Under this bill, a local television station serving New Jersey would have to try to locate the principal screenwriter of a film if the station decided to time compress the 4 o'clock movie to save a half minute to meet its schedule for the 5:30 evening news. How does the local television station figure out who was the principal screenwriter? Let's assume they are able to track down the principal screenwriter, and she is deceased, with 5 heirs. Under H.R. 3051 the local television station would have to contact all 5 heirs, determine their objections and include those objections before the broadcast. This could consume weeks or months and the running of the label could consume valuable air time.

If H.R. 3051 is enacted, the local television station also would have difficulty editing a movie to meet community viewing standards that exceeded FCC requirements if it is unable to locate the movie's principal screenwriter.

Failure to meet these requirements would subject the local television station to injunction, as well as actual or statutory damages of up to $100,000 per violation.

B. Legislation such as H.R. 3051 applied to other industries could wreak havoc on the production and dissemination of copyrighted works.

H.R. 3051 is a first step toward a moral rights regime which would stymie technological innovation, bring the distribution of copyrighted works to a standstill and strike a devastating blow to the predictability and certainty that is critical to the copyright

system. While characterized as mere "procedural requirements," the practical effect of these provisions is equivalent to a moral rights "consent" requirement. Enactment of this bill would set a terrible precedent with devastating implications for the U.S. copyright community.

In addition to films, books, magazines, newspapers, database publishing, software packaging and advertising are all collaborative efforts in which numerous individuals contribute to a creative work. If H.R. 3051 type requirements were applied to the broad range of these copyrighted industries, a breakdown in the publishing and distribution of copyrighted works would be likely to result. For example:

Would a daily newspaper be unable to submit its daily edition for edited electronic publication because it was unable to comply with labeling and notification of its 40 reporters?

Would a magazine miss its printing deadline because it had not been able to notify a free lance photographer that last year's picture needed to be cropped for this week's story?

Would the publisher of a textbook be unable to meet a deadline to update a textbook to reflect new developments in math, because it could not reach agreement with the principal editor on the content of the label?

Would an advertiser be unable to adopt an ad for next month's publication because of the burdensome requirements of notifying an array of

contributors to the ad including writers, graphic artists, creative directors, photographers and others?

III. H.R. 3051 inappropriately entangles the government in the private business dealings related to copyrighted works.

The legislation, with its burdensome labeling and notification requirements, runs counter to the long standing practice in the U.S. that business relations should be govered by the marketplace - a system under which the copyrighted works industries have thrived. Directors, screenwriters and cinematographers routinely negotiate contractual terms regarding the work to be performed, including compensation, residuals, etc. Changes made to a film post-production are best governed by these employment/contractual relationships, not by the federal government. While film owners' customarily control the method of distribution, advertising and changes made to the film, that control is purely a matter of contract negotiation between two very competent parties.

The changes made to a film post-release to adapt to different media or to meet audience demand are minimal in contrast to the liberties taken by many directors in turning novels into movies. For example, in the movie The Color Purple, director Steven Spielberg departed from the novel in a conscious attempt to reach a broader audience.

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The screenwriter for the movie version of the novel Patriot Games is adding jagged rocks to the Chesapeake Bay so that a boat can get smashed on them, much to the consternation of author Tom Clancy. Yet, directors and screenwriters take the position that they have the legal right to make these changes to enhance their art work and increase its dissemination.

In his 1988 testimony before the Senate Subcommittee on Patents, Copyrights and Trademarks, on the "Berne Convention", Steven Spielberg characterized authors' concerns with the film version of his book as appropriately handled by contract negotiations (Hearing of the Subcommittee on Patents, Copyrights and Trademarks. Committee on the Judiciary, United States Senate, on S. 1301 and S. 1971, "The Berne Convention," Senate Hearing 100-801, p. 503). So too are the concerns of the directors, screenwriters and cinematographers. This practice has worked for 75 years.

IV.

The Congress has refused to broadly incorporate moral rights into federal law.

The history of the congressional debate on the issue of moral rights has reflected congressional concern over interiering in the tnriving marketplace of copyrighted works.

In the 100th Congress, there were efforts to include specific moral rights provisions as part of legislation to implement the Berne Convention. The Congress explicitly declined to add these specific provisions taking the view that existing federal state and

common law are sufficient to satisfy U.S. obligations under Article 6 bis of the Berne Convention. (H. Rep. No. 100-609, 100th Congress 2nd session, 34,38 (1988)).

The National Film Preservation Act of 1988 required "labeling" of films entered on the national registry that had been materially altered. The definition excluded changes made in accordance with customary practices and standards "such as editing to remove obscene material for television broadcast." NFPA, section 11(5). The definition of material alteration was also clearly intended to exclude panning and scanning. See 134 Congressional Record S 12010 (daily edition September 8, 1988, statement of Senator DeConcini). Although far more limited in scope than H.R. 3051 and applicable only to a finite number of films (a total of 50 films were entered on the registry as of June 1991), administration of these labeling requirements by the Library of Congress proved to be very difficult. In June 12, 1991 testimony before this subcommittee on the reauthorization of the National Film Preservation Act, the Librarian of Congress, Dr. James Billington stated that "the Library should not be put in a position in the future to continue administering these or other labeling guidelines." Both House and Senate versions of the 1992 reauthorization of the "National Film Preservation Act" would eliminate the labeling

requirements.

The Visual Artists Rights Act of 1990 extended moral rights protection to visual artists' singular works of art. The legislative history of the Visual Artists Rights Act reflects Congressional recognition that the extension of moral rights to the "one of a kind"