works made for hire. The rights of "paternity" and "integrity." are previded, and are independent of the economic rights in the work. The right of paternity means that authors may claim authorship in their works, independently of any Moense or convey. ance of their copyrights; the right of integrity gives them power to object to any distortion, mutilation, or alteration of their works that would preju dice the author's honor or reputation. Again, such objections could be made by the author even where the author has parted with the copyright. Since the 1950's, when close examination of the moral rights question under United States law began, it has been argued that rights substantially equiv. alent to moral rights as they exist in States of the Berne Union are provid. ed for in a variety of laws considered together. The Lanhars Act, rules of unfair competition, certain of the economic rights under copyright and the common law of the 80 States. There is no doubt that the Berne Convention requires recognition of these rights. The question is whether such rights exist with the degree of national uniformity and predictability which should be provided in order fairly to comply with Berne requirements. 1 therefore propose a provision recogniz. ing moral rights. While statesmanship and the spirit of political compromise may, in the final reckoning, work a different solution to the moral rights question. I am reluctant to reject at the outset the necessity of recognition of moral rights which may be a great interest to authors and artists, if not to those who deal with their works. A second major change in current law occurs in the complete revision of section 116, dealing with the jukebox "compulsory license." Section 8 of the bill strikes subsections (a) through (e) of current law. A new section 116 makes the present jukebox compulso ry license system-that seems clearly incompatible with Berne-subordinate to negotiated licenses where such censes come into force. The new provi. slons would authorize where such u. censes as they come into force and would formalize a negotiating process that could totally supplant the com. pulsory license. If, after a year, negotiations fail to provide consensual censes for virtually all music, or if ne gotiations are terminated at some future date. then a compulsory license substantially the same as that in the present section 116 is "standing by" to ensure that jukebox music will always be available to the public. The Copy. right Royalty Tribunal would retain Jurisdiction over ratemaking and distribution functions only to the extent that negotiations fail or consens al B. censes expire or are terminated. I am aware that the provisions of the Berne Convention do not allow expressly for compulsory licensing of nonbroadcast public performances of music as is done presently in the jukebox busi ness. The outright elimination of the compulsory Hornse would, of course, Section creates a new section 110 tions are minor, er hance the utility of the building. Section 10 of the bill amends chapter 4 of title 17 in several areas. The intent of all these changes is to make the law with respect to the use of the copyright notice, the registration system, and the system for building the collections of the Library of Congress compatible with Berne while simultaneously doing no more to the present law than is absolutely neossmary. The amendments to sections 401 and 403 make use of the copyright notice voluntary-a work will ne longer be injected into the publis domain at any time because it is first published without notice. At the same time, if a copyright owner elects to use a notion, its form is specified in the law. A requirement of notics of copyright copies of published works has been a feature of United States copyright law, in one form or another, for almost 200 years. Many user groups, particuJarty noncommercial, have COME rely upon the information it provid Certain commercial users have ported the copyright notice as a of injecting works into the domain. There is apparently un ty as to the necessity of elim the copyright notice in ord comply with Berne. My bill, be assumes that at least on a transit basis, the informational utility notice as a means of conveniently tinguishing the protected from the protected is sufficiently great so as to warrant encouraging its use. It is entirely possible that elimination of the notice formality may not in the end curtail its use. Old habits die hard: it remains useful under the Universal Copyright Convention; and, it is, in all probability, the cheapest deterrent to infringement which a copyright holder may take. The propriety and efficacy of these incentives can be considered in the course of hearings on the bill. In new section 403. the Copyright Office is given the authority to promulgate regulations concerning how publishers of works consisting in whole or in part of uncopyrightable works of the U.S. Government shall apprise the public of those portions of the work that are in the public domain and therefore freely copiable. The bill repeals section 404, since no notice whatsoever need appear on a collective work, or on contributions thereto. Sections 405 and 406. which deal with omissions of and errors in the copyright notice, are amended so as to apply only to works published in the United States-with or without a copy. right notice-subject to mandatory deposit in the Library of Congress. This should have little functional effect. since virtually all publications in which the Library is interested now bear a copyright notice, and it seems likely that the Library's compliance activities will remain largely unchanged. Section 11 of the bill contains a 601(a) is amended to reflect the that violations of the moral rights vided in new section 1006 are not eng right infringements. New section 811 addremes infringements of moral rights and provides that potential rem edies include injunctions, actual and statutory damages, and costs and attermey's fees. Section 14 of the bill amends chapbor & of title 17, by providing that if the Copyright Royalty Tribunal ever has to adjust jukebox compulsory empe fees, it shall give great weight both to its "final" rates prior to imple mentation of new section 116 and to the rates contained in any new consen sual licenses that are negotiated. Section 16 clarifies that title 17, United States Code, as amended by this act, does not provide copyright protection for any work that is in the public domain in the United States. Section 16 provides that this act, and any amendments made thereby, shall take effect on the day after the date on which the Berne Convention enters into force with respect to the United States. Section 16 also specifies that any cause of action arising under title 17. United States Code, before the effective date of the act shall be governed by the provisions of such title as in effect when: the cause of action arose. In other words, the act is not retroactive. It may be useful to explain why certain provisions which might have been included in the bill were not. To reiterate, the approach of the legislation la to include, rather than exclude, proposals where the plain meaning of the convention and the practices of Berne Union states-particularly those sharing our legal tradition-appear to require changes in current copyright law. Nonetheless, the elimination or modification of the provisions of the 1976 Copyright Act which govern the renewal of copyrights which were in their first term of protection when the new law came into effect is not proposed. The renewal provisions of the 1976 Copyright Act are essentially transitional in nature: they do not apply to works which acquired copy. right protection under Federal law after the effective date of the 1976 act. The renewal system is replaced by the wholly new approach of the 1976 act: A unitary term of protection; and, pro visions for the termination of transfers by authors or certain of their sucCamors, after the lapse of a number of years from the date of original assign Consideration was given to ng the renewal provisions pect to works then ent copyright protecti ast of tracts stace gress alon for espa to retain the present at least has a backgroun Additionally, the bill does not pose the retroactive protection works which may have fallen into the 0.8. public domain due to reass other than the expiration of their terms of copyright. There seems to be general agreement among those who have examined the question that arti cle 18 of the Berne Convention leaves considerable scope to national diacretion in dealing with the retroactive protection of the convention. Because the public domain is precisely what it says it is the common property of the people to use as they see fit, in or out of commerce-I am strongly disinclined to restore controls over this heritage to proprietary interests. This brief summary, Mr. Speaker. suggests that even under the best of circumstances, Berne adherence faces an uphill climb. I have highlighted some of the dangers off the beaten track, and I urge all of my colleagues to study the bill closely. It could be one of the most historic efforts we undertake in the 100th Congress, or it could be a difficult endeavor to start. Let us commence. To amend title 17 of the United States Code to implement the Berne Convention for the Protection of Literary and Artistic Works, as revised at Paris on July 24, 1971, and for other purposes. A BILL To amend title 17 of the United States Code to implement the Berne Convention for the Protection of Literary and Artistic Works, as revised at Paris on July 24, 1971, and for other purposes. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Berne Convention Imple 4 mentation Act of 1987". 5 6 7 SEC. 2. (a) The Congress finds and declares that (1) the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) is 2 1 not self-executing under the Constitution and laws of (2) the obligations of the United States under the Berne Convention may be satisfied only by appropriate domestic law; (3) title 17 of the United States Code does not provide copyright protection for any work that is in the public domain in the United States; and 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (4) title 17 of the United States Code does not provide an author with the right to be named as a work's author or to object to uses or changes to the work that would prejudice the author's reputation or honor. (b) It is the intent of the Congress that (1) any obligation of the United States to provide the author with the right to be named as a work's author or to object to uses or changes to the work as a consequence of adherence to the Berne Convention be satisfied by United States law as it exists on the effective date of this Act whether such rights are recog nized under any relevant provision of Federal or State statutes or the common law and such rights shall neither be enlarged nor diminished by this Act; (2) the United States, by the amendments made by this Act together with existing law, meets its obli HR 2962 IH 3 1 2 3 4 5 6 gations as a nation adhering to the Berne Convention and that no further legislation is necessary for that purpose; and (3) the provisions of the Berne Convention shall be given effect solely under title 17 of the United States Code, as amended by this Act, and any other 7 relevant provision of Federal or State law, including 8 9 10 11 common law, and shall not be directly enforceable in any action brought on the provisions of the Berne Convention itself. SEC. 3. The instrument of accession by the United 12 States to the Berne Convention shall specify that the Con13 vention will enter into force for the United States three 14 months after the Director General of the World Intellectual 15 Property Organization has notified other member countries of 16 the deposit of the instrument of accession. 17 SEC. 4. Chapter 1 of title 17 of the United States Code 18 is amended— (a) in section 101, by (1) inserting between the definition of "anonymous work" and "audio visual works" the following: "An 'architectural work' is a work such as a building or other three-dimensional structure and relat ed works such as plans, blueprints, sketches, drawings, HR 2962 IH |