduct would, for example, not be accorded any special treatment under this subsection. Existing law would continue to apply to such restraints.
Absent any anticompetitive ancillary restraints, collectively negotiated licensing agreements between copyright owners and jukebox operators preserve the interests of the listening public and will provide an efficient and pro-competitive means to achieve the ends of the copyright laws and the Berne Convention.
SECTION 9. NOTICE OF COPYRIGHT
Section 9 of the bill amends chapter 4 of title 17 in several areas. The intent of all these changes is to make the law with respect to the use of the copyright notice, the registration system, and the system for building the collections of the Library of Congress compatible with Berne while simultaneously doing no more to the present law than is absolutely necessary. The amendments to sections 401 and 402 make use of the copyright notice voluntary-a work will no longer fall into the public domain at any time because it is published without notice. At the same time, if a copyright owner elects to use a notice, its form is specified in the law.
A requirement of notice of copyright on copies of published works has been a feature of United States copyright law, in one form or another, for almost two hundred years. Many user groups, particularly those that are noncommercial, have come to rely upon the information it provides. Certain commercial users have supported the copyright notice as a means of introducing works into the public domain. There is unanimity as to the necessity of eliminating the copyright notice in order to comply with Berne. Section 9 assumes that at least on a transitional basis, the informational utility of the notice as a means of conveniently distinguishing the protected from the unprotected is sufficiently great so as to warrant encouraging its use. It is entirely possible that elimination of the notice formality may not in the end curtail its use. Old habits die hard; it remains useful under the Universal Copyright Conven
tion; and, it is, in all probability, the cheapest deterrent to infringement which a copyright holder may take.
In new section 403, the Copyright Office is given the authority to promulgate regulations concerning how publishers of works consisting in whole or in part of uncopyrightable works of the United States Government shall apprise the public of those portions of the work that are in the public domain and therefore freely copiable.
The bill modifies section 404 to clarify the requirements necessary to invoke the "evidentiary weight of notice" provisions of new sections 401(d) and 402(d), as applicable.
Sections 405 and 406 of current law, which deal with omissions of and errors in the copyright notice, are amended so as to apply only to works published in the United States-with or without a copyright notice-before the effective date of the Act. Works created before the effective date of the Act but only first published after the effective date are subject to the voluntary provisions of the Act and not the mandatory provisions of prior law. This should have little functional effect, since virtually all publications in which the Library is interested now bear a copyright notice, and it seems likely that the Library's compliance activities will remain largely unchanged.
SECTION 10. DEPOSIT OF COPIES ON PHONORECORDS FOR LIBRARY OF
Section 10 of the bill contains a technical amendment to section 407(a) of current law, eliminating the notice requirement.
SECTION 11. COPYRIGHT REGISTRATION
Section 11 amends section 408 of current law, concerning registration, to delete reference to sectin 405(a), since "cure" of a publication without notice is no longer necessary, and to further delete subparagraph (c)2XA), since the "collective works notice" section has been eliminated.
SECTION 12. COPYRIGHT ROYALTY TRIBUNAL Section 12 of the bill amends chapter 8 of title 17, United States Code, in two ways. Subsection (a) provides that if the Copyright Royalty Tribunal ever has to adjust jukebox compulsory license fees, it shall give great weight both to its "final" rates prior to implementation of new section 116 and to the rates contained in any new consensual licenses that are negotiated. Subsection (b) clarifies that if negotiations break down between the performing rights societies and the jukebox operators, and a petition for adjustments of rates is filed with the Copyright Royalty Tribunal, the Tribunal may meet immediately. In this circumstance, the Tribunal would then meet each subsequent tenth calendar year from its last meeting to determine royalty rates.
SECTION 13. WORKS IN THE PUBLIC DOMAIN Section 13 clarifies that 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.
SECTION 14. EFFECTIVE DATE; EFFECT ON PENDING CASES Section 14 provides that this Act, and any amendments made thereby, shall take effect on the day after the date on which the Berne Convention enters into force with respect to the United States. Section 14 also specifies that any cause of action arising under title 17, United States Code, before the effective date of the Act shall be governed by the provisions of such title as in effect when the cause of action arose. In other words, the Act is not retroactive.
V. IMPACT ON EXISTING LAW Due to the significance of the Berne Convention Implementation Act of 1988, it is appropriate to delve further into its impact on current copyright law. The preceding sectional analysis, of course, discusses the legislation under the rubric of each section. The following explanation presents a more in-depth analysis of the most important subjects implicated by the proposed legislation. Discussion is divided into seven subheadings: (1) self-execution; (2) the “moral rights” of authors; (3) formalities; (4) the jukebox compulsory license; (5) architectural works; (6) retroactivity and the public domain; and (7) the effective date of the Act.
A. THE BERNE CONVENTION IS NOT SELF-EXECUTING IN THE UNITED
Pursuant to the United States Constitution, treaties are the supreme law of the land. 29 As such, they supersede prior laws with which they conflict. Some treaties are self-executing: once ratified, they take effect without additional governmental action. Other treaties are not self-executing, and they take effect only after additional governmental action, such as implementing legislation passed by the Congress and signed by the President.30 While the failure to enact necessary implementing legislation may place a country in violation of its international obligations, 31 the terms of the treaty itself generally do not supersede existing laws that conflict.32
Whether the Berne Convention is to be self-executing in any member country depends on the constitution and laws of that country. While its text and negotiating history are relevant to whether the parties intended any self-executing effect, it is ultimately the Constitution and laws of the United States that will determine the answer to this question in the United States. The question has critical implications for the effect of the Convention generally, and in particular for the Committee's decision regarding its obligations under Article 6bis of the Convention. See discussion below.
2. U.S. Const. art. VI, cl. 2.
30 RESTATEMENT (REVISED) Of Foreign Relations Law Of The United States, Tent. Draft No. 6 (April 12, 1985) (hereinafter cited as RESTATEMENT (REVISED)) $ 131(3).
31 RESTATEMENT (REVISED) Vol. 1, Introductory Note at 50. 32 RESTATEMENT (REVISED) $ 135, Comment e.
1. Provisions of the Berne Convention
Article 36 of the Convention, entitled “Application of the Convention by the Provisions of Domestic Law," provides that:
(1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention.
(2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its do
mestic law to give effect to the provisions of this Convention. 33 According to the Guide to the Berne Convention, published by the World Intellectual Property Organization, the measures necessary to ensure the Convention's application will depend on "the constitution of the country in question: in some it becomes part of the law of the land; in others, parliament must pass laws to give effect to the Convention's obligations.” 34 The Guide's analysis of Article 36 states that during the Paris revision,
it was pointed out ... that, in countries according to the
ceptible of direct application.35 By implication, then, the Guide recognizes that there are countries where the Convention is not self-executing, and that alternatives to self-execution are appropriate.
The Guide's analysis of Article 2, paragraph (6) of the Convention supports this conclusion. It notes first that in some countries after ratification, “the Convention becomes part of that country's law: if therefore its wording is apt to confer rights directly, individuals may bring action based on the Convention itself to enforce them.” 36 It then notes that other
countries, notably those following the British legal tradi-
rules. 37 In sum, the provisions of the Convention, and the W.I.P.O. Guide interpreting them, do not determine whether the Convention is self-executing in countries such as the United States. They do, however, make clear that the Convention standing along does not re
33 Berne Convention Art. 36.
34 W.I.P.O. Guide to the Berne Convention for the Protection of Literary Works (Paris Act 1971) (hereinafter cited as W.I.P.O. Guide) 8 36.2 at 141. See statements of Meyer Gabay, Commissioner of Civil Service, Israel; and Margaret Moller, Ministerial Counsellor, Ministry of Justice, Federal Republic of Germany, Roundtable Discussions, supra note 10, November 25, 1987.
35 W.I.P.O. Guide, supra note 34, § 36.5 at 141.