Congress may decide the public policies underlying moral rights for the visual arts supercede limitations applied generally to protection of foreign works. On the other hand, should Congress condition moral rights in the visual arts upon eligibility under 17 USC 104, the situation will be as follows: 1) federal moral rights will exist in respect of unpublished works of the visual arts, regardless of the nationality of the author; 2) absent a basis for protection under 17 USC 104, foreign artists will enjoy moral rights in published works under the common law or other federal laws (where considerations of nationality or place of publication may not come into play), only to the extent the rights are not preempted by amended section 301 of the Copyright Act. Whether to allow 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? 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 in the work. consider the wisdom of this exception to the available only to Congress may want to general principle that extraordinary remedies are registered works. The Copyright Office would support 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, even without the consent or participation of the owner of the copyright. H.R. 2690 assigns the Copyright Office two recordation functions. In order to acquire moral rights for an unremovable work incorporated in or made part of a building, an artist must make a written agreement with the owner of the building. If the work can be removed without damage, the owner must attempt to notify the author and give him or her 90 days to remove the work. The Copyright Office must establish a system under which the artist may record and update his or her identity and current address. The Office must also establish procedures under which an owner of a building may record efforts to notify the artist (or successors in interest) of the owner's wish to remove the work of art from the building. No explicit fee is designated for providing these services. Section 708 of Title 17 specifically designates the fees for most services of the Copyright Office. however, may fall within catch-all subsection (a)(11), which confers authority to set fees "for any other special services requiring a substantial amount of time or expense, as the Register of Copyrights may fix on the basis of the cost of providing the service." The Copyright Office believes this provision could be invoked to allow the Copyright Office to charge for the cost of establishing the authors' identity, registry and other records proposed in H.R. 2690. Budgetary considerations would preclude the Office from offering the services for free. The Office is also directed to conduct two studies. One study is on the experience under the waiver provision. The other is a study of the feasibility of resale royalties and alternatives thereto in consultation with the National Endowment for the Arts and other appropriate agencies of 41 the United States Government, interested groups in the private sector, and foreign governments. Legislative provision should be made for the funding of these studies and the budgetary impact reported in the legislative history. We will be happy to provide cost estimates. I hope my comments will assist the Subcommittee in its deliberations. The Copyright Office remains available for any further inquiries or requests for assistance you may have. Mr. KASTENMEIER. Incidentally, your 41-page statement as submitted originally to the committee will, of course, be accepted and made part of the record. I think some of your suggestions are well taken. I concede 18 months is a bit early to determine what the practice will eventually turn out to be, and I would think we could amend the bill in that connection. It might even be a matter of 2 years before you can start to see some patterns emerge and then have a final report 2 years after that-by 4 years you should have a fairly good idea in your study, and you can also make further recommendations; not only a study, but recommendations. If it turns out that the common commercial practice is that the artist waive his rights in a sale contract, then obviously, we will not have achieved precisely the right sort of balancing of economic power, so to speak, in arriving at this resolution, at this adjustment of rights, and I suspect we would have to return to the subject. On the other hand, of course, 18 months was suggested because, as you well know, in copyright it's such a turbulent, fast moving area. In terms of economic rights, patterns develop and then it's very hard to dislodge practical economic interests that develop, and we would not want to be too tardy in responding to a perceived practice before it becomes very difficult to do anything about it. As far as State laws go, you say there are a growing number of State visual artists' rights laws. Is there any indication we ought to step back and wait for the State laws to develop, so we'll have more information about their experience before we determine to what extent Federal law is necessary, or ought to preempt State law? Mr. OMAN. I don't think, Mr. Chairman, that it would be in the interest of copyright law generally or the artist in particular, to sit back and wait for the States to come to grips with the issue. We do have, over the past few years, 10 or so States that have enacted moral rights regimes for visual artists. I think our calculation shows that if we were to wait for all of them to act based on the progress we've made thus far, we'd be waiting for another 40 or 50 years, and I'm not sure that that would be in the interest of anyone. As I said in my statement, the work of the visual artists are in many ways national commodities, and you don't create a work for use or exhibition necessarily in one particular State; you want a law to apply that has a consistency across the board. And the patchwork quilt of rights that we would come up with by waiting for the States to act would not be ideal, in my view. Mr. KASTENMEIER. One thing that may concern people, although as I said at the outset, we do not have express opposition to this bill at this time, is what precedential value would this bill have; that is to say, what precedent would a statutory grant for visual artists have for other authors or creators in other context? What is your own view about that, in terms of precedent? Mr. OMAN. I think it certainly does have some precedential value, and I think that's the purpose of using this class of works, those of visual artists, as the trial horse for other categories of works. But I would not say that we would automatically, by adopting this regime, encourage legislation in other areas. Mr. KASTENMEIER. May I ask you this, then: On page 2 of your prepared statement you say, "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. Mr. OMAN. Yes, sir, and that's what you're about in this process right here. We are going to use the visual artists example as the trial horse and see how it works-we're going to have studies down the road. And if seems to work in practice, if it doesn't create unintended consequences, you might consider expanding it to other areas and other media. But I wouldn't say that this is opening the floodgates for specific legislation in moral rights for other fields. As you know from the Berne debate, other media already enjoy minimum moral rights under your formulations. With the minimalist approach to adherence to the Berne Convention, you determined that in fact other works do enjoy a level of moral rights. So it's not like we have a situation where one class of works has moral rights and the others don't. We're just codifying in a Federal standard the moral rights for this one particular class of works. The others will continue to operate as they have over the past few years. Mr. KASTENMEIER. I have just two other questions about the term of rights. The bill makes them coterminus with the term of copyright but there is something different about these rights of paternity and integrity. Do you think artists' rights should be perpetual or should they be limited? Should a great master not be able to have the same interests in his or her work 100 years later, or should it in theory be just limited to our copyright term, whatever that may be at the time? Mr. OMAN. I don't think by failing to give these rights in perpetuity we're jeopardizing the works of the great masters. I think there are other incentives to preserve them. If they've survived for 100 years, they obviously have taken on a great value and the normal market forces, the normal artistic instincts of the society, will preserve them. In terms of the U.S. law, we would, I think, be in a very tough spot trying to justify perpetual moral rights protection in view of the constitutional limitations on the rights under both the patent laws and copyright laws. These rights are granted for limited times to artists, authors, and inventors. To extend it beyond the term of copyright I think would raise serious constitutional problems. Mr. KASTENMEIER. So your answer is one that raises constitutional problems because we can only protect for limited terms and; two, it wouldn't be necessary anyway in the long run-the integrity of works, of great masters' works would be protected in other ways? Mr. OMAN. Yes, sir. Mr. KASTENMEIER. The last question I have is, do you think the bill should be limited to works that are publicly displayed, or should works that are displayed in a person's home also be protected? Do we have an element of intruding on a homeowner's privacy right if the latter were the case? Mr. OMAN. Again, based on the realities of the real world, it would be difficult to enforce a law that reached into an individual's |