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In 1987, the celebration begins to mark the 200th anni versary of the promulgation of the Constitution of the United States. No greater document was ever written than the U.S. Constitution, no greater example of the power of ideas can be found and no better time than the present for the US. to be asking itself the necessary ques tions about adherence to the Beme Convention. America prepares to celebrate authorship of the Constitution for it was authorship, the foxing of a set of ideas in a document, that gave birth to the greatest present example of democratic govemment.

SESAC is a unique organization from which a viewpoint can be formulated about copyright protection, in general, and the Berne Convention, in particular, as it relates to the present attacks on the scope of that protection. SESAC was founded in 1930 by Paul Heinecke, a then American citizen born in Halle, Germany, in 1885, just about the time the original draft of the Beme Convention was emerging.

Paul Heinecke was the 32nd member of the American Society of Composers, Authors and Publishers (ASCAP), a source of great pride to the then American manager of Breitkopf and Hartel, only one of a prestigious list of publishers for whom Heinecke performed invaluable services as a manager, musicologist and promoter of composers. It was his fascination with, and dedication to, the creative individ ual that led him to form the Society of European Stage Authors & Composers which is now only a simple corporate name SESAC to protect, in the US, the many works composed by Sibelius, Ponce and Provost, to name but a few. SESAC was the alternate force in American performing rights licensing in the 1930s.

With its roots in the great European tradition of the rec ognition of the rights of creators, SESAC has experienced tremendous growth and expansion in recent years in repre senting works of major American composers, authors and publishers covering every type of music performed in every medium in our contemporary society. SESAC has kept pace with the technological explosion of our times. It is moving into modem new headquarters in New York, has expanded its Nashville-based operations, relocating its of fices in California, streamlining its corporate structure and is continuing to achieve greater productivity and service for its affiliates through the most advanced computer systems.

SESAC is unique among all performing rights organizations throughout the world. It is privately owned, therefore, able to act on behalf of its writers, composers and publishers in ways which would otherwise be proscribed.

Today it represents approximately 800 publishers and more than 1,200 writers and composers. Its repertory is as diverse as the genius of creativity may allow. At first, it repre sented music which was predominately Furopean in origin. Later on it was noted primarily for its activity in the reli gious, country, polka and marching band fields. Beginning in 1973 and continuing to the present, it rapidly expanded its representation in the areas of pop, rock, rhythm and blucaju Leinöini cassiai music.

Most significantly, it is the one organization that promotes the performance activity of its writers, composers and publishers, charges no membership fee and has an incentive program for its affiliates. It provides its affiliates with a&r consultation, advice on copyrights and placement assistance with publishers and record labels.

All of this has been the natural result of SESAC's more than half-century adherence to the basic course first charted by its founder. Paul Heinecke. Under the leadership of his daughter. A.H. Prager, SESAC continues to pursue its ongi. nal objectives, giving full recognition to the need to adapt to changing conditions. As a result, SESAC has broadened its

Paul Heinecke, (1885-1972), founder of SESAC Inc., the US's second old est performing rights organization. He founded SESAC in 1930 because, "Music is the common denominator

a communications instrument in temational in scope that knows no language barrier. Man's creative melo dies provide the ideal setting for im proved international understanding."

horizons, entered into agreements with other performing rights organizations throughout the world, and been the leader in achieving universal recognition of the principle that music is both an international language and an instru ment of peace.

It is fitting, indeed, that SESAC should choose to comment on the Berne Convention. What better subject in remembrance of a man whose lifetime interest in music began as an apprentice learning book binding, printing and music publishing at the world-famous Handelshochschule in Ger many? SESAC is the continuation of a hands across-theseas outreach of that humble apprenticeship.

How does the US. join Berne? That basic question probably enjoys equal interest inside and outside America. The Berne Convention is, in the first instance, a treaty. The US. Constitution controls the procedures by which a treaty is joined, or ratified. The Executive Branch of our govern ment, which encompasses the State Department, examines a treaty and if it is determined to be in the interests of the US. to accede-join-to such a treaty, then, the Secretary of State recommends to the President that the advice and consent of the Senate of the US. be sought to gain acces sion to the treaty in question. Bere is a treaty which the State Department believes is not self-executing, that is to say, it requires statutory enactment.

Those very basic statements relative to the American pro cess for treaty accession demonstrate immediately that the President, a majority vote in the Senate favoring ratification and further positive statutes are necessary before an instru ment of accession can be sent to the World Intellectual Property Organization, the depository for such instruments in the case of the Berne Convention.

In order to secure such approval, there must be a considerable force applied to the natural inertia of the status quo. It is interesting to note here that, in 1935, the Senate actually approved US adherence to Beme, came to work the next moming and immediately rescinded its approval.

The popular media now identify the US. as foremost among nations in the development of a service oriented so ciety and economy. It must foliow, therefore, that the U.S. finds itself in the vanguard of information societies. If one pursues that thought backward through American history, eventually one rez hes the First Amendment to the Constitition, and then Article I, section VIII of the Constitution self, the section which, articulates the basis for American stat utory Copyright Law. The juxtaposition of the free prett theories of the First Amendment and the exclusive rights provisions of the copyright law is not unlike the debate that has characterized America's flirtations with the Beme Convention.

A noted before, the U.S. Senate voted accession to Beme once, in 1935. Accession we recommended on at least two other occasions, in 1921 by President Hoover, and gain in 1939 by President Roosevelt. Omnibus ..sion of e Copyright Law in 1976 in which SESAC was ctively engaged has certainly removed many of the impediments to Beme membership which were deeply embedded the 1909 statute in place during the last period of real momen !m for Beme membership during the 1930s.

Should the U.S. now do those acts necessary to be. ome a

BILLBOARD NOVEMBER 15, 1986

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Onboard Adversing Supplement

member of the Beme Convention? The answer is unequivo cally, YES!

Having put the question and stated the answer, it is ap propriate to make the argument. The US should accede to Bere because it is the right thing to do. The Beme Conven tion is THE International law of intellectual property.

It is not reasonable for the people who create an enor mous number of books, motion pictures, periodicals and musical works each year to be denied the advantages of membership in Beme in the intemational marketplace. American copyright history proves that every instance of expansion of the rights of authors produces a proliferation of expanded economic opportunities.

What of the problem of the moral rights of authors? Beme-in Article 6bis(1)-requires a minimum standard of moral nights protection among member states. It is argued in some quarters, that a collage of American laws, federal and state, provide the "equivalent" of moral rights protec tion. It should be stated here that, in the opinion of several commentaton, there are serious flaws in the theory regard ing federal issues of pre-emption.

Among those who still oppose American accession to Beme, there is another argument that copyright is solely a statutory creation of Congress, under powers granted it by the Constitution, and without such a statute there would be no protection of any nature for intellectual property.

Obviously, there is little room in that thesis for moral ights, by equivalency or in plain language form. We ques ion this argument.

Americans hold nothing more dearly than their guarantee of free speech embodied in the First Amendment to the American Constitution. It is reasonable to assert that the ulti nate expression of free speech is the unfettered internation d dissemination of information, for information is free peech.

The Universal Declaration of Human Rights, which the JS fully supports, provides in Article 27 that

(a) Everyone has the right freely to participate in the cul ural life of the community, to enjoy the arts and share in teh cientific advancements and its benefits; and

(b) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary. r artistic production of which he is the author

These principles are consistent restatements of the au hors of the American Constitution.

The founding fathers recognized not only the bass in nat rai law of the concept of moral rights of authors but e ressed their recognition in a quite predictable way. Only in ricle I, Section Vill did the framers grant an express right 4 property!

To promote the Progress of Science and useful Arts, by ecuring for limited ames to A: thors and Inventor th xclusive Right to their respective Writings and I sco

es

Those articles of the Beme Contion which ranging fo uthors the minimum standards of protection which are al orded to nationals of member countries set forth, without xception, the proviso:

Authors shall enjoy the exclusive right of... There already exists, under this analysis, a perfect symme y between the American Consétution and the Beme Con ention as instruments of declaration of a positive law made 1 recognition of the natural law of the moral right of auhonship.

It is, perhaps, idealistic to suggest that &e process of ac ession to Beme should begin with a statutory declaration f the moral right of authors even while giving due recogni on to the tradition of reasonable compromise so firmly wed in our legislative process. However, it is equally realis ic to suggest that the greatest long term benefit to American uthors is the ultimate result of this approach. An ever wid ning circle of economic benefits is the historic proof of the alue of expanded author's rights.

It is unnecessary to detail the relatively less important as ects uí American copyright law which will require some de Fee of amendatory language bore accession can be ac complished. If the primary principle of moral nights is given

T

SGAE: Moving Toward
A 21st Century

Authors' Association

Sociedad General De Autores De España

The second half of the 20th century has been witness
to the technological revolution. We believe that this
phenomenon is as important as the industrial revo
lution was in the 18th century.

The new technology truly involved social changes for
mankind in all felds, and anturally in the world of culture.
This is because its communication media have led to mil
lions of people enjoying the fruits of creation who, precisely
due to these technological miracles, can form a part of this
world of culture.

Authors' associations find themselves laced with a true challenge. Sources of authors' rights are multiplying all the time. It is no longer a question of individual small businessmen who once utilized intellectual property at their work, available to a limited public and serving only an urban pop ulation, with little opportunity or repercussions in the rural community.

On the one hand, radio, then television, and satellite transmissions, have placed cultural resources within the reach of the entire population. And on the other hand, there is the fact that all cultures have been brought closer togeth er, creating the opportunity to become aware of all events in the world simultaneously and at the very moment they oc

cur.

Proof of this situation can be witnessed in the meetings held in recent years by organizations charged with oversee ing intellectual property. The same controversial topics are repeated over and over cable television satellite television, etc. etc. They are difficult subjects to handle, because technological changes are so rapid that laws, no matter how ad vanced they may be, always lag behind.

Moreover, the new systems are by necessity in the hands of large groups, with the small entrepreneur having virtually disappeared. These large groups undeniable and unques tionably exercise economic and social pressures. Faced with these groups, it is necessary, indeed obligatory, for authors to join together and work out a common strategy so that they will not see their legitimate rights decimated or watered down

The challenge we have referred to as been, and remains. the most critical in 3pair W.thir. just a few years, we have come to be a plural-tic and autonomous systern, with signif icant advances ir. information pn cessing and technolgy, as will as huvin joed te European Econonic Com.urty

It there re ne essar; to her new of inselloc sal property. The ministry of culture has now completed a first draft,& preliminary project, which deals with the new types of rights, it is also necessary for our authors' association to undergo change in order to keep abreast of the times-and this we are in the process of doing

Incrersing strength is being given to international ties. Delegations are being established abroad: we must not for get that our culture has an extremely stongd direct influ

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Sociedad General De Autores De España, interior

Sociedad General De Autores De Esparia exterior

ence on the American continent. All administrative systems involving repertory, accounting and so on are being convert ed to data processing in order to reduce costs and stream line administrative procedures.

The Spanish society has initiated a policy of constant cul tural activity. With regard to both the general public and govemment authorities, we are attempting to deal with what we feel is of the greatest priority and importance, namely making society in general aware of the author The absence of social evaluation of creation is an eviount fact. It is neces sary for the audience, when it is watching or listening to a work from the heart, to realize the! behind is stands an au hor-not ome abstract being, but a livig person

This October, in Madrid, Spain, the 35th Cor-gress of Cl SAC, the international authors and compors' associations group, was staged I was attended by all associations worl vide, with represent thas of very element of culture tv eryone was in unanimous agreement as to the need to strengthen the relationship between all authors' organiza tions in order to meet the challenge of new technologies with real hopes of success. A strengthened relationship can also increase the activities intended to make public oficials and legislators, who cannot remain neutral, aware that the creator must be protected and that the creator is the one who has actually made all the technological advances.

international language, and a language of peace.

SESAC's commitment to the cause of creators and those who disseminate their works, the cause of copynght and the future growth o the international recognition of intellectual property rights is both idealistic and realistic We have been a leading participant in the US Congressional hearings in the past to prevent the dismantling of our copynght system The most constructive direction we can take to achieve our goals is to support adherence to the Beme Convention con sistent with proper recognition of the ages of all involved SESAC accepts a role of leadership in attaining that realty so that the United States of America can join in the true spirit of global interrelationship and cooperation in the in temational copynight community

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I am writing to encourage you to favor the revision
of Section 107 of the copyright law, to bring it into
line with the Berne Convention. It is my under-
standing that this revision of the copyright law
would clearly define reproduction of political
speeches, and governmental and legal proceedings as
"fair use" under the copyright act, allowing for
their dissemination. Professor L. Ray Patterson
will be appearing on June 17, before a subcommittee
of the House Judiciary Committee, and I believe you
will find him a persuasive witness for this point of
view.

Being in the information business, we, our employees, and our clients are interested in the freest public flow of information, particularly, concerning news programming and governmental affairs. The proposed revision to Section 107 will, as we understand it, simply bring our copyright law into line with accepted international practice and make clear the unfettered right to reproduce speeches, governmental proceedings, and public and legal proceedings.

Yours truly,

RCW/PP

Robert C. Waggoner
President

75 EAST NORTHFIELD ROAD LIVINGSTON NEW JERSEY 07039 (201) 992-6600 (212) 227-5570 (800) 631-1160 PRESS C.PRINGS TV & A TRANSCRIPT5 45

&N AS ANALYSIS NEVE

June 8, 1987

The Honorable Robert W. Kastenmeier
Chairman

Subcommittee on Courts, Civil Liberties

and Administration of Justice

Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Chairman:

We are writing to commend you on the approach you have taken in introducing legislation to implement the Berne Copyright Convention, which presents all issues associated with Berne for consideration and debate. Such an open, comprehensive approach to examining Berne will be helpful not only to those within the copyright community with particular points of view, but to the American public, which benefits handsomely from copyright. While we have profound concerns about Berne, we appreciate your providing the opportunity to discuss all aspects of it, including

our concerns.

To be more specific about these concerns, the advantages that some see to Berne in setting international norms of conduct on intellectual property generally and in the fight against international piracy specifically are of diminishing value, if they any longer exist at all. Much, if not more now, and certainly in the near future, can be accomplished through other approaches and institutions, including the General Agreement on Tariffs and Trade.

In exchange for what appear to be the increasingly illusory benefits of Berne, we face the possibility of disruption to the ways we have conducted our businesses through the importation of the doctrine of droit moral ("moral rights"). No one has a higher regard and appreciation for authors and other creative contributors to collective endeavors than do our organizations, whose businesses in books, magazines and video programming all depend and thrive upon those contributions. However, importation of a "moral rights" regime could revise the entire set of working relationships we have developed over time and jeopardize, to a very real extent, the stability and predictability of our business environment. When we ponder the litigiousness of Americans and the arts world is no exception -- and the "mega-verdict" mentality of the American tort law system, the scenario becomes very daunting. For us, the disappearing virtues

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The Honorable Robert W. Kastenmeier
June 8, 1987

page 2

of Berne simply do not outweigh the risks to our domestic businesses. We also feel that Berne is inimical to American principles of freedom of expression because it places additional obstacles in the path of the free flow of information and because it expressly upholds the right of censorship by national governments (Article 17).

Thank you and we look forward to discussing these and related matters with you as your Berne initiative unfolds.

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