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"(i) the rates in effect on the day before the effective date of this Act; and

"(ii) the rate contained in any license negotiated

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under the authorization of section 116(b) of this title.". SEC. 7. This Act and the amendments made by this Act

6 shall take effect on the same day the Berne Convention

7 enters into force with respect to the United States.

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SEC. 8. If any provision of this Act, or of title 17 of the

9 United States Code, as amended by this Act, is declared un10 constitutional, the remainder of this Act and of title 17, and 11 their application are not affected thereby.

HR 2962 IH

STATEMENT OF THE HONORABLE CARLOS J. MOORHEAD

ON INTRODUCTION OF THE ADMINISTRATION'S PROPOSAL ENTITLED THE "BERNE CONVENTION IMPLEMENTATION ACT OF 1987" JULY 15, 1987

TODAY WE ARE INTRODUCING AN ADMINISTRATION'S PROPOSAL ENTITLED THE "BERNE CONVENTION IMPLEMENTATION ACT OF 1987." AS THE TITLE IMPLIES, THE LEGISLATION WILL MAKE OUR COPYRIGHT LAW COMPATIBLE WITH THE STANDARDS OF THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS AS REVISED AT PARIS ON JULY 24, 1971. THERE HAVE BEEN OTHER PROPOSALS INTRODUCED ON THIS SUBJECT, IN PARTICULAR, H.R. 1623. THAT BILL IS SIMILAR IN CONCEPT AND WORDING TO THE ADMINISTRATION'S PROPOSAL EXCEPT FOR THREE AREAS OF DIFFERENCE:

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1. MORAL RIGHTS. H.R. 1623 SPECIFICALLY RECOGNIZES ($7) CERTAIN MORAL RIGHTS OF AN AUTHOR THE "RIGHT OF PATERNITY" AND THE "RIGHT OF INTEGRITY" AS INDEPENDENT OF THE ECONOMIC RIGHTS IN A COPYRIGHTED WORK. ANOTHER PROVISION (§9) PROVIDES THAT THE MORAL RIGHTS OF AN AUTHOR OR CREATOR ARE FREELY ALIENABLE SUBJECT TO WAIVER, AND THAT TRADITIONAL EDITING, ADAPTING AND ARRANGING PRACTICES OF PUBLISHERS, BROADCASTERS, MOTION PICTURE STUDIOS AND THE LIKE SHALL NOT INFRINGE AN AUTHOR'S MORAL RIGHTS.

THE ADMINISTRATION BILL PROCEEDS FROM THE ASSUMPTION THAT THE TOTALITY OF U.S. LAW, INCLUDING THE RIGHT TO PREPARE DERIVATIVE WORKS UNDER THE COPYRIGHT LAW, THE LANHAM ACT'S

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PROSCRIPTION OF FALSE DESIGNATION OF ORIGIN (§43(A)), AND
COMMON LAW RIGHTS OF CONTRACT AND TORT (ESPECIALLY DEFAMATION AND
INVASION OF PRIVACY), PROVIDE PROTECTION FOR THE RIGHTS OF
PATERNITY AND INTEGRITY SUFFICIENT TO COMPLY WITH THE BERNE
CONVENTION. THUS, THE ADMINISTRATION BILL DOES NOT INCLUDE A
PROVISION FOR THE PROTECTION OF MORAL RIGHTS UNDER THE COPYRIGHT
LAW. SPECIFICALLY, SECTION 2(A) (4) OF THE BILL STATES THAT THE
U.S. COPYRIGHT STATUTE DOES NOT PROVIDE AN AUTHOR WITH THE RIGHT
TO BE NAMED AS THE WORK'S AUTHOR, OR TO OBJECT TO USES OR CHANGES
TO THE WORK THAT WOULD PREJUDICE THE AUTHOR'S REPUTATION OR

HONOR.

2.

ARCHITECTURAL WORKS. THE TWO BILLS DIFFER SLIGHTLY IN

THE WAY THEY DEFINE "ARCHITECTURAL WORKS," IN THE SCOPE OF
PROTECTION OF SUCH WORKS, AND IN THE LIMITATIONS ON REMEDIES FOR

INFRINGEMENT. H.R. 1623 ($4) DEFINES ARCHITECTURAL WORKS AS
"BUILDINGS AND OTHER THREE-DIMENSIONAL STRUCTURES OF AN ORIGINAL
ARTISTIC CHARACTER, AND WORKS RELATIVE TO ARCHITECTURE, SUCH AS
BUILDING PLANS, BLUEPRINTS, DESIGNS AND MODELS" (EMPHASIS
ADDED). THE ADMINISTRATION BILL (54) DEFINES AN ARCHITECTURAL
WORK AS "A WORK SUCH AS A BUILDING OR OTHER THREE-DIMENSIONAL
STRUCTURE AND RELATED WORKS SUCH AS PLANS, BLUEPRINTS, SKETCHES,
DRAWINGS, DIAGRAMS AND MODELS RELATING TO SUCH BUILDING OR
STRUCTURE." THUS, H.R. 1623'S DEFINITION CONTAINS AN ARTISTIC
QUALITY CRITERION NOT PRESENT IN THE ADMINISTRATION BILL'S

DEFINITION.

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THE TWO BILLS ALSO DIFFER IN THEIR LISTING OF PROTECTED

WORKS RELATED TO THE ARCHITECTURAL WORK. THE ADMINISTRATION
BILL DEFINITION LISTS "SKETCHES," "DRAWINGS," AND "DIAGRAMS" AS
EXAMPLES OF PROTECTED WORKS RELATED TO THE PRIMARY ARCHITECTURAL
WORK H.R. 1623 INCLUDES "DESIGNS" AS AN EXAMPLE OF SUCH RELATED

WORKS.

AS TO THE SCOPE OF PROTECTION OF ARCHITECTURAL WORKS, H.R. 1623 IS MORE GENERAL THAN THE ADMINISTRATION BILL. H.R. 1623 PROVIDES ($9) THAT THE RIGHTS OF A COPYRIGHT OWNER IN AN ARCHITECTURAL WORK SHALL APPLY ONLY TO THE WORK'S ARTISTIC CHARACTER AND ARTISTIC DESIGN." THE ADMINISTRATION BILL ($4(c)) REFERS SPECIFICALLY TO RIGHTS ENUMERATED IN SECTION 106 OF THE COPYRIGHT LAW. IT PROVIDES THAT THE RIGHTS OF A COPYRIGHT HOLDER IN ARCHITECTURAL WORKS ARE "LIMITED TO THE RIGHTS SPECIFIED IN CLAUSES (1), (2), (3) AND (5) OF SECTION 106, (THE RIGHTS OF REPRODUCTION, PREPARATION OF DERIVATIVE WORKS, DISTRIBUTION, AND DISPLAY). BOTH BILLS PROVIDE THAT THE COPYRIGHT IN AN ARCHITECTURAL WORK IS NOT INFRINGED BY THE MAKING OF TWO-DIMENSIONAL REPRESENTATIONS THEREOF; IN H.R. 1623 THIS EXEMPTION IS AVAILABLE ONLY "WHEN THE WORK IS ERECTED IN A LOCATION ACCESSIBLE TO THE PUBLIC" (§9). .

THE BILLS ALSO DIFFER AS TO LIMITATIONS ON REMEDIES FOR INFRINGEMENT OF AN ARCHITECTURAL COPYRIGHT. BOTH PRECLUDE THE COPYRIGHT OWNER FROM OBTAINING AN INJUNCTION RESTRAINING CONSTRUCTION OF AN INFRINGING BUILDING "IF CONSTRUCTION HAS SUBSTANTIALLY BEGUN," AND FROM OBTAINING A COURT ORDER FOR SEIZURE OR

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DESTRUCTION OF THE BUILDING.

THE ADMINISTRATION BILL ($4(c))

WOULD ALSO PRECLUDE THE COPYRIGHT OWNER FROM OBTAINING A COURT

ORDER FOR IMPOUNDMENT OF THE INFRINGING BUILDING.

THE ADMINISTRATION BILL GIVES THE BUILDING OWNER MORE CONTROL OVER THE COPYRIGHTED BUILDING ONCE CONSTRUCTION IS COMPLETE ($4)c)). THE BUILDING OWNER IS AUTHORIZED TO MAKE NECESSARY, ALTERATIONS TO, RECONSTRUCT, OR EVEN TO DEMOLISH THE BUILDING WITHOUT THE AUTHOR'S CONSENT. IN H.R. 1623 ($9), THE

BUILDING OWNER IS AUTHORIZED ONLY TO MAKE MINOR ALTERATIONS IN ORDER TO ENHANCE THE UTILITY OF THE BUILDING.

3. INNOCENT INFRINGER DEFENSE. THE TWO BILLS DIFFER SLIGHTLY WITH REGARD TO THE INNOCENT INFRINGER DEFENSE. SECTION 405(B) OF THE CURRENT COPYRIGHT LAW PROVIDES THAT NO COPYRIGHT LIABILITY ATTACHES TO A PERSON WHO INNOCENTLY INFRINGES A COPYRIGHT IN RELIANCE ON AN AUTHORIZED COPY FROM WHICH THE COPYRIGHT NOTICE HAS BEEN OMITTED. BOTH BILLS MAKE USE OF THE COPYRIGHT NOTICE ENTIRELY VOLUNTARY, IN COMPLIANCE WITH BERNE'S PROSCRIPTION ON THE USE OF FORMALITIES AS A PRECONDITION TO THE EXISTENCE OF COPYRIGHT PROTECTION.

THE ADMINISTRATION BILL ($5(K)) AND H.R. 1623($10(E)(3)) WOULD RETAIN THE INNOCENT INFRINGER DEFENSE ONLY FOR THOSE WORKS PUBLISHED PRIOR TO THE EFFECTIVE DATE OF THIS LEGISLATION.

H.R.

1623 GOES FURTHER IT PROVIDES ($10(A)) THAT THE INNOCENT

INFRINGER DEFENSE SHALL NOT BE AVAILABLE TO MITIGATE ACTUAL OR STATUTORY DAMAGES IF A COPYRIGHT NOTICE DID APPEAR ON THE

PUBLISHED COPY TO WHICH A DEFENDANT HAD ACCESS.