Mr. COBLE. Thank you, Mr. Chairman.

Mr. Chairman, initially I would like to thank you and commend you for your leadership in compiling what I believe is a solid record of testimony on U.S. adherence to the Berne Convention. The issues suggested today and the summation scheduled for tomorrow will bring to a close eight days of testimony on this very important matter.

The ABA testified U.S. adherence to Berne is the most important issue facing the copyright community today and it may well be. But regardless of how important it is today, it is clear to me that it will be even more important in our future because when it comes to copyright on a broad spectrum our people-I hope I am correct in this Mr. Chairman-I am going to say our people are the most creative in the world. There may be others that will challenge that, but we are certainly as creative and, I hope, the most in that capacity.

We have to do everything we can, it seems to me, to secure for them the best protection available and that is what these hearings are all about. I am looking forward to this morning's testimony and a mark-up in the near future.

Mr. Chairman, I regret I was unable to accompany you and other Members of the Subcommittee to Geneva. I am told there were two very productive days of hearing on that trip. Again, I regret I was unable to be there with you.

Let me direct this to you, Ms. Messinger. The present U.S. law has a copyright liability exemption for fraternal and veterans organizations. Does this exceed the limitation imposed by Berne?

Ms. MESSINGER. I do not believe it does, Congressman, but I would like very much to have the benefit of counsel's wisdom on this and if I prove to be incorrect, I would like to submit a correcting statement.

Mr. COBLE. Has it been ASCAP's experience that some Berne Convention countries do have de facto compulsory licenses, and if so, how well has that worked?

Ms. MESSINGER. Well, I think there are compulsory licenses of varying sorts permitted under Berne. They have worked well or not, depending upon the particular industry and the individuals involved. I think compulsory licenses as such are not anathema to us. In ASCAP, we have for 40 years lived with a kind of compulsory license system. We have negotiated with any user who asked us. All they have to do is write asking for a license and they are licensed. If negotiations fail, the court will fix a reasonable fee.

Only a month ago, we had the first trial in court. We have done very well until now in reaching agreements with users. No one is ever deprived of the right to use music, and the creators and owners want their music performed. It is a system that works well. I think the suggestion of the bills the committee is considering is really a very good way of trying to deal with the problem. We support the idea of negotiations and, if they fail, a system for falling back on the Copyright Royalty Tribunal. There are a few nuances that should be worked out, but I think it is a fine suggestion.

Mr. COBLE. Mr. Bohrer, do you want to add to that?

Mr. BOHRER. No. The license is far from the perfect thing, but if we can fall back on that, we would like to have it.

Mr. AHROLD. The chairman brought it up a moment ago, but I think it bears repeating that in the music industry overseas, there are compulsory licenses of a number of different kinds. It doesn't seem to bother the European adherence to Berne. I don't think we should get hung up on some of those fine points ourselves.

Mr. COBLE. In the AMOA testimony on page two, they make a distinction between the works of foreign origin and the works of domestic origin for purposes of adherence to Berne regarding compulsory license. Mr. Bohrer? It is your statement.

Mr. BOHRER. We feel that with adherence to the Berne Convention, it has absolutely no effect on works of U.S. origin. Whatever the complexities are, that is the way it is, to adhere to the Berne Convention.

Ms. MESSINGER. Well, I think there are some possible fallout problems you may have. If the United States, for example, were not to adhere to Berne, you would have possible retaliation on other issues. When it comes to music, all music should be treated alike, that is my point of view. I think foreign authors should be given the same benefits in the United States as local authors. That is what we need abroad. There are distinctions that can be made, but I think the other way is correct.

Mr. COBLE. Mr. Ahrold?

Mr. AHROLD. I think you are inviting practical difficulties with any two-tier system that can be dreamed up. We don't need a twotier system that differentiates between American and foreign works in order for us to gain the benefits that Berne offers.

Mr. COBLE. Thank you for your attention. Mr. Chairman, I ask unanimous consent to include in the record a brief letter, dated January 25, 1988, from Peter Nolan of Walt Disney following up his testimony before this subcommittee September 16, 1987. Mr. KASTENMEIER. Without objection.

[The information follows:]

You may recall that on September 16 of last year I
testified on behalf of the Motion Picture Association
of America and The Walt Disney Company before the
"Copyright" Subcommittee which you chair, in support
of adherence by the United States to the Berne
Copyright Convention.

My testimony included a reference to a then pending
case in Thailand which exemplified the problem of
"proving up" backdoor protection for American motion
pictures under the Berne Copyright Convention.
At that time I stated a senior executive of a motion
picture company was required to make two trips to
Thailand to show the courts there that his company's
motion pictures were appropriately published in a
Berne country to secure protection for those U.S.
works under the Convention. I mentioned in my
testimony that, even with such expensive and time
consuming efforts, there was no certainty as to what
the courts in the various Berne countries might
insist on to prove the establishment of backdoor
protection under the Convention.

The court in Thailand has now rendered its decision
in that case which unfortunately held that the
American motion pictures involved ("The Sting" and
"Earthquake") were not "published" under the
pertinent definition of the Berne Copyright
Convention.

If the United States was a member of the Berne Copyright Convention, such proof would not have to be presented to the Thailand courts, nor would the issue of sufficiency of evidence arise. Further, there

Hon. Robert W. Kastenmeier
January 25, 1988

Page 2

would be no uncertainty as to whether a motion picture had been properly published under the Treaty. Finally, the American motion pictures would have been protected in Thailand, which is currently a haven for unscrupulous entities pirating American produced works. It is for reasons such as these that the Motion Picture Association of America and the Disney organization strongly support the adherence by the United States to the Berne Copyright Convention.

Peter F. Nolan

Vice President-Counsel

PEN: Ph

cc: Hon. Carlos Moorhead

bc: Kathy Zebrowski

Morton David Goldberg
Irwin Karp

Mr. KASTENMEIER. The chair will call on the gentleman from California, Mr. Berman.

Mr. BERMAN. Thank you, Mr. Chairman.

Initially I am just wondering if we are reading all this controversy over treaties and interpretation of treaties and the extent to which, in the case of the ABM Treaty or the INF Treaty, what the Administration says to the Senate, that is part of the record, and the Administration is bound by that. I wonder how that works in a situation like this. This is an alternative. We could be adhering to Berne through treaty negotiations engaged in by the Administration with ratification by the Senate. Instead we are having hearings on this.

I am wondering what effect Administration adherence to these treaties becomes part of the record, that at least in the case where the legislation might be ambiguous could constitute a legal portion. I don't know the answer, and I don't know who would have the answer. I don't know who the administration is in this. Could it be the Commissioner of Copyrights?

I wonder if one of you could refresh my memory about what article in Berne raises questions about the validity of our compulsory license law and argues for a change in that law.

Ms. MESSINGER. I believe it is Article 11.

Mr. BERMAN. Authors of dramatic, dramatico-musical works shall enjoy the exclusive rights of authorizing the public performance of their works, including any communication to the public of the performance of their works. The idea of a compulsory license is viewed as an abrogation of the right of the author, is that the logic?

Ms. MESSINGER. I believe it is. Then it goes on to other articles or different paragraphs where there were exceptions to the absolute right of broadcasting.

Mr. BERMAN. What does that logic mean for a blanket license? Ms. MESSINGER. To the extent you are talking about non-dramatic or the specific world where I live, when it comes to non-broadcast public performance

Mr. BERMAN. It is non-broadcast which speaks to the reason why it would not affect the blanket license for music on radio or television.

One of you at least mentioned that you don't see a moral rights problem with existing law in terms of adherence to Berne. I would like to follow through with that. We are told by some directors and screen writers that they view Article 6 of Berne as requiring some changes in U.S. law. I guess they view themselves as at least very largely the creators of motion picture films but not the copyright holders.

In terms of music or music recordings, how does your situation differ from them? When I say you, I mean song-writers and publishers. In what way are you not analogous to them? Do you feel current law protects you?

Mr. AHROLD. The NCBC looked into this, obviously one of the key areas in adhering to Berne. The investigation essentially said that current laws on the books in the United States are clearly sufficient to provide a level of coverage and moral rights that permits