Hughes, Hon. William J., a Representative in Congress from the State of New Jersey, and chairman, Subcommittee on Intellectual Property and Berman, Jason S., president, Recording Industry Association of America, Inc. Hadl, Robert D., vice president and general counsel, MCA Inc. Oman, Ralph, Register of Copyrights and Associate Librarian for Copyright Services, Library of Congress, accompanied by Dorothy Schrader, General Counsel, and Marybeth Peters, Policy Planning Adviser Roth, Jay D., counsel, Directors Guild of America, Screen Actors Guild, AFL- Shapiro, Ira, General Counsel, Office of the U.S. Trade Representative Smith, Eric H., executive director and general counsel, International Intellec- tual Property Alliance, accompanied by Jon Baumgarten, partner, Proskauer, Rose, Goetz & Mendelsohn, on behalf of the Association of American Publishers, and Robert Holleyman, president, Business Software LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Berman, Jason S., president, Recording Industry Association of America, Inc.: Ficsor, Mihály, director, Copyright Department, World Intellectual Property Organization (WIPO), Geneva, Switzerland: Prepared statement ... Roth, Jay D., counsel, Directors Guild of America, Screen Actors Guild, AFL- CIO, and Writers Guild of America, West, Burbank, CA: Prepared Shapiro, Ira, General Counsel, Office of the U.S. Trade Representative: 75 34 APPENDIXES Pa Appendix 1.-Questions concerning a possible protocol to the Berne Conven- Appendix 2.-Statement of Ralph Oman, Register of Copyrights and Associate Appendix 3.-Statement of Software Publishers Association on questions con- ........................ 119 127 143 1 A POSSIBLE PROTOCOL TO THE BERNE CONVENTION THURSDAY, APRIL 29, 1993 HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON INTELLECTUAL PROPERTY AND JUDICIAL ADMINISTRATION, The subcommittee met, pursuant to notice, at 10:04 a.m., in room 2237, Rayburn House Office Building, Hon. William J. Hughes (chairman of the subcommittee) presiding. Present: Representative William J. Hughes, Jack Reed, Carlos J. Moorhead, Howard Coble, Hamilton Fish, Jr., and F. James Sensenbrenner, Jr. Also present: Hayden W. Gregory, counsel; William F. Patry, assistant counsel; Veronica L. Eligan, secretary; and Thomas E. Mooney, minority counsel. OPENING STATEMENT OF CHAIRMAN HUGHES Mr. HUGHES. The Subcommittee on Intellectual Property and Judicial Administration will come to order. The Chair has received a request to cover this hearing in whole or in part by television broadcast, radio broadcast, and still photography or by other similar methods of coverage. In accordance with committee rule 5(a), permission will be granted unless there is objection. Is there objection? [No response.] Mr. HUGHES. Permission will be granted. Good morning and welcome to the subcommittee's oversight hearing on developments in international copyright law. On March 25, the subcommittee held a hearing on performers' rights and performance rights in sound recordings. Most of the testimony at that particular hearing concerned new digital methods of delivering music and sound recordings, principally by digital audio cable, but also in the future by digital overthe-air broadcasting. The Recording Industry Association of America made the argument that digital delivery should be viewed less as a performance in the traditional copyright sense and more like a distribution or reproduction. Also last month, the World Intellectual Property Organization, WIPO, hosted a 3-day symposium at Harvard University on the ways digital technology is likely to impact on copyright and neighboring rights regimes. Speakers from countries across the world representing the record, music, audiovisual, software, and book publishing industries noted that digital delivery services are capable of transmitting all of their works in a sequence of ones and ze roes. This sequence does not distinguish between the types of work being transmitted. In a reversal of a famous adage, "the medium is not the message." The great leveling effect of digital technology, reducing all works to ones and zeroes, may have important consequences for copyright laws that are based on traditional distribution mechanisms and traditional media, such as print-based books and vinyl records, just to name a couple. In June of this year the World Intellectual Property Organization will convene a third committee of experts meeting on a possible protocol to the Berne Convention in order to address these technological innovations and other very important issues. The distribution right is one of the topics to be covered at the June WIPO meeting. In order to stay ahead of the curve and to ensure that the subcommittee is in at the ground floor of any international developments that may require changes in U.S. law, the subcommittee will hear testimony today from witnesses on the WIPO distribution rights proposals. I urge the witnesses to go beyond the text of the WIPO document and address the larger technological and policy concerns raised by new methods of distribution. For example, should there be a new right of digital delivery instead of relying on the traditional compartmentalized rights of reproduction, distribution, and public performance? How do we address computer-generated multimedia works in a copyright act that is also based on compartmentalized classes of subject matter, such as literary works and audiovisual works? These and other questions are very important as we look to the U.S. position on these issues and the important conference that is being convened in June. I look forward to exploring these and other issues with today's witnesses and with the witnesses at our next hearing, to be held, as you may know, on May 27. The Chair recognizes the distinguished ranking Republican from California, Mr. Moorhead. Mr. MOORHEAD. Thank you, Mr. Chairman. I would like to commend you for scheduling these important hearings. The Berne Treaty is the instrument governing international copyright law. Implementing legislation that led to our joining the Berne Convention in 1988 was probably the most significant copyright legislation processed by this subcommittee this century. When we joined in 1988 there were 77 member countries. Today there are 95. The United States is the world's largest exporter of copyrighted work. America's creativity is the most sought after around the world. In 1990 we exported over $34 billion in foreign sales. Between 1970 and 1990 employment in copyright-based industries in the United States, such as those engaged in motion picture and television program protection, audio recording, publishing, and computer software development, created nearly 3 million jobs. These were new jobs in the United States, from a total of 3 million to a total of nearly 6 million U.S. jobs by 1990. 1 1 This is why the Berne Treaty and the ongoing Uruguay Round of trade negotiations under the GATT are so important to the U.S. economy and the maintenance of U.S. jobs and to assist our industry in maintaining their competitive edge as the world's leader in the exportation of copyrighted work. The reason we are here today is to become more familiar with the changes in the Berne Treaty that are being proposed and that will be put forward before WIPO in Geneva, Switzerland, in June of this year. It is very important that we know and understand these changes and what effect they will have on the U.S. industries and U.S. jobs. I am looking forward to the morning's testimony. Thank you, Mr. Chairman. Mr. HUGHES. I thank the gentleman. Before we begin, I would like to acknowledge the presence of a representative of the World Intellectual Property Organization, Richard Owens. Welcome. We are very, very pleased to have you with us today and look forward to a close association with WIPO as we debate the possible protocol, the new instrument, and a host of other issues, and of course we hope you will convey our very best wishes to Dr. Bosgch. Our first witness is Ralph Oman. Like so many hearings, our distinguished Register of Copyrights is our leadoff witness. The Copyright Office has prepared a very helpful statement setting out the history of the distribution rights in the United States and the history of the Berne Convention. I look forward to your testimony this morning, Ralph, and hope that you will lay the groundwork for the witnesses that will follow. If you would, introduce your colleagues with you at the witness table. STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS AND ASSOCIATE LIBRARIAN FOR COPYRIGHT SERVICES, LIBRARY OF CONGRESS, ACCOMPANIED BY DOROTHY SCHRADER, GENERAL COUNSEL, AND MARYBETH PETERS, POLICY PLANNING ADVISER Mr. OMAN. Thank you very much, Mr. Chairman and members of the subcommittee. We appreciate the opportunity to testify at this oversight hearing. My colleagues need no introduction, but for the record, let me introduce, on my right, Dorothy Schrader, the General Counsel of the Copyright Office, and on my left, Marybeth Peters, Policy Planning Adviser to the Register of Copyrights. Mr. HUGHES. Welcome. Mr. OMAN. My written statement contains a full discussion of the U.S. law on distribution rights, including the first sale doctrine and the right of importation. It also has a brief history of the Berne Convention and a summary of the basic principles of the 1971 text of the convention. Last, the statement discusses the distribution right proposals in the GATT TRIPS text and distribution and importation right proposals of the Berne Protocol. I will limit my oral statement to the Berne Protocol. Mr. HUGHES. Without objection, your entire statement will be made a part of the record. Mr. OMAN. Thank you, Mr. Chairman. |