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"Final Report of the Ad Hoc Working Group on U.S. Adherence 10 COLUM.-VLA J.L. & ARTS 31 to the Berne Convention,"

(Summer 1986)

Chapter V

Mechanical License

A. Issue

Is the mechanical license in section 115 of the U.S. Copyright Act compatible with the Berne Convention?

B. Conclusion

We conclude that the mechanical license is compatible with the
Convention.

C. Relevant Provisions of the Berne Convention

Article 13(1) of the Berne Convention provides that:

Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorized by the latter, to authorize the sound recording of that musical work, together with such words, if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of these authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

D. Relevant Provisions of U.S. Law

The mechanical license in section 115 of the U.S. Copyright Act, one of four compulsory licenses in the current U.S. statute,' permits any person to make and distribute phonorecords of a nondramatic musical work (including any accompanying words) without the copyright owner's consent upon compliance with the terms and conditions specified under the law. The mechanical license is available only after the owner of copyright in the underlying musical work has first authorized the distribution of phonorecords embodying the work."

1. The other three compulsory licenses are considered elsewhere in this Report. See supra Chapter I. Compulsory Cable License: Chapter III, Jukebox Licenses; infra Chapter VIII, Public Broadcasting Licenses.

2. 17 U.S.C. § 115 (1982).

3. Id. § 115(a)(1).

31 (543)

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COLUMBIA-VLA Journal of Law & THE ARTS

[Vol. 10:513

The royalty rate under the mechanical license, initially prescribed by Congress, is subject to periodic adjustment by the Copyright Royalty Tribunal.'

E. Discussion

According to Claude Masouyé, Article 13(1) of the Berne Convention is expressly intended to allow "member countries to provide for compulsory licenses to record musical works." To satisfy the Convention requirements, any compulsory licensing system must include the following features: (1) the owner of copyright in the underlying musical work (including any accompanying words) must already have consented to an earlier recording of the work; (2) the compulsory license must have effect only in the country granting it; and (3) the copyright owner must obtain "equitable remuneration" fixed, in the absence of agreement, by "competent authority." This last requirement means that the country must lay down a "proper procedure" to determine a fair remuneration, e.g., "by fixing the level of compensation... or by setting up a tribunal to arbitrate the point between the parties.” In addition, the compulsory licensing scheme must not prejudice the moral rights afforded by Article 6bis of the Convention.10

There is uniform agreement that section 115 of the U.S. Copyright Act is compatible with these Convention requirements." Our mechanical license clearly satisfies the three main conditions for compulsory licensing set forth in Article 13(1), and it contains an explicit

4. See Id. § 804.

5.

World Intellectual Property Organization, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act 1971) 13.6 (1978) (hereinafter cited as WIPO Guide).

6. See WIPO Guide, supra note 5, at 1 13.8.

[blocks in formation]

10. See id. at 13.9: S. Stewart. International Copyright and Neighbouring Rights 115 (1983). The question of moral rights is considered in greater detail in Chapter 6 of this Report.

11. See U.S. Adherence to the Berne Convention: Hearings Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 47 (May 16, 1985) (statement of Donald C. Curran, Associate Librarian of Congress and Acting Register of Copyrights, Copyright Office); W. Wallace, The New U.S. Copyright Law and Compatibility with the Berne Convention 13 (1977): W. Wallace, United States Copyright Law and the Berne Convention 17(a) (1978).

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MECHANICAL License

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recognition of the more important moral rights." It is also worth noting that similar mechanical licenses exist in other countries-including the United Kingdom and West Germany-which were expressly cited at the 1967 Stockholm Conference of Berne members as a model for the present text of Article 13(1),13

12. Section 115(a)(2) provides that “[a] compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work..." 17 U.S.C. § 115(a)(2) (emphasis added). This provision appears to satisfy the moral right to object to distortion, mutilation, or modification of the underlying musical work. The other aspect of the moral right—the right of authorship is discussed in Chapter 6 of this Report.

13. See S. Bergstrom, Report on the Work of Main Committee 1 1 236 (1967) (the "Stockholm Report"); S. Stewart, supra note 10, at 115. The Stockholm text of Article 13(1) was confirmed at the 1971 Paris Conference, which established the most recent text of Art. 13(1). See WIPO Guide, supra note 5, at 1 13.6.

33

Lotus

February 10, 1988

United States House of Representatives
The Honorable Robert W. Kastenmeier
Committee on the Judiciary

Washington, D.C. 20515

Re: Berne Convention

Dear Representative Kastenmeier:

Lotus Development Corporation supports the adoption of the Berne Convention. We think that adherence to Berne would improve the protection of intellectual property across the world. Lotus has been on a world-wide campaign with other software companies to combat piracy of software products, and it would strengthen our campaign if the United States adhered to the Berne Convention. Moreover, American adherence would give the United States a voice and veto in an organization that will be dealing with important questions that affect the competitiveness of American industries which depend upon copyright protection.

Your consideration in this matter is greatly appreciated.

Very truly yours,

150 020988

Thomas M. Lenberg
Vice President and

General Counsel

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Lotus Development Corporation 55 Cambridge Parkway, Cambridge, Massachusetts 02142 617 577-8500

78-367 0 - 88 28

HBJ

HARCOURT BRACE JOVANOVICH, INC.

1666 CONNECTICUT AVENUE, N.W., WASHINGTON, D.C. 20009 TELEPHONE: 202-387-3900

MARSHA CAROW

VICE PRESIDENT

February 10, 1988

The Honorable

Robert W. Kastenmeier

U.S. House of Representatives

2328 Rayburn House Office Building Washington, D.C. 20515

Dear Representative Kastenmeier:

As one of this nation's and indeed the world's largest publishers, Harcourt Brace Jovanovich urges you to support legislation implementing U.S. adherence to the Berne Convention. We are joined in our support for Berne by a majority of the American publishing community.

We believe adherence to Berne is in the best interests of U.S. authors and publishers as it will obtain for us a high level of effective protection abroad, including copyright relations with 24 nations where we now have no protection. Joining Berne will also avert possible retaliation against U.S. works by Berne nations who resent our "free ride" on their Convention. U.S. publishers now obtain Berne protections through simultaneous publication, a costly, difficult, and uncertain procedure to which U.S. publishers and authors could easily be denied access at any time.

We believe that U.S. adherence to Berne is a crucial next step in the increasingly successful U.S. efforts to combat piracy of U.S. works throughout the world. We are greatly encouraged by recent improvements in copyright protection in several Pacific Rim nations, but are concerned that our progress and our credibility in the international arena will be seriously impeded by our failure to join the Berne Convention.

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