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(B) by striking out subparagraph (A); and

(C) by redesignating subparagraphs (B) and (C) as subparagraphs (A) and (B), respectively.




(a) INFRINGEMENT OF COPYRIGHT.-Section 501(a) is

6 amended by inserting “except for section 106a,” after “106

7 through 118,".





9 Rights.—Chapter 5 is amended by adding at the end the

10 following:

11 "8 511. Remedies for infringement of moral rights


“(a) GENERAL RULE.-Anyone who violates any of the

13 moral rights contained in section 106a is an infringer of that

14 right.


“(b) Who MAY BRING ACTION.—The author or the au

16 thor's successor in interest is entitled to institute an action

17 for the infringement of any of the moral rights contained in

18 section 106a.


"(c) REMEDIES.-Remedies available for the infringe

20 ment of any of the moral rights contained in section 106a, 21 when proven, shall include injunctive relief as provided in 22 section 502, damages and profits as provided in section 504, 23 and costs and attorney's fees as provided in section 505. The 24 provisions of sections 507 and 508 shall apply to actions con25 cerning the infringement of moral rights to the same extent

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1 as they apply to actions for copyright infringement. For the

2 purposes of applying the provisions of sections 502, 504,

3 505, 507, and 508, and for no other purposes, the court shall

4 treat the infringement of moral rights in the same manner as 5 the infringement of copyright.".



Section 801(b) is amended by adding at the end the

8 following:

9 “In determining, under paragraph (1)(B), whether a return to 10 a copyright owner under section 116 is fair, substantial defer

11 ence shall be given to


"(I) the rates in effect on the day before the effec


tive date of the Berne Convention Implementation Act


of 1987, and


“(II) the rates contained in any license negotiated

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Title 17, United States Code, as amended by this Act,

19 does not provide copyright protection for any work that is in

20 the public domain in the United States.



(a) EFFECTIVE DATE.-This Act and the amendments

23 made by this Act take effect on the day after the date on

24 which the Berne Convention (as defined in section 101 of

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1 title 17, United States Code, as amended by section 4(b) of

2 this Act) enters into force with respect to the United States.


(b) EFFECT ON PENDING CASES.—Any cause of action

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4 arising under title 17, United States Code, before the effec

5 tive date of this Act shall be governed by the provisions of

6 such title as in effect when the cause of action arose.

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Congressional Record

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The ZAKER pro tempore. Under • previous order of the House, the rendeman from Winoongin Mr. KASTOconlrecognband for 15 minutes Mr. LASTELEIER. Mr. Speater, u rear ago Congreu pend the Copyricht Act 1976, the first genes. dreptatoa of our copyright las one 1800. We did . only UKT geun of sortarting in the earty finiter, 000Unuing oith dan of hearing and SI dan of martup in 1985, and ending oth 10 dan of heartna and 25 days al manup in 1975-76. I comraitsed much of my first 10 years in Congress olts cadeavor.

The Copyright Act of 1976 vi bl. rruinan leculative achievement of the funt ma mitude. Legislators of both Darlles understood that copyright les llation nina unique difficulties. While I relatively obscure discipline. Opyright louches every American in their homes, schools, libraries, and vortplacm. Determining the hope of I shich deeply affecus hos all of s may enjoy books. flims, television programming. computer softenre, in. formation products and kentees. musle, and the visual are requires meat caution, particularly in a rapidly changing society such mours that reeks both the free now of Informe tion and the free marketplace.

with the memory of the 1976 revi slon still fresh in mind, I am introduc. Ing legislation today to umend the 1976 Copyright Act. Although narrow in Roope and seemingly Technical. these amendmenus contemplate funds. mental changes in our copyright system. My legislation responds to the same "brooding preknce" that has turked in the background of 0.8. copy. right legislation for 100 yern-the Berne Convention for the Protection of Literary and Artistic Works. In many says te drafted and passed the 1976 a with weather ce on Berne. The bin 1 Introduce today-the Berne Convention Implementauon Act of 1087-removes from lar provisions Incompouble with the proscriptions of the Berne Convention- revised ut

Pane on July 4, ini-and to ou la prossian required by that conventico nel non present in the datuta.

The objective of the bil simple: To permit the adherence of the United Raw to the Terme Convention, N. war hearing and consultation, se determine that berme adherence on balance serve the Interest of the country and it can I am honored to have Wr. Moon foln me MIO sponsor. This kind of otpanthan ind son rescha bed to the 1976 act. I am

man of the administrations concep al support for sdherence to bere and I look for tard to vorting togeth. er sith the executive branch on the imaplementing legislation. I uso antielpake clove working relationship rith the World Intellectual Property Onn. nization (WIPO) and ius director renanl, Dr. Arpad Bogach, on this impor. tant subject. In preparing this diu. I have been fulded by the hard-leured lessons of history-both the history of our domestie copyright revision strug. ales and that of our sevenl unsuccess hun efforts in the post to where to Berme.

My sin besed, in part, on the toll of the Ad Hoc Working Oroup on 0.6. Adhereno to the Berme Convention. I vould Mke the record to relect the hard sort of the nembers of that FOUD. ind in particular those of us chairman, In in Kard, and of the rulding hand in the executive branch. Rervey Winter. from the Office of Business Practices In 0.8. Department of Buate. I could be remise I did not mention the efforts last Congress of

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The taten had to Born. Convention that parted that initiative rooted in part la the destre to promote the taberneto protec tlog of world of Ameri sulhon This wuably would be schiored by haring the United data cabra par. ticular legal rula coupled by TO DO tions, including our major truding partner to Western Europe, Canti kad Japan. But we not have copyright relations with mart, I not al of those natas by virtue of the Univery Copy richt Convention: 1 Berde menaber ship rould not by Iteoul, taatuse the level of protection me not toy tn those stata

Upon clover rcrutiny. the benefit most frequently polsted to in fupport of United Stata adherence to the Berne Convention appean to be enhanced political credibuty in our Global effort to strengthen copyright norma, to suppren piru. No kecure in the countrie of World I realistic minimum standard of pro tection for creative worte. A mayor forum in which this policy objective being sought the Uruguay round of the Gener Agreement on Twith ad Trade (GATTI. where we w meting the adoption of code or standard of conduct relating to protection of total. lectual property within the QATT.

H 1294 Senator Charles Moc. Malhes, Jr.. who introduced similar legislation in the Senate.

Like our law, the Berne Convention has changed over time. tua 76 edhe ents nou include most of the indust lized world, I number of developing countries, and a few nations in Eastern Europe. The United States, the Soviet Union, and the People's Republic of Chins do not adhere. The United Suares and the Soviet Union Nong

Section marked som en door dentistatud as Porn thes the love and not reli aecuting under the Constitution cod lan of the United Stais, noood, that the proposed ledelste lether with

wound the world oo tot Go
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Ne to protec nad promote the copy.
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he should not do on the expense
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conditions we have come to rely ca over the year

The legulation I w tatroducing todu hold to run all of the ques te that must be sted for the full.

nant of private ad puble Inter oots to be inreol what Berbe db anae DeLA DOC And Lomontor. The rol of the ball to stimulate debate about the true and to further understanding about the Berne Convention in i democratie and open keto ting. I have never seen . copyright in that failed to evoke some controversy. and this one will be no exception. It vlu atir debate within the framewort of full public hearing, and give my subcommittee-the Subcommittee on Courts, Civil Liberties and the Admin. istration of Justice-the information It needs to decide how to proceed. The bis first draft und undoubtedly will undergo refinements.

The United States chose not to join the Berne union in the past because ve did not then vent for our society the kind of copyright laws that the convention required. A fresh look is needed, and I encourage my collengues to do so.

This legislation manulled ulter sessing both the level of Berne oblige. tions under the current Paris Act. con. scious of the practices of those states party to Berne at a similar stage of de velopment us the United States that generally share our value of free speech and artistic freedom. Also es. amined were the literally doven of billa introduced over the last 60 year to bring the previous copyright laws into conformity with Berne. Conform. int our lay with Bere may not in. volve many major changes to the Copyright Act of 1976, it will, however. require Congress to move that act . few inches further along in several area where the 1978 act stopped just anort of point of Berne compliance. We may also have to add lev rights proposed, but not accepled in the 1076 revision. The wttmsre political question may become whether or not the country prepared to accept

control the w
hours deadendo.

Copyright experts a otot to which we have aurrent copyright lau. case, none of there ned before me mbo forward to Autog thea w the rery near future le ud must be controalu Por Herence to terde hentation of the forme sopraat notions and parties Importantly, w metade the conditioning of the att author's copyright upon formality. Mans woted Just and long-unerdus stog har doubu Brersco mu consider. however, whether the contattoo ol wch formaliti upect the balance rights and protege copyright proport kon nov live under ind of which for lities have long been a part berpe Ano appen to require more modifica tion of the compulsory loc for the public performance of mude og to called Jukebora nally the more rights rection of the bill acender Uvely debate

In order to examine the terme mue with some specificity, I am proposing w that would, 1 acted clearly place U S.lar in substantial compliance with the provisions of the treats. My bill erns on the side of legalating compliance with Berne rather than remaining silent on the tenue During the hearing process, the rubcommittee we will learn whether il of the propoved udendments are necessary and desirable, whether the treaty compels other changes w well, and whether adherence to the treaty s vorth the price.

The proposed legislation clearly pro ceeds upon the presumption that the Berne Convention is not sell executing and requires implementing legislation. There . u vell, serious doubt us to whether copyright treaties such as the Berne Convention are constitutionally susceptible of sell-execution in any event. Under article I, section & of the Constitution, the power to enact this Nation's copyright and patent laws is located exclusively to the Congress und this power is not diminished or qualified by any potential executive authority to conclude international copyright vingements under which ul or part of those benefits ure extended to forei nationals and their works

Let me now turn to description of the bill It contains 16 sections.

Section 1 of the bu seus forth the short title the Berne Convention Im. plementation Act of 1987."

Section 2 provides, for drafting clar. ity, that whenever in the proposed let islation an amendment is expressed in terms of un amendment to section or other provision, the relerence shall be considered to be made to . section or other provision of uitle 17, United Slates Code.

H 1295 curreal bar, odh meble the United Bola to meet he obligatione n. nalon adhering to the Berne ConvenWoo and no further legislation whe needed and Wind the provisions of Lenne shall be givea eliect under ude 11. Datted Suala Code u amended and shall not be dreally enforceable to any action brought pursuant to the provision of the Berde Convention

in section , the din rould modify thepler 1 of 17. A vould add defin). tons d "wchllectund vortu" "Berne Cooventha" ed "Derne Convention mon. to notion 101. to the rane me Non the definition of "pictartal mph and cuttotund vortet modified aproat to exclude "ucht. tectunl vorte." In section I, rection 107(1) 1 uend. lodurchitectunl vors" l Lbe

of type of copyrighted worth N. though an Mpect of the Berne Coovention not examined with wrious cruting by any group, the protection of architectural wortus appeun to be required by the Berme Convention in hshion not not fully available under title 11. Speeillally, while right hold. en In two dimensional architectural plans or blueprints may enjoy copy. night protection in such sortu conwered "pictorial" sortu, ruch CODY. nicht has not extended to the exclu. sve right to control the building of the structure r depicted in three diDensions. The night of an architect to control the construction of his or her vort is therefore ven besis in our Copyright Act by these amendments:

Section 6 of the bill relates to the pallonal origin of Beme Convention vortus. It umends section 104 of title 17 in two ways: Prolection for foreign worlu is explicitly extended to "Beme Convention sorts" and the proscrip Non tast rell execution is codified This leller codification is fundamental to the entire question of implementing legislation and of adherence to the convention. It should be absolutely clev that I copyright righus all. ble in courts in the Unimed Sula must be found endurvely thin the provisions of title 17. It should also be clear that Suate las rights that are not preopted by Kection 301 ve not u. Sected in any way by this lefutation or by Berne adherence.

Section 7 seus forth I major change to chapter of the Copyrigbt Aa This change is found in ner section 1.Me the "moru rights of the author" rection. This section creates Important Berpe rights to rortus other than

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