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Under the bill, the Copyright Office has to set up a system under which the artist records his or her current address and updates it whenever appropriate.

Our office also has to set up procedures under which the owners of a building can record their efforts to notify the artist of their desire to remove the work from the building.

The bill directs the Copyright Office to conduct two studies. We would study the extent to which the provision that allows an author to waive the moral rights by written agreement has been exercised and; second, in consultation with the National Endowment for the Arts, we would conduct a study on resale royalty rights and alternative solutions. Both studies are due to Congress 18 months after the date of enactment.

So that's basically the bill, Mr. Chairman.

The Copyright Office supports moral rights for visual artists and, for that matter, for all creators, but we note that certain aspects that have been mentioned in the course of the hearing so far are fairly controversial.

The case of moral rights for visual artists is less controversial than moral rights in the case of other works, particularly those involving motion pictures.

Art galleries have no interest in defacing works and the bill protects all conservation activities except those that constitute gross negligence.

A single Federal system is preferable, in our view, to State statutes or municipal ordinances on moral rights because creativity is stimulated more effectively on a uniform nationwide basis.

Visual artworks are not bound to any one location-they move around. Interstate movement of such works presents questions of conflicts of law, vesting, and other issues that make negotiations under multiple State laws too complex.

By bringing moral rights under the Federal copyright law, the bill clarifies compatibility with article 6bis of the Berne Convention . But some of the State laws are more extensive than the Federal visual artists' rights, and the Federal law should not preempt those laws insofar as they grant greater rights.

This was the question that you asked of Mr. Markey and I think our answer is simply that-that we would not encourage the Federal law to preempt State laws to the extent that the States grant greater rights than the act.

If a State decides to grant greater protection, it would not be preempted by this act. Thus, H.R. 2690 provides only a minimum threshold of protection and permits States to enact more expansive protection if that is their desire.

It's my understanding that at this time in fact no State grants greater rights than those granted under the bill, even though Maine's law has a somewhat broader subject matter coverage and could, arguably, be a greater right than those contemplated by H.R. 2690.

I do have concerns about the bill's treatment of visual artworks of recognized stature. The bill apparently creates an absolutist standard. Any modification of a work of recognized stature is prejudicial to the author's honor and reputation. This result may be unintended. Perhaps a rebuttable presumption would be preferable.

Maybe we could justify a per se standard in the interest of preservation but only for the destruction of the work, and the destruction would constitute a per se violation.

On the other hand, distortion or mutilation, as well as destruction, might be presumed to constitute violations of the right in works of recognized stature, but then the defendant would get the chance to produce evidence, if any, rebutting that presumption.

Whether or not we should allow a waiver of the moral rights is the most controversial feature of the bill. Since the matter is not free from doubt, the bill allows waiver, but directs the Copyright Office to study and report on the issue.

We think an important consideration will be the frequency of waiver as a practical matter. Will waivers become a universally accepted practice upon enactment of this law? The same unequal bargaining power between artists and people who buy their works that has led to blanket work-made-for-hire agreements could lead to a similar use of coerced waivers.

The bill gives the Copyright Office 18 months to see whether or not these waivers are being used on a routine basis to strip artists of their rights under this bill.

I wonder, Mr. Chairman, if 18 months is enough time to establish a pattern or practice. Perhaps we should revise the timing of the study so that we give you a report after 18 months and a more comprehensive report 2 years later when more information is available and patterns have become more firmly established.

Finally, the bill makes full statutory damages and attorney's fees available for infringement of artists' moral rights without requiring the artist to register a claim to copyright on the work.

The Copyright Office favors a requirement that the work must be registered to get the benefit of statutory damages and attorney's fees. The author of a work may register the work under current practices even without the consent or participation of the owner of copyright.

I hope my comments will assist the subcommittee in its deliberations. Of course, we remain available for any further assistance. I would be pleased to answer any questions.

Mr. KASTENMEIER. Thank you, Mr. Oman.

[The prepared statement of Mr. Oman follows:]

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STATEMENT OF RALPH OMAN

REGISTER OF COPYRIGHTS

BEFORE THE SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY
AND THE ADMINISTRATION OF JUSTICE

HOUSE COMMITTEE ON THE JUDICIARY
101ST CONGRESS, FIRST SESSION

October 18, 1989

Congress.

I am Ralph Oman,

Register of Copyrights in the Library of Thank you for the opportunity to present views on H.R. 2690, the

Visual Artists Rights Act of 1989.

H.R. 2690 would grant visual artists new federal rights under the Copyright Act: 1) a right to claim or disclaim authorship; 2) a right to prevent distortion, mutilation, and other modification of their work, and 3) under certain circumstances, a right to prevent destruction of a work that is incorporated in a building. Known in civil law countries as moral rights, or "droit moral," the first two of these rights have been granted in various forms to authors in many foreign countries, and to a limited extent, under various legal theories in the United States. Visual artists' rights have also been enacted in ten states.

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In the last Congress, I testified before this Subcommittee regarding moral rights proposals when United States adherence to the Berne Convention for the Protection of Literary and Artistic Works was under consideration. I urged that Congress should take a "minimalist" approach regarding the legislative changes needed to conform our copyright law to the

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Berne Convention.

Congress adopted the minimalist approach, and on March 1,

1989, the United States adhered to the 102-year old Berne Convention without

enacting additional moral rights protection.

Last year, this Subcommittee asked the Copyright Office to conduct a study relating to colorization, time compression, "panning and scanning" of films, and other technologies used in the alteration of motion pictures. On March 15, 1989, I submitted the colorization study. I believe the time is now ripe for a comprehensive examination of moral rights in all fields of authorship.

Under the laws of most European countries, moral rights are included in the bundle of rights that comprise a copyright. These rights

are considered to be personal rights generally that are different from the economic and proprietary aspects of copyright. The term "moral rights" does not have a precise definition; in general, it refers to those "non-economic" rights ensuring respect for the creator's personal vision, as embodied in a work of authorship. In general, there are four basic moral rights: 1) the right of publication; 2) the right to withdraw a work from public distribution; 3) the right to claim and be credited for authorship (known as right of attribution); and 4) the right of respect for the work, known as the right of integrity.1 The principal moral rights are those of attribution and integrity. The right of attribution protects an author's ability to receive credit for his or her creations, or to disclaim authorship of works that he or she did not, in fact, create. The right of integrity

the

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These are the most commonly recognized rights at the national level. It is important to note that the Berne Convention refers only to three and four above.

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permits an author to prevent changes in his or her work that are "injurious to his or her honor or reputation;" for example, changes that materially alter the author's vision, or inaccurately represent the author's views as expressed in a work.

The theory of moral rights is that they result in a climate of artistic worth and honor that encourages the author in the arduous act of

creation.

H.R. 2690 would assemble in the federal copyright law rights that already exist in some measure, but are dispersed among the common law, disparate state laws, and federal unfair competition laws. The bill would also offer authors the opportunity to safeguard from destruction their works of art that have been incorporated in a building in the event the owner wishes to remove the work of art or demolish the building.

Of the two core rights of attribution and integrity, the right of integrity is the more controversial. The integrity right generally means

that an author, even if he or she has conveyed or licensed all economic rights to the work, retains the power to prevent, or at least object to, the distortion of the work by the transferee or licensee. An overbroad right against any material alteration could unnecessarily interfere with the ordinary marketing and distribution of works. Visual artists may have a special need for a right of integrity--that of preservation. If a unique

work is distorted, mutilated, purposes, have been destroyed. out-right destruction of a work is not a moral rights violation. Moral rights are personal to the author and are intended to protect the personality and integrity of the author, not necessarily the work itself. Although

or altered, it may, for all practical The general view of commentators is that

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