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potentially copyrightable works was a policy decision Congress had not made and should review. The Copyright Office's issuance of certificates of registration for computer-colorized motion pictures and other audiovisual works, it is argued, would preempt Congress' opportunity to do so.

In the view of the Copyright Office, a moratorium is unnecessary and ill-advised. In the 1976 Copyright Act Congress deliberately created a flexible subject matter structure so that it would not have to micromanage each new technological advance. The central concept of originality was deliberately left undefined by Congress in the 1976 Act. Congress expressly stated in the legislative reports that it was satisfied with the interpretation of the concept given by the courts and wished to leave that task to the courts. The Copyright Office does not have its own definition of originality but rather applies the courts' interpretation of it in making registration decisions. Since some

computer-colorized motion

pictures meet the originality standard, the Copyright Office is required by section 410 of the Act to accept application for and issue certificates of registration for computer-colorized motion pictures and other audiovisual works as a class, while rejecting individual audiovisual works that fail to meet the originality standard (or otherwise fail to meet the legal requirements for registration). If the Office refused to accept claims to copyright that were sufficient under the Act, it would be acting contrary to its statutory mandate and would be subject to suit under the Administrative Procedure Act (and attorneys fees). Additionally, if a putative copyright owner of a colorized motion picture sought registration but was refused for any reason, he or she could still bring an infringement suit under section 411(a) of the Act.

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Therefore, a moratorium would be effective only through amendments to the Copyright Act itself, including provisions denying the courts jurisdiction to hear infringement suits over computer-colorized motion pictures.

The rationale for such a moratorium that Congress entertains doubts about the propriety of copyright for works created with the aid of computers would have widespread application in other fields, such as the information industry, where very valuable and expensive expert systems are being developed and marketed; the music industry, where computers have become an integral part of both pop and avant garde classical music; and, even the graphic arts.

Since copyright vests upon creation, any moratorium must face the issue of how to deal with motion pictures and other audiovisual works colorized before the moratorium could go into effect, as well as those that may be colorized after any moratorium were to go into effect. Additionally, a decision would have to be made whether copyright for colorized motion pictures created after a moratorium went into effect would be denied or merely delayed in enforceability until after Congress made a determination about the basic question of any copyright for such works.

At a minimum, Congress would have to amend sections 501-503 of the Copyright Act (which specify who may sue for infringement and prescribe certain remedies, e.g., injunctions), and 28 U.S.C. 1338 (which grants federal courts original jurisdiction over copyright cases) and possibly 28 U.S.C. 1331 (which grants federal courts original jurisdiction over all civil actions which arise "under the Constitution, laws, or treaties of the United States").

In conclusion, Mr. Chairman, you recently asked that the Copyright Office study colorization and other technologies used to alter and create audiovisual works and to report back to the Subcommittee its findings. Our investigative work on this study is already under way. As noted, on May 25, 1988, we published a notice inviting public testimony at a hearing on September 8, 1988. The issue has caught the public interest to an extent unequaled by any other recent copyright dilemma. Judging from information inquiries to the Copyright Office, every other law review article written this year will deal with In two opportunities for public comment on registration, it has been clear that the moral rights issue is the omnipresent and all-engaging one. It deserves a fair and thorough hearing.

colorization.

The Copyright Office stands ready to assist your Subcommittee, Mr. Chairman, in any further inquiries you may have. I will be pleased to answer any questions.

Mr. KASTENMEIER. You have summarized your views plus I think given some additional views on the Mrazek amendment.

I trust that the fact that that amendment is pending before the Rules Committee will not render irrelevant what we are undertaking today and what your office is undertaking. I suspect—I do not know but it would be my surmise that the amendment probably will not survive, at least in its present form, but I could be mistak

en.

Let me ask you just briefly, and I say very briefly-about the Visual Artists Rights Act, which is not really a question for the other witnesses before us today, but you have given testimony on that. There are two aspects, as you correctly point out, to that bill. One is a right granted to the original artist, encompassing the rights of paternity and integrity. The second is a royalty provision. You suggested, and indeed we contemplated, that they might be separated because either could survive separately. What is your judgment about the two separated parts? Which do you think-do you have greater trouble with the so-called moral right, the right to prevent the mutilation of a work? Or with the resale royalty provision?

Mr. OMAN. Well, we thought, in the Copyright Office, that the Berne implementing legislation addresses the issue of moral rights. The Berne bills conclude that in fact there is a level of moral rights already existing in this country that do protect the rights of fine artists.

The second half of the bill, the resale royalty or droit de suite aspect of it, raises some technical problems in our mind and raises questions that we felt hadn't been answered. So it is not one section of the bill that we favor and one we oppose. We have problems with both aspects of the bill. But we would encourage further study of both issues in the fullness of time.

Let me ask Ms. Schrader to make an additional comment on the Markey bill.

Ms. SCHRADER. I think we especially recommend additional study of the droit de suite or resale royalty proposal. This has been legislated in a relative handful of countries. Some countries have receded from such legislation, and in most countries where it exists there has been a lot of criticism of the system. It is not that there really is a consensus on this type of legislation.

In the United States, of course, we have a State-California— which has enacted a type of droit de suite provision, and one hears sometimes that as a result art sales have moved from California to other locations. So one of the major problems with the bill is whether it really achieves its objective of helping artists and rewarding them for their creativity or whether, in effect, people just go elsewhere to sell their artwork.

Mr. KASTENMEIER. You know, ironically, if you attended that particular hearing, even though the concept of a royalty is much simpler and indeed much less fundamental, it has lots of problems in it. The two panels, the pro and the con, were divided about the royalty. On the other hand, neither panel quarreled with the notion that an artist ought to have the right to prevent the mutilation of his or her work.

Both panels seemed to be more interested in that issue, even though it is probably much more far reaching ultimately, at least conceptually, than a 72 percent royalty which could be statutorily fixed and for which there is some State law or precedent. I merely make that observation. But it did occur to us that the two ideas were separable and one could be considered and not necessarily the other.

Let us turn to the issue before us, and that is whether or not there ought to be a statutory initiative that goes in the direction of recognizing the film director and film writer's original creative effort in a film which has been released, and which would prevent certain specified alterations. There are two specified alterations. One is colorization and the other is "an other" alteration of the film, which could include editing, time compression, scanning and panning, and all the other technical treatments of film that may be brand-new in terms of technology or may be as old as the cutting room floor as far as we know.

You are going to undertake a hearing in September. I quarrel not at all with that. I am glad you are. My concern is whether the matter is presented to the Congress with such urgency that we may need to respond to the initiatives that are taking place even before then or confess that we are unable to deal with the issue prior to adjournment of this Congress. That happens to be a practical question which I will not lay on you because you are doing and promise to do that which has been asked of you.

In connection with the proposals, what, if any, statutory or constitutional problems do you see? Are there any-do you see any First Amendment problems with these proposals, or do you see any inconsistencies with the copyright law which, of course, has limited terms and some of these may or may not have limited terms in their application?

Mr. OMAN. Let me focus, first of all, on Mr. Gephardt's bill. There are some large policy concerns. We fear that the bill at the same time is both overbroad and underbroad, if there is such a word. In many ways, it goes further than Article 6 bis of the Berne Convention in prohibiting any material alteration of a film without the consent of the artistic authors.

As you know, Mr. Chairman, under 6 bis of Berne the only material alterations that are prevented are those that adversely affect the integrity or the honor of the artist. This goes much further than that. The 6 bis standard as applied in European countries varies from very high standards to lesser standards.

On the other side, the Gephardt bill does less than what 6 bis might do by limiting artistic authors to only the screenwriter and the director. This is a severe limitation.

As you mentioned, Mr. Chairman

Mr. KASTENMEIER. On that point, one of the problems is how can you ever resolve that if you search for the artistic creator, other than as the proponents propose to resolve it by granting the right to the screen director and writer, conceding that many other artistic contributions go into a film? Indeed, the producer himself or herself may make a contribution to the film which is extremely important. How can it ever be resolved as to whose integrity is at stake? Who shall say that the film is in a sense "my" product in