Amendment." Minneapolis Star & Tribune Co. v. Minnesota The reputational interest of the designated artistic authors does not meet the very difficult legal test for a compelling governmental interest. To be a compelling governmental interest, Similarly, their a justification must be of such society-wide importance that even the Constitution can be abridged to effectuate that need. Directors and screenwriters cannot be presumed to have greater and more national interests than other authors who are not accorded the rights given by this legislation. reputational interest cannot be presumed to be greater than that afforded to victims of libel who cannot seek a prior restraint, cannot be granted a statutory right of reply, and cannot have their interests in protecting their reputations survive them as this bill would do for artistic authors. The public's interest in not being "misled" about movies provides no compelling state interest either. Although the government may maintain certain consumer protection interests with respect to commercial products, the First Amendment stands as a bar against a similarly paternalistic attitude with respect to expressive materials. Even if truthful, government warning labels on books, newspapers, musical recordings, or motion pictures would violate the First Amendment. "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion." Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). Conclusion We suggest that if the committee is concerned about the artistic integrity of films as a result of material alterations, it should explore other methods for accomplishing that goal. We believe that if Congress wishes to expand the rights of artists in making films it cannot do so by placing substantial burdens upon free speech, as this legislation would do. The precedent that would be set by enactment of this legislation does not protect art but instead threatens all art with governmentally imposed labels. Mr. HUGHES. Mr. Jaffe, welcome. STATEMENT OF DANIEL L. JAFFE, EXECUTIVE VICE PRESIDENT, ASSOCIATION OF NATIONAL ADVERTISERS, INC., ON BEHALF OF THE ASSOCIATION OF NATIONAL ADVERTISERS AND THE COMMITTEE FOR AMERICA'S COPYRIGHT COMMUNITY Mr. JAFFE. Thank you, Mr. Chairman. Thank you, Congressman Coble. Mr. HUGHES. We appreciate your patience. Mr. JAFFE. I will try to summarize the statement that has been submitted and respond to a few of the points that were stated earlier. I am Daniel Jaffe, executive vice president of the Association of National Advertisers. I am here today representing the Committee America's Copyright Community. The committee represents 20 organizations comprising a wide range of copyright industry, including books, magazines, advertising, computer software and database, sound recordings, educational testing, broadcasting, cable, video and motion pictures. This wide range of industries strongly opposes H.R. 3051 and would also like to emphasize S. 2256, Senator Simpson's legislation. I would like to make five brief points and these points are relative to both bills. First the U.S. current copyright regime has been highly successful. The United States is a world leader across the range of copyright industries. These industries contribute a $13 billion annual surplus to the U.S. balance of trade. The presumption should be against changing this thriving system unless a compelling public need is demonstrated. Second, these are not just simple labeling bills. These bills are based on moral rights concepts which create a complicated labeling and notification mechanism which will impede the flow of films to the public. Technical adaptations covered under the bill, such as panning and scanning, adapt the philosophy to the screen and increase audience enjoyment. Consumer satisfaction with current industry practice is evident in the millions of Americans who view movies via television, radio and cable. This will cover virtually every movie shown on TV. If local television tried to shave 20 seconds from the 4 o'clock movie to fit it in before the 5:30 evening news, they could spend a considerable amount of time trying to locate the principal screenwriter and director and determine an acceptable label. It has been stated earlier that maybe the advertising provisions of the Mrazek bill would come out of the legislation, but then witnesses later were talking about the advertising of "Casablanca," and so I think they are closing the front door and coming back through the side window, and so I would like to emphasis that if the Mrazek bill or anything like it were to be imposed, it would turn this ad that was in Sunday's Parade magazine into something more like a telephone book. It lists 200 videocassettes. It is for a video library program that Columbia House Video Club is offerning. Third, these bills are a terrible precedent, which if implemented across the array of copyright industries, threatens the continued functioning of our marketplace of expression, in addition to films, books, magazines, newspapers, software packaging and advertising, which are all collaborative efforts in which numerous individuals contribute to a creative work. If H.R. 3051 or S. 2256-type requirements were applied to these copyright industries, a breakdown of the publishing and distribution of copyrighted works would become far more likely. It is for this reason that the broad range of industries represented by this coalition oppose both of these bills. Let us not underestimate the onerousness of the Simpson legislation. It has been mislabeled in our view today as a benign bill. If you will look on page 15 of the Simpson legislation, you will see that it takes up 19 lines stating all of the different kinds of warnings that would have to be put into the label, and as Senator Simpson himself stated, these warnings are to encompass the anguish, I am using his word, the anguish of the distortion in the marketplace. So he certainly does not see these as nonpejorative statements at all. Fourth, the issue of artists' rights regarding adaptations made to a film after a release is a matter of contract negotiation and not for the Federal Government. The producer has to raise $30 million on average to make a major film. He needs to adapt the film to video to recoup the cost. The directors, screenwriters and cinematographers are well represented at the bargaining table. Issues regarding these adaptations should be resold there. Fifth, it is very surprising, at least to us, that creative rights organizations would be asking the U.S. Congress to institute a label program as a solution to their problems. We can only ask what happened to the first amendment. Our copyright system is working. Proponents of the legislation have not demonstrated that these bills will serve the public interest, and we very strongly urge you to reject both of them. Thank you for giving us the opportunity to express our views on these important bills. Mr. HUGHES. Thank you, Mr. Jaffe. [The prepared statement of Mr. Jaffe follows:] PREPARED STATEMENT OF DANIEL L. JAFFE, EXECUTIVE VICE PRESIDENT, ASSOCIATION OF NATIONAL ADVERTISERS, INC., ON BEHALF OF THE COMMITTEE FOR AMERICA'S COPYRIGHT COMMUNITY Introduction Mr. Chairman, my name is Daniel L. Jaffe and I am Executive Vice President of the Association of National Advertisers, Inc. I am here today representing the Committee for America's Copyright Community (CACC). The Committee represents a wide range of copyright industries, including producers of books, magazines, newsletters, computer software and databases, sound recordings, educational testing, motion pictures, cable, broadcasting, video and advertising. Its purpose is to ensure the continued vitality of the American copyright system. This copyright system has made the U.S. a world leader in virtually all areas of creative works. We are strongly opposed to H.R. 3051 for the following reasons: Requirements such as those contained in H.R. 3051 threaten the vibrant marketplace of expression fostered by our current copyright system. By turning U.S. copyright law on its head, requirements such as those in H.R. 3051 will bring gridlock to our copyrighted works superhighway. |