52 that U.S. copyright proprietors would certainly benefit from retroactive protection of our works in Berne states such as Turkey and Egypt. 122 The Committee takes these points seriously; however, we remain persuaded that any solution to the question of retroactivity can be addressed after adherence to Berne when a more thorough examination of Constitutional, commercial and consumer considerations is possible. This Act continues in effect, the balance that Congress carefully crafted in the 1976 Copyright Revision. The public domain is neither expanded nor reduced. G. EFFECTIVE DATE OF THE ACT As has already been made clear in connection with the non-selfexecution of the Berne Convention, implementation of the obligations of the Convention is to be based solely upon domestic law; the Convention is not to be a source of private rights. Under Article 29 of the Convention, one of two possibilities for coming into force of the Convention for the United States exist: either the Convention enters automatically into force thirty days following notification by the Director General of the W.I.P.O to the Berne Union of receipt of the United States instrument of accession; or, the instrument of accession deposited by the United States may specify a subsequent date in which case that date would be controlling. This Act elects the former option and in section 13 it is provided that the Act will come into force one day after the entry into force of the Convention for the United States. The purpose in selecting as the effective date of these amendments a date subsequent to the date of coming into force of the Berne Convention for the United States is to assure that no possibility exists for invalidating the provisions of the Copyright Act on the basis of arguably contrary stipulation in the Berne Convention. VI. OVERSIGHT FINDINGS The Committee makes no oversight findings with respect to this legislation. In regard to clause 2(1)(3)(D) of rule XI of the Rules of the House of Representatives, no oversight findings have been submitted to the Committee by the Committee on Government Operations. VII. STATEMENT OF THE COMMITTEE ON GOVERNMENT OPERATIONS No statement has been received on the legislation from the House Committee on Government Operations. VIII. NEW BUDGET AUTHORITY In regard to clause 2(1)(3)(B) of rule XI of the Rules of the House of Representatives, the bill creates no new budget authority on increased tax expenditures for the Federal judiciary. 122 See Statement of Werner Rumphorst, Legal Director, European Broadcasting Union, Roundtable Discussions, supra note 10, November 26, 1987. 53 IX. INFLATIONARY IMPACT STATEMENT Pursuant to clause 2(1)(4) of rule XI of the Rules of the House of Representatives, the committee feels that the bill will have no foreseeable inflationary impact on prices or costs in the operation of the national economy. X. COST ESTIMATE In regard to clause 7 of rule XIII of the Rules of the House of Representatives, the committee agrees with the cost estimate of the Congressional Budget Office. XI. STATEMENT OF THE CONGRESSIONAL BUDGET OFFICE Pursuant to clause 2(1)(3)(C) of rule XI of the Rules of the House of Represenatives, and section 403 of the Congressional Budget Act of 1974, the following is the cost estimate on H.R. 4262, prepared by the Congressional Budget Office. Hon. PETER W. RODINO, JR., U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, May 5, 1988. Chairman, Committee on the Judiciary, U.S. House of Representatives, Washington, DC. DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R. 4262, the Berne Convention Implementation Act of 1988, as ordered reported by the House Committee on the Judiciary, April 28, 1988. We expect that enactment of the bill would result in additional cost to the federal government of about $400,000 in fiscal year 1989 and $150,000 each year thereafter. The Berne Convention, which has been signed by 76 countries, sets minimum copyright standards aimed at giving copyrighted works international protection. H.R. 4262 would make certain changes to existing U.S. copyright law to conform to codes established under the convention. These changes would be required because several Berne provisions conflict with current U.S. copyright law. Specifically, the bill makes several changes that would (1) give guidance to the courts about how to construe U.S. adherence to the convention, (2) define the subject matter and scope of copyrights under Berne, and (3) define the type of notice, filing, or registration that is required for a work to be protected against unauthorized use. The change in scope of U.S. copyright law would require an initiative on the part of the Copyright Office, a branch of the Library of Congress, to educate both present and potential copyright owners of the changes to existing law. The Copyright Office has indicated that in order to disseminate this new public information they would meet with affected parties, prepare (and subsequently mail) informational pamphlets, and hire several additional information officers. Based on information from the Copyright Office, CBO estimates that the cost of this public information initiative, along with some additional printing costs, would cost the federal government 54 about $400,000 in fiscal year 1989, decreasing to about $150,000 each year thereafter. No costs would be incurred by state or local governments as a result of enactment of this bill. If you wish further details on this estimate, we will be pleased to provide them. With best wishes, JAMES L. BLUM, Acting Director. XII. COMMITTEE VOTE On April 28, 1988, the Committee-with a quorum of Members being present-favorably reported H.R. 4262 by voice vote, no objections being heard. XIII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED In compliance with clause 3 of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman): TITLE 17, UNITED STATES CODE CHAPTER 1—SUBJECT MATTER AND SCOPE OF Sec. 101. Definitions. 102. Subject matter of copyright: In general. 103. Subject matter of copyright: Compilations and derivative works. 104. Subject matter of copyright: National origin. 105. Subject matter of copyright: United States Government works. 106. Exclusive rights in copyrighted works. 107. Limitations on exclusive rights: Fair use. 108. Limitations on exclusive rights: Reproduction by libraries and archives. 109. Limitations on exclusive rights: Effect of transfer of particular copy or phono record. 110. Limitations on exclusive rights: Exemption of certain performances and dis plays. 111. Limitations on exclusive rights: Secondary transmissions. 112. Limitations on exclusive rights: Ephemeral recordings. 113. Scope of exclusive rights in pictorial, graphic, and sculptural works. 114. Scope of exclusive rights in sound recordings. 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords. [116. Scope of exclusive rights in nondramatic musical works: Public performances by means of coin-operated phonorecord players.] 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. 117. Scope of exclusive rights: Use in conjunction with computers and similar information systems.1 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting. 55 § 101. Definitions As used in this title, the following terms and their variant forms mean the following: An "Anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author. "Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. The "Berne Convention" is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on Sep tember 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 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 Con vention 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. "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, [technical drawings, diagrams, and models] diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerend; the design of a useful article, as defined in this section, shall be consid ered a pictorial, graphic, or scultural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptur 56 al features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. § 104. Subject matter of copyright: National origin (a) UNPUBLISHED WORKS.-The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) PUBLISHED WORKS.-The works specified by sections 102 and 103, when published, are subject to protection under this title if (1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a foreign nation that is a party to a copyright treaty to which the United States is also a party, or is a stateless person, whenever that person may be domiciled; or (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a party to the Universal Copyright Convention; or (3) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or (4) the work is a Berne Convention work; or [(4)] (5) the work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domicilaries of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation. (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 provisions 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 virture of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto. |