us easily to adhere to Berne without the need for any additional specific legislation.

Mr. BERMAN. Who is the copyright holder of a musical work?

Mr. AHROLD. The copyright holder would be both the author and the music publisher.

Mr. BERMAN. This would be the major reason, in other words, to the extent your music was altered or mutilated in some fashion that was not agreeable to your members, they would have the ability to bring an infringement action or to challenge that mutilation or alteration under existing law?

Mr. AHROLD. Correct. I would point out that Berne has been an issue in which we have communicated with our song-writers, composers and music publishers on a number of occasions. Frances Preston has written letters to them. Through our in-house house organ we have written articles about Berne and the implications. We have heard nothing from our authors that would suggest there is any dis-ease with the current situation.

Mr. BERMAN. Why do you care whether we say that Berne is not self-executing or we are silent on that subject? In your organizational interest, I can see why you care, but why do you care? Why is that an issue? You have testified that we should make it clear that Berne is not self-executing. I am wondering what the thinking is on that position.

Ms. MESSINGER. To be quite frank with you, Congressman, it is an issue that I personally have not spent a lot of time thinking about. So, I will very politely say that I will rest on our statement, and I will be pleased to amplify if you wish.

Mr. BERMAN. Even as we ask, I can see one reason, it makes it easier to pass.

Ms. MESSINGER. That is right.

Mr. AHROLD. I think you have put your finger on it.

Mr. KASTENMEIER. You may also be satisfied with the present U.S. law and the changes to be brought about by adherence to Berne.

In answer to the previous question, the administration was represented by the Secretary of Commerce, the late Malcolm Baldrige, at the same time the U.S. Trade Representative spoke in strong support of the bill proposed by Mr. Moorhead of California. Obviously, the inference is that they believe, therefore, that a satisfactory declaration of adherence is desirable.

The Register of Copyright, I think, does not speak for the Administration, but rather for, in this case, his own agency, his own independent judgment and their own institutional memory and position with respect to copyright, which may not necessarily be the same as the present Administration.

Mr. SLAUGHTER. No questions.

Mr. KASTENMEIER. The gentleman from Maryland, Mr. Cardin. Mr. CARDIN. Thank you, Mr. Chairman.

First I would like to express my appreciation to the panel. It seems like we have a great deal of agreement as it relates to Berne, and I like to see that kind of unanimity.

I would like to follow up on Congressman Berman's question on moral rights. If an entity wishes to take part of a recording and use it in a different context for whatever purpose, for perhaps fur

ther publication, who would that entity negotiate with in regards to who holds the copyright? Who would it be with?

MS. MESSINGER. If you are talking about using a piece of a recording, the record company, and the copyright owners of the music.

Mr. CARDIN. If I want to take part of a recording and use it for a different purpose, I would need to negotiate separately with the person who produced the record, the person who created-

Ms. MESSINGER. The record company and the copyright ownerusually the music publisher. That is my understanding. That is generally not my line of work, but that is my understanding.

Mr. CARDIN. There is no underlying agreement when a record is produced as to who negotiates on behalf of the future use of that record?

Mr. AHROLD. These things are contracts between the creators and copyright holders, in a whole range of instances, something you may regard as minor as an artist who has recorded a piece to be recorded and distributed on vinyl and must usually separately give permission in a revision of the contract or new contract for that to be released in compact disc. So there are a whole series of negotiations that will go on as the work is used in different frameworks. Mr. CARDIN. But if I understand your testimony, there has not been a problem in this industry on the negotiations on the further use of recorded music?

Mr. AHROLD. I have spent a number of years in the record side of the music business, and now some time in the performing rights side, and I haven't become aware of situations like that.

Mr. CARDIN. Our subcommittee has heard of problems in motion pictures and in other areas of art. You have not experienced similar problems within the recording industry for music?

MS. MESSINGER. I have not. As I say, my experience is in the licensing of the nondramatic right to perform and not in licensing the mechanical rights.

Mr. KASTENMEIER. The gentleman from California, Mr. Lungren. Mr. LUNGREN. No questions.

Mr. KASTENMEIER. Let me just ask the question to you with respect to compulsory licenses. If it were proposed we get rid of compulsory licenses to adhere to Berne, including the mechanical royalty given your industry, what would your position be? We should not get rid of the mechanical royalty, that is the compulsory license, as a basis of mechanical royalty?

Mr. AHROLD. Not speaking with my BMI hat on for the moment, trying to anticipate the situation, I think you find music publishers probably ill at ease with that situation.

Mr. KASTENMEIER. Are music publishers part of your organization?

Mr. AHROLD. Yes, but we are not in a mechanical rights area, we are simply in a performing rights area. We don't speak with them and talk with them frequently about mechanical rights.

Mr. KASTENMEIER. If there are no further questions, the committee is very grateful for the appearance of all three of you today. You have been very forthright, helpful, and as I say, agreeable on the proposition that confronts us, and you have given important testimony for us. We may end up with less questions about the

jukebox compulsory license and more about registration requirements in which you might have a say.

But, in any event, we are delighted for your coming today to represent your organizations. Thank you very much.

Now, our second and final panel this morning will focus on Berne and two other specific issues, formalities and architectural works. The first panelist is Mr. David Walch, Dean of Library Services, California Polytechnic State University, San Luis Obispo, California. Dean Walch, who will be presenting the views of the American Library Association, is a member of the Association's Copyright Committee. Dean Walch's testimony will focus primarily on the subject of formality.

Now the second panelist, on a somewhat different issue, is Mr. David E. Lawson, who will be testifying for the American Institute of Architects. The most complimentary thing I can say about Mr. Lawson is that he is from Madison, Wisconsin. He is an AIA Fellow, a fellow vice president of the Institute and Mr. Lawson's testimony will center on the issue of Berne and architectural works.

Dean Walch, you may proceed first, sir. We have your statement, which is a relatively short five-page statement. You may proceed as you wish, and, we will accept your statement for the record.

TESTIMONY OF DAVID B. WALCH, DEAN, LIBRARY SERVICES, CALIFORNIA POLYTECHNIC STATE UNIVERSITY, ON BEHALF OF THE AMERICAN LIBRARY ASSOCIATION; AND DAVID E. LAWSON, FAIA, FORMER VICE PRESIDENT, AMERICAN INSTITUTE OF ARCHITECTS

Mr. WALCH. Thank you, Mr. Chairman.

Good morning to you and members of the subcommittee. I would like to note that CalPoly belongs to the 19-campus California State University System that has a combined enrollment of more than 250,000 students.

And as you have already noted, I am representing the American Library Association, an organization of some 45,000 members whose membership consists not only of librarians, but also citizens who serve as library trustees, Friends of Libraries, and others dedicated to the improvement of library and information services for all people. I am a member of the Copyright Subcommittee of the ALA Legislation Committee.

The Association has had a long-time concern over the implementation of U.S. copyright law and was an active participant in deliberations which led up to the general revision of the law in 1976. Subsequently, various ALA members have been involved in meetings and discussions which resulted in publications and programs, including a televised copyright seminar by satellite, all designed to inform and educate our members on the implementation of the new copyright law in 1978.

It would be inappropriate to suggest to this subcommittee that the United States' adherence to the Berne Convention is a matter of grave concern to the majority of librarians. Many of them have been so intent this past decade on working toward an understanding and an accommodation of the Copyright Act of 1976 that due

and deserving consideration of the implications of the Berne Convention may not have been fully given. ALA believes that a fair balance has been achieved under the 1976 law. A great deal of time, effort, and energy were expended by librarians in order to become acquainted with it and adhere to its principles. Just as librarians and publishers have reached the comfort zone of that law, we now find it necessary to assess the implications of the United States' adherence to the Berne Convention.

ALA does not condone international piracy, and compliance, i.e., being in step with the regulations embraced by other countries, is to be encouraged. There are, however, questions that adherence to the Berne Convention precipitate. We have been asked today_to comment on our concern for formalities in the copyright law. For example:

Notice of Copyright. Section 401 of the 1976 Copyright Act (title 17 U.S. Code) requires a notice of copyright in published works as a condition of copyright protection and is incompatible with the Berne Convention Article 5(2), with respect to works of foreign origin. As it now stands, journal articles and other textual material photocopied in academic libraries normally include a notice of copyright. The inclusion of that copyright notice has a salutary effect in making faculty, students and other users sensitive to the fact that the material has, indeed, been copyrighted and should not be copied indiscriminately. Hence the non-inclusion of that notice as a mandatory requirement may precipitate some concern within our libraries.

However, with the implementation of the 1976 Copyright Act in 1978, all publications, except those in the public domain, are considered to be copyrighted. Therefore, librarians no longer find this notice essential in all cases to ascertain the copyright status of a work. The assumption is that most recent publications are copyrighted, and if a photocopy is made for a user, it should bear a warning of copyright.

Registration. Section 408 of the 1976 Copyright Act (title 17 U.S. Code) would be amended by Section 12 of H.R. 1623 in such a way as to make registration a procedural matter and no longer a substantive formality, and, therefore, compatible with the Berne Convention. Section 412 is already compatible with Berne since registration is not a requirement for all copyright protection, but merely an incentive for certain remedies for infringement. ALA does not have any position on this issue.

As far as deposit is concerned, Sections 407 and 408 of the 1976 Copyright Act (title 17 U.S. Code) are not addressed in either H.R. 1623 or H.R. 2962 and appear to be compatible with the Berne Convention. The Association does not have any position on these provisions, but they seem to be highly desirable for the continued collection development of the Library of Congress as well as for the protection of domestic authors. The registration and deposit of copyrighted works within the Library of Congress has enabled that library to provide a collection of materials that makes it a national library without equal. For libraries throughout the country, the vitality of that collection is of critical importance. Will the repeal of registration result in the absence of a consistent and complete record of materials being produced in this nation as well as an ab

sence of depository materials? Such a result could have profound inimical effects on other libraries who frequently look to the Library of Congress as a collector of these materials.

Another matter of concern is new technology. As previously noted, it is felt that a fair balance has been achieved as far as photocopying and the Copyright Act of 1976 is concerned. The newer technologies, however, such as video, computer software, digital audio tape, and the electronic transfer of information are matters that now require much attention of libraries. How does the Berne Convention address them? What result will adherence to the Berne Convention have on future and developing copyright issues, particularly those related to newer and developing technologies?

Some months ago, Donald Kennedy, President of Stanford University, issued the following statement concerning his school's policy on the copying of computer software:

There is widespread perception that unlawful copying of computer software is a common-place event in universities. Although I think this perception is unfair when applied to Stanford, I want nevertheless to make our policy clear: unlawful software copying is not permitted. We are all obliged to comply with valid laws and contractual obligations.

In this country, many libraries have found the guidelines, “Library and Classroom Use of Copyright Videotapes and Computer Software", published by the American Library Association in 1986 to be a valuable aid in determining the fair use of these types of materials and meet the spirit of President Kennedy's desire to "comply with valid laws". One must ask, however, will the Berne Convention have an impact on such guidelines or their interpretation? Will Berne be able to accommodate these technologies adequately?

The issues raised here are a sampling of those that deserve appropriate consideration as you ponder United States adherence to the Berne Convention. Certainly, the strides made toward equity this past decade are substantial, and we would hope that any new international agreements would strengthen and maintain that bal

ance.

Thank you, Mr. Chairman, for the opportunity to express the views of the American Library Association. I would be pleased to respond to any questions.

[The statement of David B. Walch follows:]

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