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[Vol. 68, 1989] sion should take. Most of the witnesses endorsed one of a half dozen bills pending before the committee and testified solemnly that adoption of any of the other bills would bring the progress of science and the useful arts to a screeching halt." Representatives Sol Bloom and Fritz Lanham expressed their frustration with the testimony, and Representative Bloom inquired whether any solution to the various disputes would be feasible." An author of the Dallinger bill suggested that the lawyers for the interests affected by copyright have another try at the conference approach over the summer." House Committee members endorsed the suggestion, with the proviso that the list of invitees be broader than before. Representative Randolph Perkins pointedly suggested the importance of including broadcasters, while Representative Bloom proposed that members of the House Committee also attend." After some bickering among witnesses about starting points for discussion, Perkins persuaded them to give the idea of further conferences serious consideration. Bloom successfully moved the appointment of a subcommittee to oversee the effort.

100

The Committee appointed Bloom to head a five-person subcommittee. The meetings began the following April101 and continued for nearly a year. The list of invitees was initially expansive. 102 In an early meeting, however, representatives of ASCAP had a rancorous exchange with representatives of the National Association of Broadcasters, and the broadcasters withdrew in a huff. 103

See, e.g., 1925 House Hearings, supra note 88, at 34-35 (testimony of Matthew Woll, Int'l Allied Printing Ass'n); id. at 136-37 (testimony of John Paine, Victor Talking Machine Co.); id. at 227-31 (testimony of Alfred Smith, Music Indus. Chamber of Commerce); id. at 426-27 (testimony of Gabriel Hess, Motion Picture Producers and Distributors of America); 1924 House Hearings, supra note 86, at 169-71 (testimony of E.C. Mills, ASCAP); id. at 249-50 (testimony of Charles H. Tuttle, Nat'l Ass'n of Broadcasters); id. at 253-55 (testimony of George P. Ahrens, Motion Picture Owners Ass'n).

91 See 1925 House Hearings, supra note 88, at 367 (remarks of Rep. Lanham); id. at 483 (remarks of Rep. Bloom).

98 Id. at 483-84 (colloquy).

99 Id. at 484 (colloquy).

100 Id. at 485-86 (colloquy).

101 See Copyright Conferences Resumed, 107 Publishers' Weekly 1432 (April 25, 1925).

102 See Copyright: Hearings on H.R. 10.434 Before the House Comm. on Patents, 69th Cong., 1st Sess. 15-17 (1926) (hereinafter 1926 House Hearings) (testimony of F.A. Silcox, United Typothetae of America). Initially, the conference met as a large group. Later, members met in roughly 150 small meetings to work out bilateral or trilateral agreements on specific issues. 103 See 1926 House Hearings, supra note 102, at 193-96 (testimony of L.S. Baker, Nat'l Ass'n of Broadcasters).

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After numerous meetings, representatives of almost all of the participating industries agreed on the text of a bill. The centerpiece of the bill would have enabled the United States to adhere to the Berne Convention, 104 an international copyright treaty mandating copyright protection without formalities. The language and structure of the bill reflected its compromise nature. Individual clauses had been created through several series of bilateral negotiations and fit together awkwardly. 105 It also lacked any accommodation for the absent broadcasters' concerns. Nonetheless, the bill, introduced as the Vestal bill in the 69th Congress, had a long list of endorsements. The broadcasting industry, of course, opposed the bill bitterly and allied with the talking machine industry and the theatre owners to block it.106 Simultaneously, they pursued legislation to privilege public performance and broadcast of music. 107

The Vestal bill languished in Congress for several years, accumulating opposition from libraries, periodical publishers, academics, and a splinter group of theatrical producers, 108 as well as broadcasters, motion picture producers, and the talking machine industry. In 1930, supporters of the Vestal bill intensified their efforts toward enactment. During the 71st Congress, the House Patent Com

109

104 See supra note 12.

105 The Register of Copyrights gave this reason for preferring his own Perkins bill over the draft that emerged from the conferences. See 1926 House Hearings, supra note 102, at 227-39.

106 See, e.g., id. at 193-98 (testimony of L.S. Baker, Nat'l Ass'n of Broadcasters); id. at 199-206 (testimony of Fulton Brylawski, Motion Picture Theatre Owners of America). Although representatives of the talking machine industry and of the theatre owners had participated in the conferences throughout, they were unable to reach agreements with ASCAP. See id. at 302-03 (testimony of Alfred L. Smith, Music Industries Chamber of Commerce).

107 See generally 1926 Joint Hearings, supra note 90.

108 See General Revision of the Copyright Law: Hearings on H.R. 6990 Before the House Comm. on Patents, 71st Cong., 2d Sess. 100 (1930) (hereinafter 1930 House Hearings] (testimony of Carl Cannon, American Library Ass'n.); id. at 144 (testimony of George C. Lucas, Nat'l Publishers' Ass'n); id. at 161-69 (testimony of William Klein, Shubert Theatre Group).

109 The catalyst for this activity was the approaching deadline for accession to the Berlin text of the Berne Convention. See id. at 59-61 (testimony of Rep. Sol Bloom). See generally Solberg, The International Copyright Union, 36 Yale L.J. 68, 85-102 (1926). The Berlin text permitted a nation to adhere to Berne while specifying reservations to provisions of the Convention. A 1928 revision of the convention in Rome, scheduled to come in to force in 1931, removed the privilege of adhering with reservations. See generally Goldman, supra note 11, at 7. Thus, if the United States wished to adhere to Berne subject to reservations, it was necessary to do so by August of 1931. At no time during the many efforts to accede to Berne over the past 100 years, including the drive that culminated in the Berne Convention Implementation Act of 1988, have industry representatives agreed on anything resembling wholehearted compliance with

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[Vol. 68, 1989] mittee held further hearings on the Vestal bill.110 Authors' representatives met with representatives of organizations opposed to the bill throughout the night during the hearings and reached further compromises on disputed provisions. Witnesses thus explained to the House Committee that they had opposed the bill during the previous day's testimony, but were now willing to endorse it."12 Members of the Committee urged that further negotiations proceed with dispatch.13 Representative Lanham suggested that one dispute be settled on the spot, in the hearing room and during the testimony.114 As a result of the hasty negotiations, the House Committee reported the Vestal bill favorably, observing that "practically all the industries and all the authors have united in support of this revision."

99115

"Practically all the industries," of course, was not quite the same as all of the industries. Industries that had gotten little satisfaction from the conferences persuaded members of Congress to press their proposals on the floor of the House. The House of Representatives voted in favor of the Vestal bill only after adopting floor amendments restricting ASCAP's activities and privileging for-profit public performances of phonograph records and receptions of radio broadcasts. 116

Berne's provisions. See, e.g., 134 Cong. Rec. H10,094-98 (daily ed. Oct. 12, 1988); 134 CONG. REC. S14,551-S14,566 (daily ed. Oct. 5, 1988), see also Olson, supra note 2, at 121 ("To make ... consensus possible, the Berne bill was stripped of those provisions that threatened major interest groups.”). See generally U.S. Adherence to the Berne Convention, supra note 16.

110 1930 House Hearings, supra note 108.

!!! See id. at 140-41 (testimony of William Hamilton Osborne, Authors' League of America).

112 See, e.g., id. at 100-02 (testimony of Carl Cannon, American Library Ass'n). 113 See, e.g., 1930 House Hearings, supra note 108, at 264 (testimony of William A. Brady: "Throughout your different hearings, many of your members have suggested to the publishers and authors 'Why not get together? Why not go out in the hall and have a little talk and settle this matter?' "'); see also 72 Cong. Rec. 12,000 (1930) (remarks of Rep. Busby).

114 1930 House Hearings, supra note 108, at 155. When William Warner, of the National Publishers' Association, alluded to a disagreement between authors and periodical publishers over the ownership and scope of serialization rights, Rep. Lanham suggested that Warner interrupt his testimony in order to permit authors to express their views and then negotiate an immediate resolution. Id.

115 H.R. REP. No. 1893, 71st Cong, 2d Sess. 8 (1930).

116 74 Cono. Rec. 2006-37 (1931), 72 Cong. Rec. 12,007-15, 12,473-75 (1930); see Solberg. The Present Copyright Situation, 40 Yale L.J. 184, 201-02 (1930). The House debated, but ultimately defeated an amendment that would have made ASCAP's activities illegal and a complete defense to an infringement suit brought by one of its members. See 74 CONG. REC. 2031 (1931).

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297

The amendments, however, failed to mollify the bill's opponents. When the House referred the bill to the Senate, representatives of broadcasters, radio and phonograph manufacturers, and motion picture theatre owners demanded that the Senate hold hearings to receive testimony in opposition to the bill. After listening to the testimony, the Committee settled on a series of amendments and reported a by now complex, and internally inconsistent, Vestal bill to the Senate floor, where it got caught in a filibuster on another matter. 118

In the following Congress, the House Committee started over. The new Committee Chairman scheduled extended hearings and met privately with industry representatives." He then introduced a bill that embodied his notion of a fair compromise. In the face of opposition from the motion picture theatre owners, map publishers, and broadcasters, he revised the bill to incorporate their suggestions. 120 Motion picture producers and distributors and ASCAP denounced the changes. 12 Chairman Sirovich rushed the bill to the House floor under a special rule, 122 but the opposition of other members of the House Patent Committee killed the bill before it could be put to a vote. 123

Meanwhile, private negotiations began to collapse in the face of the Depression economy. Organizations that made concessions in the spirit of compromise in 1926, 1928, or 1930 were no longer satisfied with their bargains. 124 At the suggestion of a representative of

117 See General Revision of The Copyright Law: Hearings on H.R. 12,549 Before the Senate Comm. on Patents, 71st Cong., 3d Sess. 1-2 (1931) (remarks of Chairman Waterman).

118 See Goldman, supra note 11, at 6-7.

119 Private industry representatives continued to meet among themselves in the now familiar conferences.

120 See General Revision of the Copyright Law: Hearings on H.R. 11,948 Before the House Comm. on Patents, 72d Cong., 1st Sess. I (1932) (remarks of Chairman Sirovich). ASCAP also insisted on amendments, but Chairman Sirovich declined to adopt them. See id.

121 See id. at 45-70 (testimony of Gabriel L. Hess, Nat'l Distributors of Motion Pictures); id. at 83-160 (testimony of Nathan Burkan, ASCAP). Among the changes was an amendment sharply reducing the remedies available for the unauthorized exhibition of motion pictures. See id. at 28-29 (testimony of Abram F. Meyers, Allied States Ass'n of Motion Picture Exhibitors).

122 75 CONG. Rec. 11,059 (1932).

123 Goldman, supra note 11, at 7. See 75 CONG. Rec. 11,065-72 (1932).

124 See, e.g.. International Copyright Union: Hearings on S. 1928 Before the Senate Comm. on Foreign Relations, 138 Cong., 2d Sess. 89-90 (1934) (hereinafter 1934 Senate Hearings) (testimony of M.J. Flynn, American Fed'n of Labor) (printing unions currently oppose adherence to Berne unless publishers agree to raise wages).

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[Vol. 68, 1989] organized labor, the Senate Committee on Foreign Relations asked the State Department to organize an informal committee of State Department, Copyright Office, and Commerce Department representatives to oversee further private negotiations. 125 The interdepartmental committee held a series of conferences with representatives of affected interests. They drafted a bill that proved to be acceptable to broadcasters and to the other interests that had opposed the Vestal bill. 126 Authors, composers, publishers, motion picture producers, and organized labor, however, found the bill completely unacceptable and promptly got off of the bandwagon. 127 Strong support from the administration enabled the bill to pass the Senate, but strong opposition from interested parties caused it to perish in the House. 128

With copyright revision stalled in Congress, a private foundation attempted to restart it. The National Committee of the United States of America on International Intellectual Cooperation called its own copyright conferences. 129 After sixteen months of meetings, it was unable to arrive at a bill that everyone would support. The Committee drafted a bill nonetheless.130 The bill went nowhere.

125 See Revision of the Copyright Laws: Hearings before the House Comm. on Patents, 74th Cong., 2d Sess. 221-60 (1936) (hereinafter 1936 House Hearings) (testimony of Sen. F. Ryan Duffy). A representative of the printing and typographic unions requested that the State Department be enlisted to mediate between publishers and organized labor. Publishers favored adherence to Berne. Labor unions facing Depression wages demanded higher pay or statutory provisions to protect American printing jobs in return for labor's support of the treaty. See 1934 Senate Hearings, supra note 124, at 90-91 (colloquy).

126 See 1936 House Hearings, supra note 125, at 260-89 (testimony of Wallace McClure, Dep't of State); id. at 337-40 (letter from Wallace McClure to Phillip Loucks, Nat'l Ass'n of Broadcasters); id. at 1068-74 (prepared statement submitted by Wallace McClure, Dep't of State).

127 1936 House Hearings, supra note 125, at 279-80 (remarks of Chairman Sirovich); see Hearing on S. 2465 Before the Senate Comm. on Patents, 74th Cong., 1st Sess 3-15 (1935) (testimony of Louise Silcox, Authors' League of America); id. at 15-26 (testimony of Gene Buck, ASCAP); id. at 47-49 (testimony of John G. Payne, Music Publishers' Protective Ass'n); id. at 53-56 (testimony of Gabriel Hess, Motion Picture Producers and Distributors of America); id. at 739-43 (testimony of Thorvald Solberg, former Register of Copyrights).

12h See Duffy, International Copyright, 8 Air L. Rev. 213, 220 (1937).

129 See Copyright Group Making Progress, 135 Publishers' WeekLY 1281 (April 1, 1939).

130 S. 3043, 76th Cong., 2d Sess. (1940). See 86 CONG. Rec. 63-78 (1940); Goldman, supra note 11, at 10-11; see also Chafee, supra note 7 (comparing major provisions of the Shotwell bill with then-current law). See generally Note, Copyright-Adherence to the International Copyright Union and Proposed Copyright Reform (Shotwell bill), 12 Air L. REV. 49 (1941).