May 29, 1987

A family day care center is not a huge business enterprise. A family day care center, by definition, is operated in an individual's home. It presents a child care option that many working parents prefer-day care for a small group of children who are closely su pervised in a home setting often in the same neighborhood where the parents live. Additionally, most States have regulations or licensing requirements that set limits on the number of children that may be served and ensure that the setting is safe, clean, and pleasant. Considering these circum stances. I do not feel that a definition of residence which excludes family day care centers is appropriate.

The bill I am introducing today would amend the Federal charters for Federal National Mortgage Associa tion and the Federal Home Loan Mort gage Corporation to permit mortgages for homes with family day care centers to be eligible for purchase by Fannie Mae Ginnie Mae, and Freddie Mee

Mr. President, the need for quality, affordable day care in our country is tremendous More than half of the women with children younger than 3 work and, the number is even higher. for women with preschool and school age children. And this is a growing trend In 1979, thang ware 1.2 million children under age, 4. with mothers in the labor force In 1986, there were 8.6 million. That number is expected to increase to 14.6/millions in 1996. The need for child care is particularly acute in Minnessta where the percent age of women working outside the home is the third highest in the country.

Lack of affordable child care can pose a significant barrier to low income families striving for self-suffi ciency, denying parents the opportuni ty to work, participate in employment programs or attend school. Child care can also affect the productivity of working parents. A study of 5,000 workers in the Midwest found that 58 percent of the women workers and 33 percent of the men with young chil dren felt their child care concerns af fected their time at work in unproductive ways

As policymakers at the national level, we have a role to play in encouraging the development and growth of affordable, quality child care options. The bill I am introducing will remove existing policy which penalizes family day care providers who wish to purchase or refinance their homes. There is no cost associated with this bill. I am pleased to note that this bill will be incorporated into the Economic Equity Act of 1987 and that Congresswoman MARY KAPTUR of Ohio will be introducing the bill in the House. I invite my colleagues to support his valuable initiative.

I ask unanimous consent that the text of the bill be printed in the RECORD.

There being no objection, the bill was ordered to be printed in the RECORD, as follows:

8. 1300

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled

MORTGAGES ON PROPERTIES INCLUDING DAY
CARE CENTIA,

SECTION 1. (a) Section 392(b) of the Federal National Mortgage Association Charter Act is amended by inserting before the period at the end of the last sentence of

paragraph (1) the following: ", and such term includes any loan that is secured by a single family residential property that is occupled as a single family residence in which community child care service is provided in compliance with all applicable State or local laws if the loan is otherwise eligible for pur

chase under this title”.

(b) Section 302(h) of the Federal Home Loan Mortgage Corporation Act is amended by adding at the end thereof the following "Such form also includes a loam or advanos of credit that is secured by a single family residential property that is occupied a single family residence in which community child care service is provided in compl loan or advance is otherwise eligible for with all applicable State or local chase under this title

By Mr. LEAHY'S 2. & 1301. A bill to: United States Code, to imple Berne Convention for the Pze of Literary.and Artistie Working t vised at Paris on July 24, 1973, and for other purposes; to the Com the Judiciary.

BERNE CONVE

on

Mr. LEARY. Mr. Presidents in the gloomy picture of American compets tion in world trade, there are a few bright spots. One of these is the trade in works of authorship protected by copyright. The world's appetite for American books, sound recordings, motion pictures computer software and other copyrighted works appears insatiable.

There are many reasons why the United States is the world's largest exporter of copyrighted works. Prime among them are the skill, inventiveness, and imaginativeness of American authors, musicians, software develop ers, and other creators. But like any other resource, American creativity will continue to flourish only in the proper environment. Our primacy in the trade in copyrighted works gives us a vital stake in strengthening the world system for the protection of copyright. Today I introduce legislation to advance that goal, by bringing U.S. copyright law into compliance with the standards of the International Convention for the Protection of Literary and Artistic Works, better known as the Berne Convention.

The Berne Convention is 101 years old. What began as a treaty among 10 European nations has grown to be the highest internationally recognized standard for the protection of works

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of authorship of all kinds. Seventyeight nations, including all our major trading partners, now measure their copyright laws against this yardstick. Over the past century, the Berne Convention has adapted well to dramatic changes in the technology of creating. distributing, and consuming the prod ucts of the human imagination.

World trade in copyrighted works faces even more sweeping challenges in the 21st century. In the years ahead, as in the past, the Berne Convention will provide the central forum in which the rights of creators and consumers can be properly addressed. Perhaps in the past it was enough for the United States to observe these developments from a distance, or to participate in them only through the medium of the Universal Copyright Convention, with its lower standards of copyright protection. But today. and ir future years, vital American interests can be fully represented in the international copyright system only if we get off the sidelines and onto the playing field by joining the Berne Conventionrust This legi

ment

ence to Berna

of consensus about the changes that would be needed in the US copyrighs law in order to meet Berne standards. Last October, Senator Mathias, the chairman of the Patents, Coyrights and Trademarks Subcommittee, introduced a Berne implementation bill, 8. 2904-99th Congress. More recently, on March 16 of this year, Representative ROBERT KASTEMETER, the Congress' foremost authority on copyright matters, introduced H.R. 1623, a somewhat different legislative approach to the same goal. The bill I introduce today, the Berne Convention Implementation Act of 1987, seeks to synthesize the best of these two proposals. Its goal is to bridge the relatively narrow gap that now prevents the United States from assuming its rightful place among the leaders of the world copyright community.

That gap used to be a wide one, and the contortions that would have been required to bridge it have doomed previous efforts to bring the United States into the Berne Convention. But most of those problems were resolved in 1976, when the US. Copyright Act was completely rewritten. Today, our copyright law requires only fire tuning in order to meet Berne's standards.

The bill I introduce today generally follows the minimalist approach of

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making only those changes to our law which are necessary in order to comply with Berne, without disrupting the smooth operation of the U.S. copy right system. Like the previous legisla tion on this subject, it proceeds on and makes explicit the well-founded as. sumption that the Berne Convention is not self-executing, and can only be implemented through legislation passed by both Houses of Congress and approved by the President.

Surely as Berne implementation leg islation proceeds through the legisla tive process, it will be refined and improved. Many of the required changes in domestic law are narrow and technical. For the moment, I will point out Just three areas in which the Berne Convention Implementation Act would change US copyright law in order to

meet Berne standards.

First, nations adhering to Berne are required to provide copyright proteetion for architectural works. There is no dispate that U.S. law currently falls short in this area. While the Mathias bill in the last Congress called for pretection of architectural works, the formulation in the Kastenmaler bill ap peare superior in t varen, and my bill adopts the provisions of HL.B. 1633 with only minor changua♬

the ting compulsory for the performanos of musical works on juke boxes, is clearly incompatible with Bee The Mathias bill simply eliminated the compulsas cense, but the Copyright Office has argued persuasively that such a dras tic step may not be required H.R. 1633 envisions the negotiation of voluntary license agreements between the pee forming right societies such as ASCAP and BMI, and juke box opera tora, in order to permit juke box per formances with adequate compense tion to composers. The existing com pulsory license mechanism, adminis tered by the Copyright Royalty Triba nal, is retained only as a back up. My bill generally adopts this approach as well, although it differs from HR 1623 in spelling out the applicable pro cedures if voluntary license agres ments are not reached, or if they lapse in the future.

Third, the question of copyright reg istration presents same thorny prob lems. Berne standards stress the elimi nation of formalities as preconditions to copyright protection. For this reason, for example, the requirement of copyright notice as a prerequisite for copyright protection is incompatible with Berne, and all the bills proposed on this subject would eliminate the notice requirement. Registration of a copyrighted work with the Copy right Office is not, technically speak. ing, a condition for the existence of copyright under current U.S. law. It is. however, a precondition for the exercise of any of the bundle of rights conferred by copyright. since, under sec. tion 411 of the Copyright Act, no court action for infringement of the copyright may be maintained until

registration has been accomplished. The metaphysical distinction between the existence of a right to prevent unauthorized use of a copyrighted work, and the exercise of that right, may be maintainable under other legal systems. But in our legal tradition, which disfavors the creation of rights with out remedies, it is more difficult to argue that a hurdle such as registra tion, which bars the courthouse door to any enforcement of an author's rights, is not a formality inconsistent with Berne standards. This observation is supported by the analysis made by an ad hoc committee of copyright experts at the suggestion of the State Department, which concluded that section 411 creates a prohibited for mality, at least as applied to works of foreign origin. Proceeding from this

analysis, the Mathias bill simply eliminated this requirement.

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However, in my view, some weight must be given to the arguments advanced by the Copyright Office in op position to the approach taken by 8. 2904 in the 99th Congress. The tive for registration under current law, amounting to a virtual require the auther wishes to pursue ers, may be a bothersom enforcement, but it alas ble functions, including a public record of eish the minimization of over copyrightability, the acquisition of copy by the Library of Con

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May 29, 1987

ages, which not only increases the incentive to register, but also takes into account inflation since these levels were originally established in 1976; and enhanced penalties for failure to deposit works with the Library of Congress, since this is an alternative, noncopyright means by which the completeness of the Library's collections may be assured.

As this proposal is reviewed in the legislative process, these incentives may need to be adjusted. We must scrutinize the evidence, as contrasted with the speculation, that simple elimination of the section 411 requirement will have a deleterious effect on the volume of registrations, and ensure that the force of new registra tion incentives is commensurate with the strength of the incentive that is being eliminated. The effect of any new incentives to register should be carefully examined, and different in

ty

ould be considered that

as the valuable fearation system. The 4 is simple to ad

O provide pro thors rights, sud authorship of one

the right to object to distor

the removal of one of the the section 411 requirement-misht de tion, mutilation, or modification of the crease the volume of registrations, and thereby in some degree frustrate the goals now served by registration. This supposition is debatable, and I am sure it will be vigorously debated as Berne implementing legislation is considered But if the Register's prediction is cor rect, the consequences would be unde sirable. It is certainly worth exploring ways to strengthen the incentives to register that will remain in our law even after eliminating the one incentive that is incompatible with the standards of the Berne Convention.

Accordingly, my bill takes up the Register's plea to fashion a new leg for the three-legged stool. It eliminates the requirements of existing section 411, but also proposes additional incentives for timely registration by all copyright claimants. These include: The imposition of a registration requirement for criminal enforcement of a copyright, the prospective limitation of statutory damages and attorney's fees as remedies for copyright infangement of a published work to instances in which the work is registered athin 5 years after publication, a douLing of the levels of statutory dam

work which would be prejudicial to the author's honor or reputation-the right of integrity, Many, although not all, Berne member States provide pro tection for these so-called moral rights within the context of copyright law. American copyright law currently does not explicitly provide for moral rights. But it does grant to authors the exclusive right to prepare derivative works, which protects authors against any unauthorised distortion, mutilation, or modification, regardless of its effect on the author's honor or reputation. Furthermore, other Federal and State statutes, and the common law of torts, including defamation, protect the interests implicated by moral rights.

The ad hoc committee on copyright experts convened by the State Department studied the moral rights issue in some detail. Its report states that:

There are substantial grounds for con cluding that the totality of US tax pro

vides protection for the rights of patern. t and integrity sufficient to cump; ath far ticiel 6bis (of the Berne Convent orl. applied by arious Berne countries

This conclusion is supported by record of the Senate hear.res