3 remains today) that the doctrine of "moral rights", if transported into American copyright law, would greatly alter the delicate balance of rights which is the foundation of our copyright system. Only when lengthy and painstaking negotiations and deliberations conducted under your guidance produced the guarantee of moral rights "neutrality" did the magazine industry withdraw its opposition to Berne adherence. Your wise and emphatic declaration of neutrality preserved the delicate framework of literary rights which forms the foundation of a successful industry. The actions of the 100th Congress cannot accurately be construed by anyone as an explicit or implicit endorsement of the proposition that the doctrine of "moral rights" has become, or should become, part of our Copyright Act, or that enactment of comprehensive "moral rights" legislation would serve a meritorious public purpose. Last year Congress concluded that enactment of a federal "moral rights" statute was not necessary for the United States to satisfy its obligations under Article 6 bis of the Berne Convention. This year, apparently, the question is whether Congress should enact such a statute even though our nation is under no obligation to do so. We submit that the answer, clearly, is "no." Mr. Chairman, our members are in the business of disseminating information to the reading public in a timely manner. The record of the Berne debate is replete with examples given to you and to your colleagues by our members and by others of the impediments to the accomplishment of this objective which would be created by a federal "moral rights" regime. Permit me to recall the testimony offered before this subcommittee last year by John Mack Carter, a distinguished editor with decades of experience in preparing magazines for publication. Mr. Carter gave you a "hands-on" look at the real-world implications of "moral rights" for a time-sensitive, highly collaborative industry such as ours. "I am not a lawyer, nor an expert on copyright or on international trade. But I am an expert on editing a magazine, and I guarantee that adoption of "moral rights" would radically alter the way American magazines have been edited for over 200 years. The ramifications are enormous. "The editor is responsible for seeing that each issue is published on time. "Moral rights" would drastically curtail the editor's freedom of action and judgment, making the meeting of this responsibility enormously difficult, if not impossible. Delays means huge losses for the magazine and its advertisers. "The editor has no choice; all materials must "Authors and the magazine industry are aware that such editing takes place. It would be an unfair burden on editors and on the magazine industry to place at risk an issue of a magazine -- or to risk being thrust into litigation because editing changes made in an article were not approved by an author. "The process and problems with respect to 5 they will appear in the magazine. It is impossible to allow all authors and photographers I know that many other magazine editors and publishers from all over the nation voiced similar concerns in their communications with you and your colleagues. Those concerns of the men and women who work "in the trenches" are as valid today as they were last year. As an attorney who is regularly called upon to advise these men and women, I have long been troubled by the amorphous, subjective, ephemeral nature of this "natural law" notion known as "moral rights." I am especially concerned by its inhibition of editorial freedom and by its infringement upon individual freedom to enter into contracts regarding personal property. As Mr. Carter explained, in the magazine business, time is of the essence. Readers and advertisers demand on-time publication and distribution. The last thing editors and publishers need is a requirement to consult with me or some other lawyer, and with writers and photographers (and their lawyers), about whether the last-minute cropping of a photograph or the on-deadline editing of an article infringes anyone's "moral rights." And even if I were to be consulted, despite supposed expertise in matters of media law, how could I possibly render objective advice and counsel on the issue of whether such cropping or editing impugns anyone's "honor" or "reputation"? My professional instinct would be to look to the agreement between the parties to see what is permitted and whether terms are defined and conditions are spelled out. But "moral rights" exist outside the four corners of an agreement and despite anything an agreement may say. How could any attorney render sound legal advice in such a setting? How can an editor or publisher be expected to meet deadlines under such constraints? magazines be expected to provide information to the public on a timely basis? Those who advocate a uniform federal law of "moral rights" do indeed bear an extraordinarily heavy burden of proof. How can B.. Work For Hire MPA's position on "work for hire" is founded upon the same principle: the balances and compromises embodied in the 1976 Act are fair and, on the whole, have worked well. Absent extraordinarily compelling reasons, change is simply unjustified. 1. CCNV v. Reid Although our industry courts of appeal had a different understanding of the meaning of "employment" in section 11 of the Copyright Act, our initial analysis is that the Supreme Court's recent decision in CCNV v. Reid does not destroy the delicate and carefully crafted compromise which gave birth to the Act. Though disappointing, the Court's decision itself appears to have been crafted in the spirit of the 1976 Act, and we do not ask you today to overturn it. The impact on magazines will be significant but we will try to adjust. 7 The issue before the Court was the meaning of paragraph (1) of the Act's work for hire provision: who is an "employee" acting "within the scope of his or her employment"? Several U.S. Courts of Appeal issued conflicting opinions. Photographers, illustrators, and others argued that Congress meant the employer-employee relationship to be defined in the strictest sense - a "formal, salaried" relationship. Only the Ninth Circuit agreed with that view. Magazine publishers and others argued that there is an employer-employee relationship whenever the hiring party exercises "supervision and direction" over the creation of the work. The Second, Fourth, and Seventh Circuits agreed. Still a third interpretation came from the D.C. Circuit and the Fifth Circuit - that the principles of the common law of agency determine whether a person is an "employee." The Supreme Court agreed to review the D.C. Circuit's opinion in order to resolve the conflict. Because of the importance of the issue to the magazine industry, MPA, together with several of its member companies, submitted an amicus curiae brief supporting the "supervision and direction" test. Magazines had come to rely heavily on "freelance" contributors, such as writers, photographers, and illustrators, who are retained on a regular basis but are not salaried employees, even though they perform similar tasks and work under the supervision and direction of the editors and publishers. Unfortunately, from our point of view, the Supreme Court rejected the "supervision and direction" test. The Court also |