2 PROSCRIPTION OF FALSE DESIGNATION OF ORIGIN (§43(A)), AND PROVISION FOR THE PROTECTION OF MORAL RIGHTS UNDER THE COPYRIGHT HONOR. 2. ARCHITECTURAL WORKS. THE TWO BILLS DIFFER SLIGHTLY IN THE WAY THEY DEFINE "ARCHITECTURAL WORKS," IN THE SCOPE OF STRUCTURE." THUS, H.R. 1623'S DEFINITION CONTAINS AN ARTISTIC DEFINITION. 3 THE TWO BILLS ALSO DIFFER IN THEIR LISTING OF PROTECTED WORKS RELATED TO THE ARCHITECTURAL WORK. THE ADMINISTRATION WORKS. AS TO THE SCOPE OF PROTECTION OF ARCHITECTURAL WORKS, H.R. 1623 IS MORE GENERAL THAN THE ADMINISTRATION BILL. H.R. 1623 PROVIDES ($9) THAT THE RIGHTS OF A COPYRIGHT OWNER IN AN ARCHITECTURAL WORK "SHALL APPLY ONLY TO THE WORK'S ARTISTIC CHARACTER AND ARTISTIC DESIGN." THE ADMINISTRATION BILL (§4(c)) REFERS SPECIFICALLY TO RIGHTS ENUMERATED IN SECTION 106 OF THE COPYRIGHT LAW. IT PROVIDES THAT THE RIGHTS OF A COPYRIGHT HOLDER IN ARCHITECTURAL WORKS ARE "LIMITED TO THE RIGHTS SPECIFIED IN CLAUSES (1), (2), (3) AND (5) OF SECTION 106, (THE RIGHTS OF REPRODUCTION, PREPARATION OF DERIVATIVE WORKS, DISTRIBUTION, AND DISPLAY). BOTH BILLS PROVIDE THAT THE COPYRIGHT IN AN ARCHITECTURAL WORK IS NOT INFRINGED BY THE MAKING OF TWO-DIMENSIONAL REPRESENTATIONS THEREOF; IN H.R. 1623 THIS EXEMPTION IS AVAILABLE ONLY "WHEN THE WORK IS ERECTED IN A LOCATION ACCESSIBLE TO THE PUBLIC" ($9). . THE BILLS ALSO DIFFER AS TO LIMITATIONS ON REMEDIES FOR INFRINGEMENT OF AN ARCHITECTURAL COPYRIGHT. BOTH PRECLUDE THE COPYRIGHT OWNER FROM OBTAINING AN INJUNCTION RESTRAINING CONSTRUCTION OF AN INFRINGING BUILDING "IF CONSTRUCTION HAS SUBSTANTIALLY BEGUN," AND FROM OBTAINING A COURT ORDER FOR SEIZURE OR 4 DESTRUCTION OF THE BUILDING. THE ADMINISTRATION BILL ($4(c)) WOULD ALSO PRECLUDE THE COPYRIGHT OWNER FROM OBTAINING A COURT ORDER FOR IMPOUNDMENT OF THE INFRINGING BUILDING. THE ADMINISTRATION BILL GIVES THE BUILDING OWNER MORE CONTROL OVER THE COPYRIGHTED BUILDING ONCE CONSTRUCTION IS COMPLETE ($4)c)). THE BUILDING OWNER IS AUTHORIZED TO MAKE NECESSARY, ALTERATIONS TO, RECONSTRUCT, OR EVEN TO DEMOLISH THE BUILDING WITHOUT THE AUTHOR'S CONSENT. IN H.R. 1623 ($9), THE BUILDING OWNER IS AUTHORIZED ONLY TO MAKE MINOR ALTERATIONS IN ORDER TO ENHANCE THE UTILITY OF THE BUILDING. 3. INNOCENT INFRINGER DEFENSE. THE TWO BILLS DIFFER SLIGHTLY WITH REGARD TO THE INNOCENT INFRINGER DEFENSE. SECTION 405(B) OF THE CURRENT COPYRIGHT LAW PROVIDES THAT NO COPYRIGHT LIABILITY ATTACHES TO A PERSON WHO INNOCENTLY INFRINGES A COPYRIGHT IN RELIANCE ON AN AUTHORIZED COPY FROM WHICH THE COPYRIGHT NOTICE HAS BEEN OMITTED. BOTH BILLS MAKE USE OF THE COPYRIGHT NOTICE ENTIRELY VOLUNTARY, IN COMPLIANCE WITH BERNE'S PROSCRIPTION ON THE USE OF FORMALITIES AS A PRECONDITION TO THE EXISTENCE OF COPYRIGHT PROTECTION. THE ADMINISTRATION BILL ($5(K)) AND H.R. 1623($10 (ɛ) (3)) WOULD RETAIN THE INNOCENT INFRINGER DEFENSE ONLY FOR THOSE WORKS PUBLISHED PRIOR TO THE EFFECTIVE DATE OF THIS LEGISLATION. H.R. 1623 GOES FURTHER - IT PROVIDES ($10(A)) THAT THE INNOCENT INFRINGER DEFENSE SHALL NOT BE AVAILABLE TO MITIGATE ACTUAL OR STATUTORY DAMAGES IF A COPYRIGHT NOTICE DID APPEAR ON THE PUBLISHED COPY TO WHICH A DEFENDANT HAD ACCESS. 5 THE PURPOSE OF INTRODUCING THESE BILLS IS TO PRESENT DIFFERENT IDEAS TO THE JUDICIARY COMMITTEE SUBCOMMITTEE WHICH IS IN THE PROCESS OF CONSIDERING THIS ISSUE AT THIS TIME. WE ARE NOT WEDDED TO ANY PARTICULAR PROVISION CONTAINED IN THIS BILL. WHAT'S IMPORTANT IS THAT THE DIFFERENT IDEAS BE PLACED ON THE TABLE AND DISCUSSED AND MAYBE AT SOME POINT WE WILL COME UP WITH A CONSENSUS THAT WOULD ENABLE THE U.S. TO JOIN BERNE. I AM ALSO INSERTING FOR THE RECORD A SECTION-BY-SECTION ANALYSIS OF THE ADMINISTRATION'S BILL. BECAUSE OF THE IMPORTANCE OF BERNE ADHERENCE TO INTERNATIONAL INTELLECTUAL PROPERTY PROTECTION, THE ADMINISTRATION REQUESTS EARLY CONSIDERATION. THE OFFICE OF MANAGEMENT AND BUDGET HAS ADVISED THAT THERE IS NO OBJECTION TO ITS SUBMISSION AND THAT ENACTMENT WOULD BE IN ACCORD WITH THE PROGRAM OF THE PRESIDENT. SECTIONAL ANALYSIS This legislation amends title 17 of the United States Code to permit the United States to adhere to the Berne Convention for the Protection of Literary and Artistic Works. It makes only those changes in the copyright law that are necessary to bring U.S. law into compliance with the standards of the Berne Convention. Section 1 provides that this Act may be cited as the Berne Section 2(a)(1) unequivocally states that the Berne Convention is not a self-executing treaty under the laws and Constitution of the United States. Section 2(a)(2) underscores the fact that, therefore, the United States' obligations under the Berne Convention can be satisfied only by the provisions of domestic law. Section 2(a)(3) declares that title 17 does not confer copyright protection on any work that is in the public domain in the United States, thus, making it clear that neither adherence to the Berne Convention nor the changes to title 17 made by this Act will provide retroactive copyright protection in the United States. Further, section 2(d) (4) recognizes that title 17 does not provide an author with the right to be named as the work's author or to object to uses or changes to the work that would prejudice the author's reputation or honor. Section 2(b) states the intent of Congress. Section 2(b)(1) deals with the complex issues concerning Article 6(bis) of the Berne Convention, related to so-called "moral rights" of the author. Article 6(bis) of the Berne Convention provides that the |