patible with Berne as regards foreign works, it is clear that the Berne Convention is irrelevant to copyright provisions pertaining to U.S. works. Second, an important consensus has emerged at hearings in this Committee that the Berne Convention is not, in the lawyer's phrase, "self-executing". The Berne Convention implicitly recognizes the national and cultural distinctions that make up so much of the world's artistic heritage. The intention is to preserve and protect this heritage, not destroy it. The Berne Convention therefore calls on its adherents to provide copyright protection for the creators of artistic works performed or sold outside the country where they were originally copyrighted. Because the Berne Convention is not "self-executing", the President and the U.S. Congress must decide what, if any, changes in U.S. law are needed to make our laws compatible with Berne; U.S. adherence to the Berne Convention will not automatically result in U.S. law being changed to accord with Berne's provisions. AMOA urges that Congress make its intention to that effect indisputably clear. Let me at this point take a few minutes to review the histkry of the jukebox compulsory license. As this committee knows, until 1976, the performance of music by jukeboxes was exempt from royalties except, of course, for the royalty paid on purchase of the record. This provision of the 1909 Copyright Act recognized that owners of coin-operated record machines already pay significant royalties through their purchase of records. Under this system, jukeboxes flourished and the publicity encouraged sales of recorded music, generating copyright flow to creators and performers. In 1976, the Congress ended this exemption. Recognizing the impracticality of setting jukebox fees location by location and the minimal profitability of most jukeboxes, Congress adopted the perjukebox annual compulsory license. Overseas, during this time, the jukebox tradition never developed. Of course, the original drafters of the Berne Convention in 1886 had never heard of the jukebox; they were working three years before its invention in San Francisco in 1889. In most Berne Convention countries, jukeboxes are still less well-known than in the United States. This may be because the copyright laws of those countries inadvertently discourage jukeboxes. As a result there are few jukeboxes; the industry is constrained, and the public hears few records in this manner. An important means by which the people of the Berne convention countries might hear more musicparticularly popular music from the United States-and become more familiar with the works of American artists is underutilized. This is not a pattern we should wish to adopt at home. Of course, the present compulsory license system is also susceptible to abuse. Under pressure from the performing rights societies, the rates for 1983 were sharply increased. This short-sighted action spurred a new decline in the number of jukeboxes, particularly operator-owned boxes. The new fees are out of line with those for background music and the requirement that a multi-site operator has to pay his registration fees for all of his jukeboxes all at once in the first month of the year is a severe financial hardship. Jukebox operators had no choice but to walk away from newly unprofitable locations. In many cases, they simply sold the jukebox to the owner of the tavern or restaurant-leaving responsibility for maintenance, record replacement, and registration with that individual owner. We were able to negotiate with the performing rights societies a voluntary agreement which provided rebates-in essence, reductions on the license rate for 1985 and, after months of debate over technicalities, for part of 1986. But with the continuing decline in operator-owned locations, targets set in this agreement for rebates in 1987 have been missed. Unless this agreement is revised, future targets will also be missed. We have a reverse chicken-and-egg situation: as fees go up, individual locations, which are less likely to register have an economic advantage over larger operators; ownership of jukeboxes therefore shifts to individual locations; registrations decline still further; and the burden falls all the more heavily on the responsible firms which comply. Enforcement is difficult and ownership by responsible businessmen is discouraged. We describe this history to illustrate that the existing compulsory jukebox license, as presently operating and presently enforcedthat is, discriminatorily and unequally-is a far from perfect system. We hope to develop recommendations for improvement in this system. However, to discard this system with nothing better in its place, would be the end of the American Jukebox tradition. Similarly, to throw out the compulsory license for works of foreign origin would serve only to end all playing of foreign works on jukeboxes in the U.S. This would hardly be of benefit to foreign composers; and we wonder if such action could lead to retaliation against U.S. composers overseas. In this context, we support H.R. 1623, as introduced by Mr. Kastenmeier and Mr. Moorhead and co-sponsored by several other distinguished members of this committee. Section 8, preserving voluntary negotiations, with the compulsory license to take effect if these negotiations fail, is the best solution now available. This Section would make U.S. law compatible with Berne without throwing out the compulsory license or closing off the possibility of a better system in the future. Dr. Arpad Bogsch, director general of the World Intellectual Property Organization (which administers the Berne Convention), in material submitted for the record of hearings in the Senate Judiciary Committee in 1985, reported that some Berne Convention countries have a de facto compulsory license and confirmed that provisions similar to those in Section 8 of H.R. 1623 would be compatible with Berne. In conclusion, Mr. Chairman, we believe it is essential that the record of this legislation, if not the legislation itself, make clear the view of this Committee and the Congress that Berne not be selfexecuting. Adherence to Berne neither changes U.S. law nor rules out further refinements in U.S. copyright law in the future. Until or unless the Congress should choose to make further changes in law, the existing compulsory license would be retained under H.R. 1623, taking effect if we and the copyright societies are unable voluntarily to agree on better and more equitable systems. Nor, by the same coin, would U.S. adherence to Berne prevent the Congress from considering future revisions to the existing compulsory li cense. H.R. 1623, in conclusion, is a carefully-crafted bill. It preserves the option that copyright owners and jukebox operators may reach voluntary agreements; preserves the compulsory license as the fallback to voluntary agreements until something better is put in its place; and leaves open the options of this Committee to review the compulsory license, the fees paid under it, and the means of enforcement, in the future. In this complex situation, Mr. Chairman, you and the co-sponsors of this legislation have worked out the best and wisest course. We appreciate your understanding and believe that the jukebox industry-again, with the support of the performing rights societies-can continue to bring the best of both American and foreign music to our people. [The statement of Walter Bohrer follows:] AMUSEMENT & MUSIC AMOA OPERATORS ASSOCIATION AMUSEMENT AND MUSIC OPERATORS ASSOCIATION 1101 CONNECTICUT AVENUE, NW WASHINGTON, DC 20036 • TELEPHONE (202) 857-1100 STATEMENT BY WALTER BOHKER PRESIDENT AMUSEMENT AND MUSIC OPERATORS ASSOCIATION ON H.R. 1623 BERNE CONVENTION IMPLEMENTATION ACT OF 1988 BEFORE THE SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, & HOUSE JUDICIARY SUBCOMMITTEE FEBRUARY 9, 1988 WASHINGTON, DC Statement by Walter Bohrer, President, Amusement and Music Operators Association, before the House Judiciary Committee, Subcommittee on Courts, Civil Liberties, & the Administration of Justice, on H.R. 1623, the "Berne Convention Implementation Act of 1988", February 9, 1988. Mr. Chairman and members of this Committee, I am Walter Bohrer, president of Hastings Distribution Company of Milwaukee, Wisconsin and of the Amusement and Music Operators Association. With me is Robert Wilbur, director of our Washington office. The AMOA represents over 1000 firms throughout the United States which provide jukeboxes, video games, and other coin-operated entertainment devices used by our citizens in hundreds of thousands of locations throughout our country. First, Mr. Chairman, we want to thank you for holding this hearing on a unique part of copyright law--the jukebox compulsory license--and the effect on the U.S. jukebox industry of ratification of the Berne Convention. We also thank you for introducing last week House Joint Resolution 446 in honor of the 100th anniversary of the jukebox, authorizing and requesting the President of the United States to declare the week of October 30-November 5 as National Jukebox week. In 1889, Louis Glass fitted a coin slot on a wax cylinder Edison machine and placed it in the Palais Royale saloon in San Francisco. Ever since, the jukebox has been one of the most popular means of bringing musical expression to our people, wherever we gather to relax, share our experiences, and take pride in our musical and cultural diversity. Before the radio and far before the age of television, the jukebox became the means by which the musical |