United States of America

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THE BERNE CONVENTION IMPLEMENTATION ACT OF 1987 The SPEAKER pro tempore. Under a previous order of the House, the gentleman from Wisconsin (Mr. KASTENMan) to recognized for 15 minutes.

Mr. KASTENMETER. Mr. Speaker, 11 years ago Congress passed the Copyright Act of 1976, the first general revision of our copyright law since 1909. We did so only after years of work-starting in the early fifties, continuing with 23 days of hearings and $1 days of markup in 1965, and ending with 11 days of hearings and 25 days of markup in 1975-76. I committed much of my first 18 years in Congress to this endeavor.

The Copyright Act of 1976 was a bipartisan legislative achievement of the first magnitude. Legislators of both parties understood that copyright leg. islation raises unique difficulties. While a relatively obscure discipline. Copyright touches every American in their homes, schools, libraries, and work places. Determining the scope of a law which deeply affects how all of us may enjoy books, films, television programming, computer software, information products and services. music, and the visual arts requires great caution, particularly in a rapidly changing society such as ours that seeks both the free flow of informa tion and the free marketplace.

With the memory of the 1976 revision still fresh in mind, I am introducing legislation today to amend the 1976 Copyright Act. Although narrow in scope and seemingly technical, these amendments contemplate fundamental changes in our copyright system. My legislation responds to the same "brooding presence" that has lurked in the background of U.S. copy. right legislation for 100 years-the Berne Convention for the Protection of Literary and Artistic Works. In many ways we drafted and passed the 1976 act with a weather eye on Berne. The bill I introduce today-the Berne Convention Implementation Act of 1987-removes from law provisions incompatible with the proscriptions of the Berne Convention-as revised st

Paris on July 24, 1971-and adds to our law provisions required by that convention not new present in the statute.

The objective of the bill is simple: To permit the adherence of the United States to the Berne Convention, f. after hearings and consultations, we determine that Berne adherence an balance serves the interests of this country and its citizens. I am honored to have Mr. MOORHEAD join me as a cosponsor. This kind of bipartisan tradition reaches back to the 1976 act. I am aware of the administration's conceptual support for adherence to Berne and I look forward to working together with the executive branch on the implementing legislation. I also anticipate a close working relationship with the World Intellectual Property Orga nization (WIPO) and its director general, Dr. Arpad Bogach, on this impor tant subject. In preparing this bill. I have been guided by the hard-learned lessons of history-both the history of our domestic copyright revision strug gles and that of our several unsuccess. ful efforts in the past to adhere to Berne.

My bill is based, in part, on the toll of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention. I would like the record to reflect the hard work of the members of that group, and in particular those of its chairman, Irwin Karp, and of its guld. ing hand in the executive branch. Harvey Winter, from the Office of Business Practices in U.8. Department of State. I would be remiss if I did not mention the efforts last Congress of

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Senator Charles McC. Mathias, Jr.. who introduced similar legislation in the Senate.

Like our law, the Berne Convention has changed over time. Its 76 adher ents now include most of the industrialized world, a number of developing countries, and a few nations in Eastern Europe. The United States, the Soviet Union, and the People's Republic of China do not adhere. The United States and the Soviet Union along

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The interest in adherence to Berne Convention that sparked this Initiative is rooted in part in the desire to promote the international protection of works of American authors This arguably would be achieved, by having the United States embrace particular legal rules accepted by 76 nations, including our major trading partners in Western Europa, Canada. and Japan. But we now have copyright relations with most, if not all, of these states by virtue of the Universal Copyright Convention: and, Berne membership would not, by itself, increase the level of protection we now enjoy in those states.

Upon closer scrutiny, the benefit most frequently pointed to in support of United States adherence to the Berne Convention appears to be enhanced political credibility in our global effort to strengthen copyright norms, to suppress piracy, and to secure in all the countries of the world a realistic minimum standard of protection for creative works. A major forum in which this policy objective is being sought is the Uruguay round of the General Agreement on Tariffs and Trade (GATT), where we are seeking the adoption of a code or standard of conduct relating to protection of intellectual property within the GATT.

that standard or the minimum coena of the Berne Convention. And if we Join Beras, our trade negotialers around the world could insist on these standards as those that constitute ade quate protection for GATT

bilateral purposes.

While we all agree that prot our creative works abroad is oft adequate, everyone does not

that this is the case with respect to our own works under our own copy. right law. We are nevertheless being called upon to modify the equilibrium of our domestic copyright law in order to help secure better protection for our authors in other countries. We want to protect and promote the copyright export earnings of U.B. industry, but we should not do so at the expense of the unique needs and traditions of our society and our preferences as to the proper mix of rights, limitations, and conditions we have come to rely on over the years.

The legislation I am introducing today seeks to raise all of the ques tions that must be asked for the fullest range of private and public interesta to be aware of what Berne adherence will mean now and tomorrow. The goal of the bill is to stimulate debate about the issues and to further understanding about the Berne Convention in a democratic and open setting. I have never seen a copyright bill that failed to evoke some controversy. and this one will be no exception. It will stir debate within the framework of full public hearings, and give my subcommittee-the Subcommittee on Courts, Civil Liberties and the Administration of Justice-the information it needs to decide how to proceed. The bill is a first draft and undoubtedly will undergo refinements.

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

This legislation was drafted after assessing both the level of Berne obligations under the current Paris act, conscious of the practices of those states party to Berne at a similar stage of development as the United States that generally share our values of free speech and artistic freedom. Also examined were the literally dozens of bills introduced over the last 60 years to bring the previous copyright laws into conformity with Berne. Conform ing our law with Berne may not in. volve many major changes to the Copyright Act of 1976; it will, however. require Congress to move that act a few inches further along in several areas where the 1976 act stopped just short of a point of Berne compliance. We may also have to add a few rights proposed, but not accepted. in the 1976 revision. The ultimate political question may become whether or not the country la prepared to accept

copyright notions that were abio amarely a decade ago.

Copyright experts disagre extent to which we have current copyright law. What case, none of these experts i fied before my suboszamities. I leak forward to giving them this opportunity in the very near future. Serious lasues must be confronted. For exan pis, adherence to Berne will require the elimination of the formality of copyright notice; and, perhaps importantly, will preclude the conditioning of the existence author's copyright upon any sor formality. Many will feel this to be a Just and long-overdus stap; some will have doubts. Everyone must consider. however, whether the elimination of such formalities upsets the balance of rights and privileges copyright propri etors now live under and of which for malities have long been a part. Berne also appears to require some modifica tion of the compulsory license for the public performance of music on socalled Jukeboxes. Finally the moral rights section of the bill will engender Lively debate.

In order to examine the Berne issue with some specificity, I am proposing a bill that would, if enacted, clearly place U.S. law in substantial compli ance with the provisions of the treaty. My bill errs on the side of legislating compliance with Berne rather than remaining silent on the issues. During the hearing process, the subcommittee we will learn whether all of the proposed amendments are necessary and desirable, whether the treaty compels other changes as well, and whether adherence to the treaty is worth the price.

The proposed legislation clearly proceeds upon the presumption that the Berne Convention is not self-executing and requires implementing legislation. There is, as well, serious doubt as to whether copyright treaties such as the Berne Convention are constitutionally susceptible of self-execution in any event. Under article I, section 8 of the Constitution, the power to enact this Nation's copyright and patent laws is allocated exclusively to the Congress and this power is not diminished or qualified by any potential executive authority to conclude international copyright arrangements under which all or part of those benefits are extended to foreign nationals and their works.

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

Section 1 of the bill sets forth the short title the "Berne Convention Im. plementation Act of 1987."

Section 2 provides. for drafting clar ity, that whenever in the proposed legislation an amendment is expressed in terms of an amendment to a section or other provision, the reference shall be considered to be made to a section or other provision of title 17, United States Code.

Section 3 asts furth several sional declarations, including First, that the Berne Convention- not self executing under the Constitution and laws of the United States; second, that the proposed legislation together with

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current law, will enable the United Biales to meet its obligations as a nation adhering to the Berne ConvenLion and no further legislation will be nerded: and third, the provisions of Berne shall be given effect under utle 17. United States Code as amended, and shall not be directly enforceable In any action brought pursuant to the provisions of the Berne Convention Roelf.

In section 4, the bill would modify chapter 1 of 17. It would add definitions of "architectural works," "Berne Convention" and "Berne Convention work," to section 101. In the same section, the definition of "pictorial graphic, and sculptural works" is modified expressly to exclude "architectural works."

In section 8, section 102(a) is amended to add "architectural works" to the list of types of copyrighted works. Although an aspect of the Berne Convention not examined with serious scrutiny by any group, the protection of architectural works appears to be required by the Berne Convention in a fashion not now fully available under title 17. Specifically, while rights holders in two-dimensional architectural plans or blueprints may enjoy-copyright protection in such works as considered "pictorial" works, such a copy. right has not extended to the exclusive right to control the building of the structure so depicted in three dimensions. The right of an architect to control the construction of his or her work is therefore given a basis in our Copyright Act by these amendments:

Section 6 of the bill relates to the national origin of Berne Convention works. It amends section 104 of title 17 in two ways: Protection for foreign works is explicitly extended to "Berne Convention works" and the proscription against self-execution is codified. This letter codification is fundamental to the entire question of implementing legislation and of adherence to the convention. It should be absolutely clear that all copyright rights at all. able in courts in the United States must be found exclusively within the provisions of title 17. It should also be clear that State law rights that are not preempted by section 301 are not af fected in any way by this legislation or by Berne adherence.

Section 7 sets forth a major change in chapter of the Copyright Act. This change is found in a new section 106a, the "moral rights of the author" section. This section creates important Berne rights in works other than

works made for hire. The rights of "paternity" and "Integrity." are provided, and are independent of the economic rights in the work. The right of paternity means that authors may claim authorship in their works, independently of any license or convey. ance of their copyrights; the right of integrity gives them power to object to any distortion, mutilation, or alteration of their works that would prejudice the author's honor or reputation. Again, such objections could be made by the author even where the author has parted with the copyright. Since the 1950's, when close examination of the moral rights question under United States law began, it has been argued that rights substantially equiv. alent to moral rights as they exist in States of the Berne Union are provid ed for in a variety of laws considered together. The Lanham Act, rules of unfair competition, certain of the economic rights under copyright and the common law of the 50 States. There is Do doubt that the Berne Convention requires recognition of these rights. The question is whether such rights exist with the degree of national uni. formity and predictability which

should be provided in order fairly to comply with Berne requirements. I therefore propose a provision recogniz ing moral rights. While statesmanship and the spirit of political compromise may, in the final reckoning, work a different solution to the moral rights question, I am reluctant to reject at the outset the necessity of recognition of moral rights which may be a great interest to authors and artists, if not to those who deal with their works.

A second major change in current law occurs in the complete revision of section 116, dealing with the jukebox "compulsory license." Section 8 of the bill strikes subsections (a) through (e) of current law. A new section 116 makes the present jukebox compulsory license system-that seems clearly incompatible with Berne-subordinate to negotiated licenses where such u. censes come into force. The new provi. sions would authorize where such u. censes as they come into force and would formalize a negotiating process that could totally supplant the com. pulsory license. If, after a year, negoti. ations fail to provide consensual censes for virtually all music, or if negotiations are terminated at some future date, then a compulsory license substantially the same as that in the present section 116 is "standing by" to ensure that jukebox music will always be available to the public. The Copy. right Royalty Tribunal would retain Jurisdiction over ratemaking and dis. tribution functions only to the extent that negotiations fail or consens al li censes expire or are terminated. I am aware that the provisions of the Berne Convention do not allow expressly for compulsory licensing of nonbroadcast public performances of music as is done presently in the jukebox busi ness. The outright elimination of the

compulsory llorase would, of course, be a solution. But, the different maizes of antitrust and copyright regulations which exist in the United States and many of the Berne Union's member states may warrant an intermediate position to be taken in the matter. In effect, the system proposed in the bill would condition Government review of voluntary negotiations upon the fallure of negotiations-a result which may be fairly analogous to almallar sorts of reviews permitted under the Jauz of Berne countries. In any event. several years ago in my presence, jukebox operators and the performing rights societies entered into an ar rangement whereby compliance with the compulsory license provisions can lead to rebates on statutory royalties. In this wholly worthwhile step toward close, voluntary cooperation, both groups have agreed not to propose changes in the compulsory license without consultation. My proposal here is intended to precipitate such consultations, looking toward a bal anced solution which preserves the interests of both the groups and those of the consumer in being able to enjoy in amall, local, establishments, some reasonably priced popular music.

Section creates a new section 110 of title 17. The new section limits the moral rights granted by new section 106a by providing that they are freely alienable and subject to waiver, in keeping with traditional property doctrine in this country. New section 110. also provides that, unless otherwise provided, traditional editing, adapting. and arranging practices of publishers, broadcasters, motion picture studios. and the like shall not infringe an author's moral rights. Section 9 also sets forth a new section 120, which clarifies the scope of copyright in architectural works by limiting protection to the arUstic character and artistic design of a building, rather than to its processes or methods of construction. New sec tion 120 also permits others to make two-dimensional reproductions of a copyrighted building without infring. ing the building copyright, when the building is in a location to which the public has access. Even when a building is protected by copyright, remedies for another's construction of an infringing building are limited. If con struction of an infringing building has substantially begun, that is, if structural work has been at least partially completed, no injunctive relief will be available to stop construction, nor shall an infringing building be subject to demolition or seizure. Unsaid, but worth noting, is the fact that architec tural works would be subject to all of the limitations and exceptions found in the present copyright law, most par. ticularly fair use. Purther, owners of buildings embodying architectural works are allowed to modify such structures without fear of violating either the economic or moral rights of the architect, so long as the modifica

tions are

hance the utility of the bulding

Section 10 of the bill amends chapter 4 of title 17 in several areas. The intent of all these changes is to make the law with respect to the use of the copyright notice, the registration system, and the system for building the collections of the Library of Congress compatible with Berne while smultaneously doing no more to the present law than is absolutely means

wy. The amendments to section 401 and 403 make use of the copyright stice voluntary- work will no be injected into the pub emain at any time because it in firat published without notics. At the mme

me, if a copyright owner elects to use a notice, its form is specified in the bv.

A requirement of notice of copyright on copies of published works has been a feature of United States copyright low, in one form or another, for almost 200 years. Many user groups, particularty noncomisarial, have come to rety upon the information it provides. Certain commercial users have ported the copyright notice SA &

injecting works into the domain. There is apparently ty as to the necessity of elim the copyright notice in ord comply with Berne. My bill, be samemes that at least on a transitio basis, the informational utility of notice as a means of conveniently tinguishing the protected from the unprotected is sufficiently great so as to warrant encouraging its use. It is n tirely possible that elimination of the notice formality may not in the end curtail its use. Old habits die hard; it remains useful under the Univer Copyright Convention; and, it is, in all probability, the cheapest deterrent to infringement which a copyright holder may take. The propriety and efficacy of these incentives can be considered in the course of hearings on the bill.

In new section 403. the Copyright Office is given the authority to promulgate regulations concerning how publishers of works consisting in whole or in part of uncopyrightable works of the US. Government shall apprise the public of those portions of the work that are in the public domain and therefore freely copiable.

The bill repeals section 404, since no notice whatsoever need appear on a collective work, or on contributions thereto.

Sections 405 and 406, which deal with omissions of and errors in the copyright notice, are amended so as to apply only to works published in the United States-with or without a copyright notice-subject to mandatory deposit in the Library of Congress. This should have little functional effect. since virtually all publications in which the Library is interested now bear a copyright notice, and it seems likely that the Library's compliance activities will remain largely unchanged.

Section 11 of the bill contains a

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technical amendment to section 407(a) of current law, eliminating the notice requirement.

Section 13 amends section 408 of current law, concerning registration, to delete reference to section 408(a) since "cure" of a publication witho notice is no longer necessary, and to further delete subparagraph (ex3xA since the "collective works notice" tion has been deleted.

Section 13 of the bit ame tor of uitle 17, relating to

gement and remedies

801(a) is amended to reflect the
that violations of the moral rights
vided in new section 108a are not e
right infringements. New section
addresses infringements of moral
rights and provides that potential rem-
edies include injunctions, actual and
statutory damages, and costs and at-
torney's fees.

Section 14 of the bill amends chapter 8 of title 17, by providing that if the Copyright Royalty Tribunal ever has to adjust jukebox compulsory ense fees, it shall give great weight both to its "final" rates prior to implementation of new section 116 and to the rates contained in any new conseDsual licenses that are negotiated.

Section 15 clarifies that title 17. United States Code, as amended by this act, does not provide copyright protection for any work that is in the public domain in the United States.

Section 16 provides that this act, and any amendments made thereby, shall take effect on the day after the date on which the Berne Convention enters into force with respect to the United States. Section 16 also specifies that any cause of action arising under title 17. United States Code, before the effective date of the act shall be governed by the provisions of such title as in effect when the cause of action arose. In other words, the act is not retroactive.

It may be useful to explain why certain provisions which might have been Included in the bill were not. To reiterate, the approach of the legislation is to include, rather than exclude, proposals where the plain meaning of the convention and the practices of Berne Union states-particularly those shar ing our legal tradition-appear to require changes in current copyright law. Nonetheless, the elimination or modification of the provisions of the 1976 Copyright Act which govern the renewal of copyrights which were in their first term of protection when the new law came into effect is not proposed. The renewal provisions of the 1976 Copyright Act are essentially transitional in nature; they do not apply to works which acquired copy. right protection under Federal law after the effective date of the 1976 act. The renewal system is replaced by the wholly new approach of the 1976 act: A unitary term of protection: and, pro

the new law in ord contracts and, aiss, Copyrights remarked people have recogni tempt to improve the effect would compound

confusion and it would be bette to retain the present language which at least has a background of many years of interpretation and practics." (1968 Supplementary Report of the Register on Copyright Law Revision at 96.J

Additionally, the bill does not pose the retroactive protection works which may have fallen into the U.8. public domain due to reasons other than the expiration of their terms of copyright. There seems to be general agreement among those who have examined the question that arti cle 18 of the Berne Convention leaves considerable scope to national discretion in dealing with the retroactive protection of the convention. Because the public domain is precisely what it says it is the common property of the people to use as they see fit, in or out of commerce-I am strongly disinclined to restore controls over this her. itage to proprietary interests.

This brief summary, Mr. Speaker, suggests that even under the best of circumstances, Berne adherence faces an uphill climb. I have highlighted some of the dangers off the beaten track, and I urge all of my colleagues to study the bill closely. It could be one of the most historic efforts we undertake in the 100th Congress, or it could be a difficult endeavor to start. Let us commence.