THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 pays her for the An impoverished A writes a leftist play. B rights to exploit it (as under the 1976 Act). C, a wealthy philistine, pays handsomely for the right to claim authorship, receive critical adulation, and ride the talk-show circuit. A, who now has cancer and staggering medical bills, sells to D, a well meaning liberal, her integrity rights. Then E secretly raises money from [a prominent radical rightwing organization] in order to make D an offer he can't refuse. E enjoins any production that does not play the work as an anti-leftist satire. (His heirs will be able to do likewise to B's heirs.) B balks, so either B's economic rights are now worthless or he sells them to F, who is only to happy to oblige E. The critics subject C to ridicule. A, the gifted playwright, dies unknown (in these circumstances, probably just as well). This parade of horrors is obviously not what Berne envisions; moral rights are meant to attach inalienably to the author. Nor could this scenario come to pass under the 1976 Act, where there are no free-floating alienable moral rights in which anyone can purchase a property right. Exam # 41865 (emphasis in original). The task of drafting a moral rights provision that is both compatible with Berne and acceptable to domestic intersts is a daunting one, and I would like to suggest a different approach. The Ad Hoc Working Group presents a colorable (although in my view erroneous) claim that the United States is already in compliance with article 6bis of Berne. Provisions in our law for moral rights are simply less important to most Berne nations than the elimination of formalities. I suggest that it would be acceptable to all concerned to accede on the basis of the Ad Hoc Working Group's conclusions but to request at the same time that the Copyright Office undertake its own study of moral rights under U.S. law and report its recommendations to Congress within two years of our accession to Berne. The Copyright Office could THE UNIVERSITY OF MICHIGAN LAW SCHOOL HUTCHINS HALL ANN ARBOR, MICHIGAN 48109-1215 then perform such a study with the benefit of a closer relationship with W.I.P.O., and without the political pressures that inform the issue in the current legislative effort. Sincerely, Lea Ditmer Jessica D. Litman Associate Professor of Law National Music Publishers' Association • Inc. and The Harry Fox Agency, Inc. EDWARD P. MURPHY. President Chief Executive Officer February 8, 1988 The Honorable Robert W. Kastenmeier Dear Representative Kastenmeier: In light of the scheduled February 9, 1988 hearings on the Berne adherence bills currently pending in the House of Representatives, the purpose of this letter is to express the support of The National Music Publishers' Association (NMPA) for the position taken by the performing rights societies ASCAP, BMI, and SESAC that the needs of juke box operators can be adequately addressed while still allowing the United States to adhere to the Berne Copyright Convention. The numerous and overriding benefits to U.S. copyright owners which would arise through the United States' membership in the Berne Union have been documented extensively in the report of July 2, 1987, entitled "Why the United States Should Join the Berne Copyright Convention" (excerpts attached). This report was issued by The National Committee for the Berne Convention, a broad based coalition of groups in favor of Berne adherence of which NMPA is an active participant. It would be extremely unfortunate if these substantial benefits to the entire American copyright community were to be sacrificed out of an inability to dispel the unwarranted financial concerns of juke box operators, who comprise a small segment of the music industry. Both the Administration's Berne Adherence Bill (H.R. 2962) and your own (H.R. 1623) contain provisions for amendment of the current juke box compulsory license clause of the U.S. Copyright Act. These amendments fairly and equitably address the needs and concerns of juke box operators, while achieving compatibility with Berne Convention standards. The principles of domestic and international copyright law favor voluntary agreements; there is no basis for the belief that juke box operators would be disadvantaged by such negotiations with American performing rights societies. Rather, the CABLE ADDRESS HAFOX TELEX 237441 HAFOX UR • 205 EAST 42 STREET, NEW YORK, N.Y. 10017 (212) 370-5330 Representative Robert Kastenmeier February 8, 1988 juke box provisions set forth in the pending bills are designed to encourage juke box performances while ensuring adequate compensation to copyright owners for the use of their works. NMPA believes that since U.S. law currently meets Berne Convention moral rights standards, the law need not be amended in that regard. Thus, there are no further insurmountable impediments to joining Berne and allowing all American copyright owners and creators to reap the substantial benefits which adherence will bring. The National Committee for the Berne Convention notes the consensus which has emerged throughout the copyright community in support of U.S. Berne adherence, which we hope will aid in moving the bills forward. As previously expressed, NMPA stands ready to help in any way we can to ensure passage of this necessary and historic legislation. Sincerely, की Edward P. Murphy Mr. Irwin Karp, National Committee for Ms. Alice H. Prager, SESAC Ms. Frances Preston, BMI I am pleased to inform you of the recent decision by the Recording Industry Association of America (RIAA) to support United States adherence to the Berne Convention. The accompanying statement reflects a consensus among our member companies as to the specifics of adherence. Please include the RIAA statement in the Subcommittee's hearing record on Berne. 1020 Nineteenth Street, N.W., Suite 200 Washington, D.C. 20036 Telephone: 202/775-0101 |