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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 CONSENSUS THAT WOULD ENABLE THE U.S. TO JOIN 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.
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 mplex 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
author has a right to be named on the work as its author, and the right "to object to any distortion or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." While this right is not expressly provided in title 17 as stated in section 2(a)(4), existing State and Federal statutory laws as well as common law address the moral rights of authors. Section 2(b)(1) expresses the intent of Congress that the bundle of rights under existing laws meets the obligations under Article 6(bis). This approach recognizes that
must consider the totality of a country's laws in determining if Convention obligations are satisfied. This conclusion is shared by the Ad Hoc Working Group on U.S. Adherence to the Berne Convention.
Section 2(b)(2) is a further statement of Congressional intent that the changes in title 17 made by this Act and existing U.S. law are adequate to permit adherence to the Berne Convention. Section 2(b)(3) emphasizes that the Berne Convention is not selfexecuting, and consequently, it is the intent of Congress that it is not enforceable directly in an action before the courts.
Section 3 provides that u.s. accession to the Berne Convention shall become effective three months after the Director General of the World Intellectual Property Organization notifies nember countries of the deposit of the instrument of accession of the United States.
Section 4 amends chapter 1 of title 17, first by inserting new definitions in 17 USC (101. Section 4(a)(1) defines the term "architectural work" to bring the subject matter of u.s. law fully
into compliance with the subject matter of the Berne Convention as specified in Article 2. Section 4(a)(2) defines the Berne Convention as including its original text as well as subsequently amended texts. It further defines a Berne Convention work in terms of the various points of attachment for protection set out in Article 3 of the Berne Convention. Unpublished works are protected if one or more of the authors is a national of a nation adhering to the Berne Convention, and similarly published works are protected if on the date of first publication one or more of the authors is such a national. Works which are first published or simultaneously published in a nation that adheres to the Berne Convention are protected. Simultaneous publication means publication within 30 days of a work's first publication in its country of origin.
Audiovisual works are protected if the author resides or, in
Section 4(b) amends section 102(a) to include architectural works. The inclusion of architectural works follows the practice of many Berne member states to recognize explicitly those works of architecture protected by copyright.
Section 4(c) amends section 104 of title 17 by extending protection to Berne Convention works in addition to the other bases for eligibility under that section. It also adds a new subparagraph
6 to section 104 to state that no rights or interests in works protected under title 17 may be claimed on the basis of the Berne Convention and that rights in such works that derive from other State or Federal statutes or the common law are neither expanded nor reduced by u.s. adherence to the Berne Convention.
Section 4(d) completely revises the provisions of section 116, the so-called "jukebox" compulsory license, that experts generally agree is incompatible with the Berne Convention. The intent of this revision is to encourage the parties to negotiate a private licensing arrangement to permit the public per formance of protected music on coin-operated phonorecord players. It retains the possibility that, if these negotiations fail, the present compulsory licensing regime will be reinstituted.
The new section 116 provides an antitrust exemption for both copyright owners and jukebox operators to negotiate royalty payment terms and rates and how these royalties shall be distributed among copyright owners. Either party may designate common agents to negotiate, agree to, pay, or receive such payments.
It is further provided that the parties can refer the negotiations to binding arbitration in accordance with regulations to be developed by the Copyright Royalty Tribunal (CRT). Also, any such negotiated licenses are to be given effect in lieu of any CRT determination.
This new section also establishes a negotiation schedule, requiring that a date for the commencement of negotiations be scheduled not later than 60 days after the effective date of this