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BERNE CONVENTION IMPLEMENTATION ACT OF

1987

TUESDAY, FEBRUARY 9, 1988

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,

AND THE ADMINISTRATION Of Justice,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to call, at 10:05 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier presiding.

Present: Representatives Kastenmeier, Berman, Cardin, Lungren, Coble, and Slaughter.

Staff present: Michael J. Remington, chief counsel; David W. Beier, counsel; Thomas E. Mooney, Joseph V. Wolfe, associate counsels; and Veronica L. Eligan, clerk.

Mr. KASTENMEIER. The committee will come to order.

Mr. COBLE. Mr. Chairman.

Mr. KASTENMEIER. The gentleman from North Carolina.

Mr. COBLE. I ask unanimous consent that the subcommittee permit the meeting to be covered in whole or part by television broadcast, radio broadcast, and/or still photography pursuant to Rule 5 of the Committee Rules.

Mr. KASTENMEIER. Without objection.

This morning the Subcommittee is having its 5th day of hearings on legislative proposals designed to pave the way for United States adherence to the Berne Convention for the Protection of Literary and Artistic Works.

During previous hearings, the Subcommittee centered attention on general questions relating to Berne and also the specific question of moral rights.

Today we will receive testimony about Berne in three other specific areas, the jukebox compulsory license, formalities, and architecture works.

So, without delay, I would like to call our lead-off panel of witnesses. Their testimony will focus on the Berne Convention and the jukebox compulsory license. The panel consists of three individuals all of whom are good friends really of the Subcommittee and have testified before it in the past.

First, Ms. Gloria Messinger, who is the Managing Director of the American Society of Composers, Authors and Publishers; secondly, Mr. Robbin Ahrold is the Vice President, Corporate Relations for

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Broadcast Music, Inc.; and third, Mr. Wally Bohrer, President of the Amusement and Music Operators Association.

If the three of you will come forward, and if you desire to have anyone else accompany you, you might identify them.

TESTIMONY OF GLORIA MESSINGER, MANAGING DIRECTOR, AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS [ASCAP]; ROBBIN AHROLD, VICE PRESIDENT, CORPORATE RELATIONS, BROADCAST MUSIC, INC. [BMI]; WALLY BOHRER, PRESIDENT, AMUSEMENT AND MUSIC OPERATORS ASSOCIATION [AMOA]

Mr. KASTENMEIER. Your statements will be made a part of the record. I am referring to the 15-page statement of ASCAP and the 8-page statement of BMI and also the 4-page statement of the Amusement and Music Operators Association.

We will first call on Ms. Messinger.

Ms. MESSINGER. Thank you very much, Mr. Chairman.

I am the Managing Director of ASCAP. I am most grateful for the opportunity to appear before you in support of the United States adherence to the Berne Convention. ASCAP President, Morton Gold, intended to be here today but unfortunately a longstanding professional commitment prevented him from coming. He sends his regards to the Committee.

ASCAP, the largest organization of its type, paid more royalties than any other performing rights organization in the world. Only last week, wearing another hat in my capacity of President of the Executive Bureau CISAC (that stands for the International Confederation of Societies of Authors and Composers), in that capacity I attended an informal meeting in Geneva, Switzerland at the World Intellectual Property Organization which, as you know, is the administrative arm of the Berne Convention.

At that meeting I was reminded of what Members of this Committee know and what members of the international copyright community also well know, and that is that the United States must adhere to Berne if we are to play a full and active role in the international copyright marketplace.

The Committee also knows that copyrights are one of the few bright spots in our country's dismal picture of balance of trade payments. Adherence to Berne is, therefore, of high national importance and it is of importance not just to music and others of the arts, it is important to the whole information industry containing such well known giants as IBM.

ASCAP has filed a statement in support of H.R. 2962 and H.R. 1623, U.S. adherence to Berne, and ask that it be made a part of the report.

Mr. KASTENMEIER. Without objection.

Ms. MESSINGER. I will confine my very brief remarks to the relationship between the United States adherence to Berne and the jukebox compulsory license. That license is incompatible with Berne. Everybody who has examined the issue seems to agree. The question is how best to replace it so that American law becomes compatible with Berne.

We prefer repeal of the jukebox compulsory license but we recognize that it is in the national interest that adherence to Berne be accomplished quickly by making only those changes in the law that are necessary. For those reasons, we support the general approach taken by all four proposed bills, H.R. 1623, H.R. 2962, S. 1301, and S. 1971.

Voluntary negotiations are to be encouraged and replace the compulsory license. The copyright royalty tribunal stands by if needed. I read with great interest the AMOA statement and I am very pleased they are supporting adherence. I have no wish to relive old battles or retell history, but I cannot let that go by without simply noting for the record our disagreement with the AMOA position in the past. But the details of that disagreement it seems to me are happily irrelevant today.

What is important is that the jukebox people are supporting this legislation in support of Berne. I sit here on the same panel with Wally Bohrer, we are on the same issue and the same side and I am delighted. When the bill goes to mark-up, we suggest certain provisions of S. 1301 are more equitable and ask that they be incorporated into the final bill. We shall, of course, be pleased to submit a draft incorporating our suggestions for your consideration.

Finally, I wish to stress ASCAP's willingness to do everything possible to reach reasonable accommodation with the jukebox interests. We have shown that willingness by our voluntary agreement with the AMOA reached, Mr. Chairman, through your good offices and of our support for a national jukebox week. We assure the Committee we will leave no stone unturned in our efforts to reach a voluntary agreement with all parties.

Mr. Chairman, we applaud your efforts for U.S. adherence to Berne. I thank you very much for the opportunity to appear. [The statement of Ms. Gloria Messinger follows:]

STATEMENT OF

THE AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS

In Support of

H.R. 1623

H.R. 2962

and

UNITED STATES ADHERENCE TO
THE BERNE CONVENTION

Before the

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES AND THE ADMINISTRATION OF JUSTICE

of the

COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES

February 9, 1988

The American Society of Composers, Authors and

Publishers ("ASCAP") submits this statement in support of
United States adherence to the Berne Convention for the

Protection of Literary and Artistic Works (Paris Act of 1971) ("Berne"). We support generally the pending bills to implement that adherence H.R. 1623, introduced by Chairman

-

Robert W. Kastenmeier, and H.R. 2962, introduced by Representative Carlos J. Moorhead on his behalf and on behalf of Representative Hamilton Fish.

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A. A Brief Description of ASCAP

ASCAP is an unincorporated membership association formed in 1914 by Victor Herbert, John Philip Sousa and a small group of the leading composers, authors and publishers of that day. We now have a membership of about 40,000 composers, lyric writers and publishers of copyrighted music. We license only the right of nondramatic public performance of the copyrighted music in our repertory, collect license fees, and distribute to our members and to affiliated foreign societies, all of our revenues, less only operating expenses. In 1987, ASCAP's operating expenses were about 15% of its

gross revenues 85% was distributed as royalties.

1

For a more complete description of ASCAP and its

operations, see, BMI v. CBS, 441 U.S. 1 (1979); Korman and Koenigsberg, Performing Rights in Music and Performing Rights Societies, 33 J. Copr. Soc. 332 (1986).

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