DWIGHT D. OPPERMAN West Publishing Company March 23, 1988 The Honorable Robert W. Kastenmeier and the Administration of Justice RE: S. 1301, S. 1791, H.R. 1623 and H.R. 2962 Dear Chairman Kastenmeier: On behalf of West Publishing Company, I urge your subcommittee's approval of a bill implementing U. S. accession to the Berne Convention. America's creative authors, artists and companies need effective international protection which assures them just recompense for their creativity, protects their works from increasing piracy abroad and encourages their continued creative effort. Our company is involved in the sale and distribution throughout the world of textbooks, legal publications and computer assisted legal research. International protection of these works is vital to the continued maintenance and growth of this international market. Particularly in the area of information technology, copyright law and policy are developing and evolving as ways are sought to deal with questions raised by new technology. Decisions are being made which will affect this country's position as an international leader in this market. Adherence to the Berne Convention will assure the U. S. a role in the development of international copyright policy which vitally affects so many U. S. companies and individual authors. U. S. membership in Berne will require only minimal changes to our current law and will not reduce the copyright protection afforded in this country. The level of protection provided by Berne is high, and U. S. membership will allow us to ensure that it remains so. We have just received this letter from the Associated General Contractors of I also am enclosing a copy of the A201, General Conditions of the Contract for THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA 1957 E Street, N.W. • Washington, D.C. 20006 • (202) 393-2040 • TELEX 279 354 AGC WSH The Associated General Contractors of America supports an amendment to U.S. copyright law which delineates the copyright owner's right to prevent an unauthorized construction from copyrighted plans. Copyright owners may be developer/contractors as well as architects or building owners. The provision, therefore, potentially benefits all construction industry groups. We shall convey this position to the appropriate decision makers in Washington. Our understanding is that nothing in the statute would prevent an innocently infringing contractor from seeking indemnification from the offending party if this enhanced enforcement power causes loss. The protection that we seek is similar to that provided in A201 with regard to patent infringement. tect's consultants, and agents and employees of any of them arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the Architect, the Architect's consultants, and agenus and employees of any of them provided such giving or failure to give is the primary cause of the injury or damage. Owner or a separate contractor excepe with which consent of the Owner and of such separate contractor; such consent shall nor be unreasonably withheld. The Contractor shall not unser sonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. 3.15 CLEANING UP 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. 3.15.2 I the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost thereof shall be charged to the Contractor. 3.16 ACCESS TO WORK 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located 3.17 ROYALTIES AND PATENTS 3.17.1 The Contractor shall pay all royakies and license fees. The Contractor shall defend suits or claims for infringement of patent nights and shall hold the Owner and Architect harmless from loss on account thereof, pur shall not be responsible for such defense or loss when a panicular design process or prod. uct of a particular manufacturer or manufacturers is required by the Contract Documents However, if the Contractor has reason to believe that the required design, process or product is an infringement of a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect 3.18 INDEMNIFICATION 3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attomevs' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subconiractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim damage, loss or expense is caused in part by a panty indemnified hereunder Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 3.18. 3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnifica tion obligation under this Paragraph 3.18 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts 3.18.3 The obligations of the Contractor under this Paragraph 3.18 shall not extend to the liability of the Architect, the Archi ARTICLE 4 MACHITECT 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing echitecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld 4.1.3 In case of termination of employment of the Architect, the Owner shall appoint an architect against whom the contractor makes no reasonable objection and whose status under the Contract Documents shall be that of the former architect. 4.1.4 Disputes arising under Subparagraphs 4.1.2 and 4.1.3 shall be subject to arbitration. 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be the Owner's representative (1) during construction, (2) until final payment is due and (3) with the Owner's concurrence, from time to time during the correction period described in Paragraph 12.2. The Architect will advise and consult with the Own The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified by written instrument in accordance with other provisions of the Contract. 4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed Work and to determine in general if the work is being performed in a manner indicat. ing that the Work, when completed, awill be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check quality or quantity of the Work On the basis of onsite observations as an architect, the Architect will keep the Owner informed of progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work 4.2.3 The Architect will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility 23 provided in Paragraph 3.3. The Architect will not be responsible for the Contractor's failure to carry out the work in accordance with the Contract Durcuments. The Architect will not have control over or charge of and will not be respunsible for acts or omissions of the Con 10 A201-1987 AIA DOCUMENT 1201. GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRICTION FOURTEENTH EDITION AIA 19** THE AMERICAN INSTITI TE OF ARCHITECTS. 1 45 NEW YORK AVENIENT SANHINGTON DC 2ND UNIVERSITY OF SOUTH CAROLINA COLUMBIA, S.C. 29208 SCHOOL OF LAW March 17, 1988 B. Cheryl Terio, Esq. I am writing in response to your request for my comments on an amendment to section 113 of the Copyright Act of 1976 which your organization has proposed to Representative Kastenmeier, Chairman of the House Subcommittee on Courts, Civil Liberties and the Administration of Justice. The amendment, which would add a new subsection, states: The exclusive right of the owner of a copyright of the building or structure depicted. Second, and in my opinion most important, the suggested addition to section 113 recognizes that an architect/copyright owner has protection against the unauthorized use of his copyrighted plans for the construction of a building. As our copyright law stands now, the only right in the copyright bundle that an architect can be sure of is the right to control reproduction of plans and drawings in the form of another set of plans and drawings. Some courts and commentators have suggested that an architect's copyright on his plans does not encompass a right to control their use. See, e.q., Imperial Homes v. Lamont, 458 F.2d 895 (5th Cir. 1972); N. Boorstyn, Copyright Law S 2.25, at 77 (1981)("It was generally accepted under prior case law that the unauthorized The University of South Carolina USC Aiken, USC Salkahatchie. Aliendale, USC Besutort USC Columbia, Coestal |
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