Berne during the 99th Congress, in cluding advocates of domestic moral rights legislation. This record provides persuasive evidence that no changes in U.S. copyright law are needed in order to meet Berne's minimum standards with respect to moral rights. Any moral rights amendment to the Copyright Act would be highly controversial. The debate on any such proposal could be a contentious distraction from the effort to bring the United States into the Berne Convention. Whatever the merits of various proposals to strengthen protection for moral rights under the Copyright Act, none of them would advance the goal of Berne adherence, which is the only object of this legislation. Accordingly, like the Berne implementation legisla. tion previously introduced in the Senate, the Berne Convention Imple mentation Act of 1987 does not contain any provision on moral rights. Mr. President, as I have noted, the consensus in support of the principle of US adherence to the Berne Convention is today stronger than ever. Within the introduction of the Berne Convention Implementation Act of 1987, which parallels in many important respects the provisions of Repre sentative KASTER's bill on the subject, we take a giant step closer to a consensus on the legislative means of reaching this valuable goal. I look for ward to working with the chairman of the Subcommittee on Patenta, Copyrights and Trademarks, Senator DECONCINI, and with my other col leagues on that subcommittee, and with Representative KASTENMEER and his colleagues on the counterpart subcommittee on the other body, in order to resolve the few remaining differ ences between the bills. In this Congress, the long-delayed goal of bring ing the United States into the premier world copyright agreement is within our grasp. We should reach now to attain it, and thereby strengthen the system of international copyright protection under which American creativity has flourished, to the benefit and enjoyment of the entire world. By Mr. EXON: 6. 1302. A bill to authorise the Secry tary of Commerce to establish the Science and Technology Advisory Committee, to provide assistance in connection with long-term basic scientific research and student assistance in math, science, computer science, and engi neering, and for other purposes; to the Committee on Labor and Human Re sources. BASIC SCIENTIFIC RESEARCH AND STUDENT Mr. EXON. Mr. President, the Senate Budget Committee and the Senate Commerce Committee have had several recent hearings on the need to improve the Federal effort in science and technology. In this era of fiscal restraint and the continuing crisis created by the Federal budget deficit and the national debt; finding resources to support new initiatives in, tion, not currently eligible for existing science and technology are most diffi-/ grant programs; investigator Initiated cult. Today, I rise to introduce legislation to create a self-supporting technology trust fund to finance future long-term basic scientific research and student assistance in math, science, computer science and engineering. The trust fund would be financed by royalties from federally funded research and development and royalties resulting from technology transfers from the Federal Government to the private sector. The trust fund is also authorized to accept charitable contributions from the private sector. The trust fund is expected to collect or distribute large sums of money for a number of years. It is intended to be a forward looking proposal to provide future supplemental funds in an era of continuing budgetary restraint. Under this proposal, an independent entity would be established known as the science and technology advisory committee. The committee would be chaired by the Secretary of Commerce and would advise the National Science Foundation on the management of the science and technology trust fund. There shall be three primary sources of funds for the trust fund. Wherever possible, the Federal Government will secure from recipients of any Federal research and development funds a promise to grant to the science and technolgy trust fund a percentage of any profits or ownership of patents directly resulting from such federally funded research and development. The legislation does not set a specific minimum royalty. It will be the responsibility of each Federal depart ment to establish appropriate arrange ments. It is my suggestion that the royalty be in the 3-percent to 5-percent range. This level will not discour age research efforts, but could eventually provide a significant source of funds. The second source of funding is from existing technology transfer royalties. Under current law, Federal research facilities can transfer technolosy to the private sector under a royalty arrangement. Under the proposal those funds which simply go into the general fund will be earmarked for the technology trust fund. Finally, the trust fund would be authorized to solicit and accept charitable contributions. The science and technology trust fund will provide a source of funds for student assistance and student facilities. The trust fund will make grants or loans available for students for study in science, engineering, math and computer sciences; and grants to educational institutions for infrastructure development in science, engineer. ing, math and computer sciences. The trust fund will also fund basic scientific research and development. There shall be funds available for long-term basic research grants for projec's worthy of scientific investiga grants to provide funds to assist an in dividual scientist or institution in bringing a worthy concept to the stage of domestic manufacture; and supplemental technology development grants to rapidly develop products and processes from any domestic research project where development would result in domestic manufacture or use. technology trust grants would only be Under this program, science and available to U.S. citizens or institutions and development funds shall only be available where development results in domestic manufacture or use. Unlike any other competitiveness programs, the science and technology trust fund attempts to make a fair distribution of its resource among the States. In making grants, consideration will be given to geographic distribution. States which receive few grants from existing Federal research and development programs will receive special consideration in evaluating grant applications. In essence, there will be an affirmative action factor for States which do not receive many grants from existing science and technology programs. Over a period of several years, the legislation requires that there be a relatively equal balance of grants between student assistance and facilities; and scientific research. Mr. President, the United States faces tough new economic competi tors. The strength of our Nation and its economy has been our edge in science and technology. I regret to say that our competitors are closing on our lead. Now is the time to look into the future and establish the mechanisms which can keep the United States at the forefront of science and technolo MAY 6, 1988.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed Mr. KASTENMEIER, from the Committee on the Judiciary, REPORT [To accompany H.R. 4262] [Including cost estimate of the Congressional Budget Office] The Committee on the Judiciary, to whom was referred the bill (H.R. 4262) to amend title 17, United States Code, to implement the Berne Convention for the Protection of Literary and Artistic Works, as revised at Paris on July 24, 1971, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass. III. Background.... A. The Berne Convention in International Copyright.. 1. History of the Convention 2. Successive Revisions of the Berne Convention. 3. The Administration of the Convention...... 4. The Relationship between the Berne Convention and the Universal Copyright Convention 5. The Berne Convention and Developing Countries.. B. The Berne Convention and International Trade. C. Philosophy of the Legislation IV. Sectional Analysis. V. Impact on Existing Law. A. The Berne Convention is not Self-Executing in the United States.... 1. Provisions of the Berne Convention 2. The United States Constitution and Laws. 3. Conclusion. C. Formalities.. 1. Registration.. 2. Recordation of Documents 3. Mandatory Deposit 4. Notice of Copyright. 5. Renewal Registration D. Jukebox Compulsory License E. Architectural Works F. Retroactivity and the Public Domain G. Effective Date of the Act... VI. Oversight Findings..... VII. Statement of the Committee on Government Operations. IX. Inflationary Impact Statement.. X. Cost Estimate XI. Statement of Congressional Budget Office. XII. Committee Vote. ................................................. XIII. Changes in Existing Law Made by the Bill, as Reported The amendment is as follows: Strike out all after the enacting clause and insert in lieu thereof the following: SECTION 1. SHORT TITLE. This Act may be cited as the "Berne Convention Implementation Act of 1988". SEC. 2. REFERENCES TO TITLE 17, UNITED STATES CODE. Whenever in this Act an amendment or repeal is expressed in terms of an amendment to or repeal of 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. SEC. 3. DECLARATIONS. The Congress makes the following declarations: (1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971, (hereafter in this Act referred to as the "Berne Convention") are not self-executing under the Constitution and laws of the United States. (2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law. (3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention; no rights or interests in addition to those arising under such amendments or existing law shall be recognized or created for the purpose of satisfying such obligations. SEC. 4. CONSTRUCTION OF THE BERNE CONVENTION. (a) RELATIONSHIP WITH DOMESTIC LAW. (1) Subject to the provisions of subsection (b) of this section, section 104(c) of title 17, United States Code, as added by section 6(2) of this Act, and section 301(e) of title 17, United States Code, as added by section 7 of this Act, the provisions of the Berne Convention shall be given effect under title 17, United States Code, as amended by this Act, and any other relevant provision of Federal or State law, including the common law. (2) The provisions of the Berne Convention shall not be enforceable in any action brought pursuant to the provisions of the Berne Convention itself. (b) CERTAIN RIGHTS NOT AFFECTED.-The adherence of the United States to the Berne Convention, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work— (1) to claim authorship of the work; or 3 (2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author's honor or reputation: SEC. 5. DEFINITIONS. (a) PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.-Section 101 is amended in the definition of "Pictorial, graphic, and sculptural works" by striking out in the first sentence "technical drawings, diagrams, and models" and inserting in lieu thereof "diagrams, models, and technical drawings, including architectural plans". (b) BERNE CONVENTION AND BERNE CONVENTION WORK.-Section 101 is amended by inserting after the definition of "audiovisual works" the following: "The 'Berne Convention' is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971. "A work is a 'Berne Convention work' if— "(1) in the case of an unpublished work, one or more of the authors is a national of a state adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a state adhering to the Berne Convention on the date of first publication; "(2) the work was first published in a state adhering to the Berne Convention, or was simultaneously published in a state adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention; "(3) in the case of an audiovisual work "(A) if one or more of the authors is a legal entity, that author has its headquarters in a state adhering to the Berne Convention; or "(B) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a state adhering to the Berne Convention; or "(4) in the case of a pictorial, graphic, or sculptural work, such work is incorporated in a building or other structure located in a state adhering to the Berne Convention. For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in, a state adhering to the Berne Convention is considered to be a national of that state. For purposes of paragraph (2), a work is considered to have been simultaneously published in two or more nations if its dates of publication are within 30 days of one another.". SEC. 6. NATIONAL ORIGIN. Section 104 is amended (1) in subsection (b)— (A) by redesignating paragraph (4) as paragraph (5); and "(4) the work is a Berne Convention work; or"; and (2) by adding at the end the following: "(c) EFFECT OF BERNE CONVENTION.-No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto.". SEC. 7. PREEMPTION WITH RESPECT TO OTHER LAWS. Section 301 of title 17, United States Code, is amended by adding at the end thereof the following new subsection: "(e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of the obligations of the United States thereunder.". SEC. 8. SCOPE OF EXCLUSIVE RIGHTS IN NONDRAMATIC MUSICAL WORKS. (a) NEGOTIATED LICENSES.-Chapter 1 is amended by inserting after section 116 the following new section: "§ 116A. Negotiated licenses for public performances by means of coin-operated phonorecord players "(a) APPLICABILITY OF SECTION.-This section applies to any nondramatic musical work embodied in a phonorecord. 4 "(b) LIMITATION ON EXCLUSIVE Right IF LICENSES NOT NEGOTIATED.— "(1) APPLICABILITY.-In the case of a work to which this section applies, the exclusive right under clause 4 of section 106 to perform the work publicly by means of a coin-operated phonorecord player is limited by section 116 to the extent provided in this section. “(2) DETERMINATION BY COPYRIGHT ROYALTY TRIBUNAL.-The Copyright Royalty Tribunal, at the end of the 1-year period beginning on the effective date of the Berne Convention Implementation Act of 1988, and periodically thereafter to the extent necessary to carry out subsection (f), shall determine whether or not negotiated licenses authorized by subsection (c) are in effect so as to provide permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending on the effective date of that Act. If the Copyright Royalty Tribunal determines that such negotiated licenses are not so in effect, the Tribunal shall, upon making the determination, publish the determination in the Federal Register. Upon such publication, section 116 shall apply with respect to musical works that are not the subject of such negotiated li censes. "(c) NEGOTIATED LICENSES.— "(1) AUTHORITY FOR NEGOTIATIONS.-Any owners of copyright in works to which this section applies and any operators of coin-operated phonorecord players may negotiate and agree upon the terms and rates of royalty payments for performance of such works and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments. "(2) ARBITRATION.-Parties to such a negotiation, within such time as may be specified by the Copyright Royalty Tribunal by regulation, may determine the result of the negotiation by arbitration. Such arbitration shall be governed by the provisions of title 9, to the extent such title is not inconsistent with this section. The parties shall give notice to the Copyright Royalty Tribunal of any determination reached by arbitration and any such determination shall, as between the parties to the arbitration, be dispositive of the issues to which it relates. "(d) LICENSE AGREEMENTS SUPERIOR TO CRT DETERMINATIONS.-License agreements between one or more copyright owners and one or more operators of coinoperated phonorecord players, which are negotiated in accordance with subsection (c), shall be given effect in lieu of any otherwise applicable determination by the Copyright Royalty Tribunal. "(e) NEGOTIATION SCHEDULE.-Not later than 60 days after the effective date of the Berne Convention Implementation Act of 1988, if the Chairman of the Copyright Royalty Tribunal has not received notice, from copyright owners and operators of coin-operated phonorecord players referred to in subsection (c)(1), of the date and location of the first meeting between such copyright owners and such operators to commence negotiations authorized by subsection (c), the Chairman shall announce the date and location of such meeting. Such meeting may not be held more than 90 days after the effective date of that Act. "(f) COPYRIGHT ROYALTY TRIBUNAL TO SUSPEND VARIOUS ACTIVITIES.-The Copyright Royalty Tribunal shall not conduct any ratemaking activity with respect to coin-operated phonorecord players unless, at any time more than one year after the effective date of the Berne Convention Implementation Act of 1988, the negotiated licenses adopted by the parties under this section do not provide permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending on the effective date of that Act. "(g) TRANSITION PROVISIONS; RETENTION OF COPYRIGHT ROYALTY TRIBUNAL JURISDICTION.-Until such time as licensing provisions are determined by the parties under this section, the terms of the compulsory license under section 116, with respect to the public performance of nondramatic musical works by means of coin-operated phonorecord players, which is in effect on the day before the effective date of the Berne Convention Implementation Act of 1988, shall remain in force. If a negotiated license authorized by this section comes into force so as to supersede previous determinations of the Copyright Royalty Tribunal, as provided in subsection (d), but thereafter is terminated or expires and is not replaced by another licensing agreement, then section 116 shall be effective with respect to musical works that were the subject of the terminated or expired license.". (b) TECHNICAL AND CONFORMING AMENDMENTS. (1) Section 116 is amended |