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and attorney's fees for violation of moral rights. The work would be registered, it is presumed, by the copyright owner, if the country of origin is the United States.

Section 7 provides the same three year statute of limitation term as for copyrights, and further provides that the claim accrues when the author knows or should know of the moral right violation.

Section 8 makes fair use defenses applicable to artists' rights.

Section 9 directs the Copyright Office, in consultation with the National Endowment for the Arts, to conduct a study on resale royalty rights and alternatives thereto. The study would be scheduled for presentation to Congress within 18 months after the date of enactment.

B. Comments of the Copyright Office.

The Copyright Office supports moral rights for visual artists and for all creators, but we note the somewhat less controversial nature of such rights for visual artists. The bill presents no costs to either the consumer or to industry. Galleries have no interest in defacing works, and the bill protects all conservation activities, except those which constitute gross negligence. Consideration of moral rights on a larger scale may

bring into question the issue of works made for hire, which are excluded from this bill. As a practical matter, most works described in the bill are not usually created for hire.

The Office supports the bill's preemption of state moral rights on

a prospective basis.

The bill deals with works of visual art in a consistent and uniform manner. A single federal system is preferable to state statutes or

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municipal ordinances on moral rights because creativity is stimulated more effectively on a uniform, national basis. Visual art works are not bound to any one location. Interstate movement of such works presents questions of conflict of laws, vesting, and other issues that make negotiations under multiple state laws unnecessarily complex.

By bringing moral rights under the federal copyright law, the bill
However, because some

clarifies compatibility with Article 6bis of Berne.

of the state laws may be more extensive than the federal visual artists rights, the federal law should not preempt those laws insofar as they grant greater rights. In terms of subject matter, H.R. 2690 seems to be worded carefully so that preemption only occurs "with respect to works of visual art to which the rights conferred by Section 106A apply."

S. 1198 brings U.S. law into greater harmony with laws of other Berne countries. Numerous developed and developing countries provide by positive law for moral rights. Enactment of moral rights legislation serves another important Berne objective that of harmonizing national copyright laws.

sion.

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The Copyright Office has doubts about the nonwaivability provi

Freedom of alienation and contract are longstanding common law traditions. We understand the concern that the failure to provide for an unqualified right of authors may mean that only those authors who have sufficient bargaining power will be able to preserve their moral rights. Congress may want to allow waivability for several years to determine whether waivers become so commonplace as to negate the moral rights in practice. The waivability provision could be sunset in perhaps five years.

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Another alternative might be to provide for waivability under certain strict conditions, for example, to provide that certain integrity rights may be waived, for instance, but not the attribution right.48

The Office has concerns also about the destruction right for visual art works of recognized stature. The bill seems to create a per se standard in the case of "any intentional or grossly negligent destruction," but the meaning of the preceding phrase's reference to "any destruction" is unclear. Is only intentional or grossly negligent destruction actionable, or can the artist also seek to prove that honor or reputation is harmed by unintentional destruction? The Office recommends reconsideration of this provision. Perhaps a per se standard could be justified in the interest of preservation, but section 106A(a)(3)(B) should be clarified.

The subcommittee should reconsider extending protection to foreign where their works are first unpublished. As such they are

artists, irrespective of nationality or

published. Works of visual art are often

eligible for protection under 17 USC 104(a). Such unpublished works, of course, ought to enjoy the benefits of the bill. They now enjoy all the other benefits of the Copyright Act. But when a work is first published, then, some basis in treaty, bilateral, multilateral or Presidential Proclamation, must exist for protection under the existing copyright law.

S. 1198 extends moral rights to published works of the visual arts whose authors are not nationals of states with whom the U.S. enjoys copyright relations, or which were not first published in such a state. This

48 Another alternative would be to adopt the approach of the House bill, H.R. 2690. Under this bill, the author must expressly waive any rights in a written instrument, which must specifically identify the work and the particular uses of the work to which the waiver applies.

step is generous. It may set a fine example for artists rights everywhere. It may also be problematic in practical terms.

For example, where there is no copyright in a work due to ineligibility, the existence of moral rights could create a de facto copyright. Adaptations or modifications of works of art in our public domain could be challenged on the basis of the federal moral right.

Further, if the duration of moral rights is linked to copyright, it is unclear how this would apply to works ineligible for copyright protection under 17 USC 104.

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.

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. Congress may want to consider the wisdom of this exception to the general principle that extraordinary remedies are available only to registered works. The Copyright Office would support a requirement that the work must be regis

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tered 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.

C. Impact on the Copyright Office.

S. 1198 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. Services not specifically designated, 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 S. 1198. Budgetary considerations would preclude hthe Office from offering the services for free.

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