OPENING STATEMENT OF THE HONORABLE CARLOS J. MOORHEAD Thank you Mr. Chairman. As I mentioned at the outset of our first hearing the other day on the issue of artists rights, it was not very long ago that we were grappling with these same issues in the context of implementing legislation providing for U.S. adherence to the Berne Convention. While there are some who dispute the tact we took, I think we made the correct decision in the context of the Berne legislation, to leave this country's moral rights law unchanged and allow it to continue to evolve. During our hearings on the Berne legislation we quickly learned that the issue of moral rights is a very delicate and complicated subject. In recognition of this fact, I joined with you Mr. Chairman in sending letters to Ralph Oman, the Register of Copyrights and Don Quigg, the Commissioner of Patents and Trademarks, requesting that they study the relevant provisions of the Copyright Act and the Lanham Act as they relate to the practices of colorization, panning and scanning, and time compression. I am sure their respective studies will be very helpful to us as we explore these issues. The bill before us today, H.R. 2400 would establish moral rights for the principal director and principal screenwriter of a motion picture. In addressing legislation of this kind, it is my concern that we do not interfere too heavily in the marketplace, thereby creating uncertainty and perhaps spawning years of litigation. Having said that, Mr. Chairman, I look forward to the testimony of the witnesses and commend you for actively pursuing this important issue. Mr. KASTENMEIER. I thank my colleague. Our first witness today is the Register of Copyrights of the United States, Mr. Ralph Oman. Mr. Oman has testified many times before this committee and has always provided us with excellent advice and guidance, and I certainly look forward to his testimony today. And joining him is his colleague at the Copyright Office, Ms. Dorothy Schrader. Mr. Oman. TESTIMONY OF RALPH OMAN, REGISTER OF COPYRIGHTS, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL, COPYRIGHT OFFICE Mr. OMAN. Mr. Chairman, members of the subcommittee, thank you very much. It is always a pleasure to come and testify before your subcommittee. Several other people have worked on this issue in the Copyright Office, and I will consult with them if you have any written questions. I have submitted a written statement covering three subjects: first, a national droit de suite; second, enhanced moral rights for fine artists, both in H.R. 3221, introduced by Representative Markey; and, third, the Film Integrity Act of 1987, H.R. 2400, introduced by Representative Gephardt. Your subcommittee has already held hearings, as you mentioned, on H.R. 3221 on June 9, and I have submitted an extensive written statement, which discusses the Markey bill. I will not comment further on it. Of course, I will be pleased to respond to any questions on any of the points raised in the statement. Instead, I would like to focus on the many related issues raised by the buzzword of "colorization," whether or not to protect motion pictures from alterations which many see as mutilating and injurious to the integrity of the artists who make the films. Critics argue that these alterations-colorization, panning and scanning, dubbing in a foreign language, time compression-these diminish public awareness of the artistry of films. Your hearing couldn't be better timed. We need a strong, steady hand on the tiller. A few weeks ago we focused our attention on Representative Gephardt's bill. Formally and informally, a lot of other ideas started getting thrown into the pot: the moratorium on copyright registration for colorized film; a moratorium on copyright protection for such films; a court-stripping effort, to deny the courts jurisdiction to try infringement suits involving colorized film. A few months ago you asked the Copyright Office and the Patent and Trademark Office to look into the problem of material alterations of films, and to report to you early next year. Last week, Representative Mrazek escalated debate up a notch or two when he attached an amendment to the Interior appropriations bill that would create a new Government agency-a national film commission-to watchdog material alterations of films, an approach sharply different from Representative Gephardt's bill. I know you have all had many visits from many sincere people who worry about our cultural heritage. Some of those visitors have even drifted over to the Copyright Office. Some of them seem to misunderstand our decision on colorization, and I would like to explain that decision at some point down the road. We will be submitting our final regulation on that point in the near future. Up to now we have had to sort out a host of proposals of varying merit and practicability, all untested by careful impartial examination. So today, you will focus on the issues. You will start the search for a sensible approach to possible legislation, and you will begin assessing the equities, which are not exactly cut and dried. Our statement details the serious reservations we have about H.R. 2400. The bill poses problems of constitutional dimension, as you mentioned, concerning the "limited times" provision of Article I, section 8 of the Constitution, and the danger in resurrecting proprietary controls over works in the public domain. The bill imposes potential criminal liability for violation of the vague test of material alteration of a film. The bill never really sorts out the complex relationship of the artistic author's new rights with the economic rights enjoyed by authors under the Copyright Act of 1976. And last, the bill leaves unresolved a number of very practical uncertainties about how the new right would be exercised. I lay out these concerns in my written statement. What I would like to concentrate on today is the Mrazek amendment. Before getting into details I want to make the obvious point about process, one that you have already made, Mr. Chairman. Whatever title or characterization all the bills and ideas may have, they are all fundamentally about copyright or fundamentally affect the rights of authors and copyright owners, and it is this subcommittee that must subject them to careful scrutiny. No other forum has the accumulated experience in crafting balanced legislation. In copyright, you must reconcile art and industry within the framework of free market, free speech and the public interest, and the price you pay for hasty action is often high. Some of the ideas being considered need careful weighing against the letter of the First Amendment, so this subcommittee has a vital role to play. I think, too, it is worth recalling that this subcommittee and the Library of Congress, which includes the Copyright Office, have tried over the years to be sensitive to the needs of people who make films and the needs to preserve intact and unaltered our Nation's rich film heritage. And you, Mr. Chairman, and the Library have done so long before the Directors and Screenwriters Guilds started knocking on your door. Let me mention some examples. The 1976 Copyright Act preserves and strengthens the copyright registration and deposit systems that have built the extraordinary national film collection at the Library of Congress. For exactly the same reasons, you have maintained that system of registration and deposit in your Berne implementing legislation. And your subcommittee's report language in the 1976 revision bill about the applicability of fair use to the preservation of older motion pictures is of immense importance and relevance to the problem at hand. The importance of preserving our entire audiovisual heritage is also reflected in your 1976 decision to create in the Library of Congress the American Television and Radio Archives (ATRA). Finally, it is worth recalling that the Copyright Office in its Proposed Notice of Rulemaking respecting registration of colorized films thought it necessary and proper to require the deposit for our national archives of the underlying black and white film upon which the colorizers base their derivative claim to copyright. Having said all this, Mr. Chairman, I would like now to turn to the Mrazek amendment. First, moving away from a statutory moral right as proposed in the Gephardt version, the Mrazek amendment moves toward a form of labeling which tells the public that what they are seeing or what they are about to see is materially altered, and explains how it has been altered and then allows creative people involved with the making of the film to disassociate themselves from this altered version. This labeling approach is a much better starting point, at least at this time, than the completely new exclusive right that has been proposed. Of course, if you go for a labeling approach, a larger issue arises, and that is: Why not extend this requirement to all works, at least in relation to derivative works? Last week, in the House Appropriations Committee, there was a lot of talk about the potential alteration of an original movie like The Grapes of Wrath. But the movie, directed by John Ford, starring Henry Fonda, is not really the original work. John Steinbeck's novel is the original work. How did Steinbeck feel about the movie version of his book? And why not create a labeling system that allows him to object if he doesn't like the resulting movie created from the original novel? I do not take a position on this larger question, but I simply raise it. Second, an approach that applies a labeling requirement to all materially altered films would avoid one of the most troubling features of the Mrazek amendment, and that is, having the Government in the person of a national film commission decide which films deserve such benefits and which do not. Justice Holmes once remarked that judges should not be put in the position of having to be art critics, and a Law Review article once questioned whether or not the Register of Copyrights ought to be an art critic in connection with the registration of the works in the Copyright Office. I think the answer is a resounding "no" on both counts, and that goes for any other Government official, even those who are members of the Society of Film Critics. The Mrazek amendment compounds the problem of discriminating between films for purposes of labeling by authorizing the Commission to grant, in effect, a seal of cultural significance to particular films which can be used in commercial exploitation of the work. Virtually every major theatrical film might seek such approval, maybe even before theatrical release, arguing social, historical or aesthetic merit on one basis or another, because it might be a useful promotional device. That is not what this debate is all about. The Mrazek amendment also assumes that the directors and screenwriters are the only artists harmed by material alterations of films. True, material alterations affect the contribution of directors and screenwriters, but they very often have a profound impact on the work of cinematographers, editors, art directors, and even the performers, to name just a few. If a labeling requirement is to work as Representative Mrazek proposes, you have got to give serious consideration to expanding the right of objection to other creative interests. As to Mr. Mrazek's proposal for a national film commission, consistent with my objections to discriminating among films for purposes of commercial or promotional labeling, I don't see much of a role for such a commission. If you deal with the substance, form, and acceptable placement of a labeling requirement in a statute, you really don't need a Government agency to carry out any special functions in this regard. The money you save on the commission could be spent on film preservation at the Library of Congress. Still, in another context, there may be a role for a national film commission. A national focus on the importance of film preservation-and here I mean theatrical films, television, independent art films-can be of great use and the commission would help focus on it. Even there you should hear from others long involved in preserving the national film heritage, organizations like the American Film Institute, the Library of Congress, the National Archives, other museums and film archives, and the Academy of Motion Picture Arts and Sciences. These people are not here today. As I mentioned, the National Film Collection at the Library of Congress tries to collect and preserve archival quality prints or master negative materials of all theatrical films, and it is one of the easiest, least intrusive and most sensible ways to protect our film heritage. In this collection, the film archive and the public domain unite to serve the public interest and save the originals for new generations of admirers. So what should you do, Mr. Chairman? First, you should avoid hasty legislation. Mass colorization of the classic repertoire is not imminent, despite Mr. Turner's nose-tweaking about colorizing "Citizen Kane." Many other forms of material alteration have been with us for long time, and we can grit our teeth a bit longer over what television does to films. At your request we have launched a serious study, and the Patent and Trademark Office is looking specifically at the Lanham Act. As you know, Mr. Chairman, notice of our study was published in the Federal Register on May 25, and we will hold a public hearing on September 8. So we are moving along. For our part, I and my staff have been in contact with Congressman Mrazek, and I look forward to working with him to make sure our study considers his concerns and his perspectives. I urge all of those who have worked with and against him these past few weeks to help in the preparation of our study. Second, Mr. Chairman, I urge another round of hearings, maybe after you receive the Copyright Office and Patent and Trademark Office studies. At those hearings you could hear First Amendment specialists and other commercial actors in the film marketplace, particularly broadcasters, cablecasters and pay TV service providers. People naturally look to this subcommittee for leadership, and now is the time to put together a bill that builds on the Mrazek amendment. Third, I would not rule out the possibility that we may find an underlying common interest in this matter among the film produc |