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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 106(a)(3)(B) should be clarified.

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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 Such unpublished works, of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,

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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

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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 substan

tial 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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The Office is also directed to conduct 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 the United

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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 delibera

tions. The Copyright Office remains available for any further inquiries or

requests for assistance you may have.

COPYRIGHT MORAL RIGHTS: WORK MADE FOR HIRE (S. 1253) AND MORAL RIGHTS IN PUBLISHING, PHOTOGRAPHY, AND GRAPHIC ARTS

WEDNESDAY, SEPTEMBER 20, 1989

U.S. SENATE,

COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON PATENTS, COPYRIGHTS AND TRADEMARKS,

Washington, DC. The subcommittee met, pursuant to recess, at 10 a.m., in room 226, Dirksen Senate Office Building, Hon. Dennis DeConcini (chairman of the subcommittee) presiding. Also present: Senator Hatch. OPENING STATEMENT OF HON. DENNIS DeCONCINI, A U.S.

SENATOR FROM THE STATE OF ARIZONA Senator DECONCINI. The Subcommittee on Patents, Copyrights and Trademarks will come to order.

I am pleased once again today to convene the hearings by this subcommittee on a subject of vital importance to the copyright community. Today's hearing is the second in a series of three hearings on moral rights and the copyright laws. The specific issue today is moral rights in the publishing industry.

In addition to the general subject of moral rights we will also discuss the specific topic of work for hire and Senator Thad Cochran's bill, S. 1253, to further refine its application to the copyright law.

During last year's consideration of the Berne Convention implementing legislation, Senator Cochran proposed to offer an amendment incorporating his legislation amending the work for hire provision of the Copyright Act. Senator Hatch and I asked him at the time to postpone offering that amendment, and promised him that we would schedule a hearing on the issue in this subcommittee promptly during the session of this Congress. Senator Cochran graciously consented to our request and has worked closely with our staff so that we could put together the hearing today.

We agreed to schedule a hearing after the Supreme Court had decided Community for Creative Non-Violence versus Reid, and to permit the parties affected by that decision to have enough time to analyze and understand it. I am hopeful that today's discussion will help the subcommittee understand better the effects of that decision on the publishing industry.

I would like to thank Senator Cochran for his hard work and leadership in this area. He has shown great perseverance and devotion to the problem that artists face when dealing with publishers

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