Mr. DEUTSCH. Senator, I am not going to extend this hearing, other than to say we have covered this fully in our presentation to the committee. It is not the congressional intent, but facts of the music publishing industry, which the Supreme Court raised on its own, never covered in our briefs, but that is more fully covered in our submission to the committee.

Thank you.

Mr. WEISS. Finally, I would like to say that if we are talking about Judge Weinfeld, we must also recognize that 7 out of the 13 honorable judges were on our side.

Senator SPECTER. Thank you all very much.

[Whereupon, at 11:02 a.m., the subcommittee was adjourned.]

I am honored to accept your invitation to submit this Written Statement of my views in connection with the Hearing to be held by the Subcommittee on November 20, 1985, on S. 1384 (99th Cong. 1st Sess.), the proposed Copyright Holder Protection Act introduced by Senator Arlen Specter on June 27, 1985. The Bill would prospectively reverse the rule in Mills Music, Inc. v. Snyder, et al., 105 S. Ct. 638, 224 USPQ 313, 53 U. S. Law Week 4035, by adding subdivision (7) at the end of Section 304 (c) (6) of Title 17 of the United States Code, the Copyright Act of 1976, P.L. 94-553, 90 Stat. 2541-2602, as amended.

Section 304 (c) (6) (A) and new subdivision (7) would together read as follows:

304 (c) (6) (A). A derivative work prepared under the authority
of the grant before its termination may continue to be utilized
under the terms of the grant after its termination, but this
privilege does not extend to the preparation after the
termination of other derivative works based upon the copyrighted
work covered by the terminated grant.

(7) Notwithstanding any other provision of law, where an

author or his successor, as defined in subsection (c)(2),

(153)

154

has exercised a right of termination pursuant to this section
and a derivative work continues to be utilized pursuant to
subsection (c) (6) (A) of this section, any right to royalties
from the utilization of the derivative work shall revert to
the person exercising the termination right.

I am generally aware of a similar Bill pending in the House of
Representatives, H.R. 3163 (99th Cong. 1st Sess., August 1, 1985) by
Congressman Howard L. Berman of California. I will have occasion in
this Statement to refer to Mr. Berman's remarks, as reported in the
Congressional Record when introducing his Bill.

I am a member of the California and New York Bars; Adjunct Professor of Law at Pepperdine University School of Law, Malibu, California; Chairman of the Copyright Committee of the Intellectual Property Section of the State Bar of California; Chairman 1982-85 of various Copyright Subcommittees of the Patent, Trademark and Copyright Section of the American Bar Association. I have formerly been employed in the Legal Departments of various motion picture companies, music publishing and record companies, and a broadcasting company, but am semi-retired at present.

I am not acting on behalf of any organization with which I am or have been associated. I am submitting these views solely in my personal capacity, at the invitation of the Committee. I attach to this Statement a three page list of my Published Writings, including, at items 8 and 20, my Written Statements and Testimony before the House Committee on the Judiciary in 1963, and before Senate Committee on the Judiciary in 1982, on the drafting of the Copyright Act of 1976, and on a Bill, S. 2044 (97th Cong. 2d Sess.) which would have amended the 1976 Act.

I believe that Mills Music v. Snyder was correctly decided by the Supreme Court on January 8, 1985. I will assume that the Committee is familiar with the 5-4 Opinion for the Court by Justice Stevens and with the Dissenting Opinion by Justice White. I shall also omit any comment at this time on the language of the Bill, although I have some doubt that the words "shall revert" are satisfactory with respect to the "royalties" or payments that would otherwise be made by contract the "grant" referred to in section 304 (c) (6) (A).

I also expect that the witnesses before the Committee, and other Written Statements being filed with the Committee, will adequately present legislative arguments supporting or opposing S. 1384 or supporting or opposing the Opinions in Mills Music v. Snyder, on legal and business grounds.

Rather, I hope in this Statement to present useful views based on my participation in the development of the Copyright Act of 1976 ("1976 Act") during the early years of that development during 1962 through 1965, and based on my experience in the years I have practiced law under the 1909 Act and the 1976 Act.

I shall first address the "original intention" of the drafters of the 1976 Act. As noted by Congressman Berman at pages E 3783-3784 of the daily Congressional Record for August 1, 1985, Barbara Ringer, Register of Copyrights at the time of the final drafting and enactment of the 1976 Act, testified about Mills Music v. Snyder at the Hearing in April 1985, before the Senate Subcommittee on Patents, Copyrights and Trademarks. Ms. Ringer said in part that:

The Mills case is not what Congress intended,
and ... it represents a windfall for publishers

at the expense of authors and their families ...
The Supreme Court decision seriously undercuts
what Congress intended and deprives authors of
benefits that are rightfully theirs.

Ms. Ringer also submitted a Written Statement after that Hearing in which she writes that:

It is no secret that I was the author of the
provision in question, in the sense that it was
my pen that drafted the language. The content
of the termination provisions had been hammered
out following lengthy debates and discussions,
although the compromises had been reached and
the issues effectively settled before Congress
took up the question of general revision of
the copyright law in formal hearings.

As one of those who participated in those meetings and Hearings in which the termination provisions "had been hammered out following lengthy debates and discussions (at which) the compromises had been reached and the issues effectively settled," perhaps I can offer some light on the underlying legislative history and intent of Congress.

My views in this regard have previously been published in part in my article entitled Helen Sousa Abert, Mary Baker Eddy and Otto Harbach The Road to a Copyright Term of Life Plus Fifty Years, 6 Communications and the Law 3 (No. 3, June 1984), also published in 10 New Matter 2 (Journal of the Intellectual Property Section of the State Bar of California, No. 1, Spring 1985). I attach a reprint of my article for inclusion in the Transcript of this Hearing, for the convenience of the Committee.

The heart of my understanding of the intent of the Congress is that the "status quo" should be maintained with respect to all contractual arrangements affecting the continued utilization of the applicable derivative work, be it a sound recording or a motion picture -- "under the terms of the grant."

This analysis is ably set forth in the Briefs for Petitioner Mills Music to the Supreme Court: Main Brief at 47, Reply Brief at 3, 5, 7 (in footnote 4) and on page 10.

In my opinion, the 94th Congress which passed the 1976 Act had the same intent as the 87th Congress which adopted P.L. 87-668, the first Copyright Term Extension Act of 1962. This intention was expressed in the House and Senate Reports supporting P.L. 87-668, quoted at length in my Helen Sousa Abert article to the effect that:

Existing contractual arrangements ... will not be impaired by
this interim extension; the status quo will be maintained for
all persons having an interest in these copyrights. H.R. Rep.
No. 87-1742 at 2 (1962).

The Report of the Senate Judiciary Committee, Sen. Rep. No. 87-1888 at 2 (1962) is to the same effect.

This intention as to the 1976 Act was noted in Justice Stevens' Opinion for the Court in Mills Music v. Snyder, at the text of his Opinion accompanying note 40:

The "terms of the grant" as existing at the time of termination
govern the author's right to receive royalties; those terms are
therefore excluded from the bundle of rights that the author may
seek to resell unimpeded by any all-advised prior commitment.

Thus, I conclude that the "original intention" of the 94th Congress