jukebox licensing would be unduly burdensome to all concerned, because it could require the operator to secure both a compulsory license for works of U.S. origin and negotiate a license (or licenses) for foreign works. Although it has been suggested that there are de facto compulsory licensing systems in some European countries, AMOA believes that reliance cannot be placed on mechanisms that lack a clear legal foundation. A Two-Tier System Will Not Work In short, AMOA's primary concern is that U.S. adherence to the Berne Convention could, without some modification or reservation, create a situation whereby each individual jukebox operator would be required to negotiate with each individual owner of a copyright of a work of foreign origin, if the operator wished to offer that work on his jukebox. Given the approximately 225,000 jukeboxes in operation in the United States, two results are likely. 1. If jukebox operators choose, at considerable expense, to negotiate individually with foreign copyright owners, the additional expense would almost certainly result in a reduction in the number of jukeboxes in the U.S., leading to a decline in the royalties for all copyright owners. 2. More likely, however, many U.S. jukebox owners will decide to exclude works of foreign origin on coin-operated phonorecord players in this country. Because Article 11(1) of the Berne Convention calls for copyright owners to enjoy the exclusive right of authorizing public performances of their musical works, it is unlikely that jukebox operators would wish to enter into multilateral negotiations with foreign copyright owners. Therefore, if U.S. jukeboxes were limited solely to domestic works, foreign copyright owners would be deprived of royaltypayments and professional exposure in this country. U.S. Copyright Office Legislative Proposals AMOA has not had sufficient time to study the proposals put forward last week by the U.S. Copyright Office, and would prefer not to make any conclusive statement at this time or be bound to any viewpoint on the Copyright Office's suggestions. It appears to us, however, that the mechanism proposed would add at least one more layer to a system that is already in place and working. Credit for this is due in no small measure to the voluntary agreement arrived at last year between AMOA and the performing rights societies. At this time, therefore, we are far from convinced of the utility of the Copyright Office's proposals. Conclusion AMOA believes that if U.S. copyright law is incompatible with Berne, Congress should consider carefully whether the United States should adhere to the Berne Convention at all. If Congress decides that the U.S. should adhere to Berne, the U.S. should specify in its accession document that it does not intend that any provisions of U.S. law that are incompatible with Berne be amended as a consequence of adherence. believes that at their current levels the compulsory license fees are too high and have produced a decline in the number of jukeboxes in operation, we also oppose any changes in U.S. law that would further hasten the decline of the industry. Lastly, although AMOA I thank the subcommittee, and will try to respond to any questions that you might have. The Amusement and Music Operators Association ("AMOA") submits these comments on the Draft Preliminary Report of the Ad Hoc Working Group on United States Adherence to the Berne Convention (hereinafter "Draft Report"). AMOA's 1600 members own over half of the jukeboxes in the United States. AMOA has represented its members for many years on copyright issues, and actively participated in the legislative process that led to the revision of the United States Copyright Act in 1976. Subsequently, AMOA has negotiated with the performing rights organizations ASCAP, BMI and SESAC with regard to several aspects of the jukebox compulsory license provided for in Section 116 of the Copyright Act of 1976. - As set forth in the Federal Register notice calling for comments, the purpose of the Ad Hoc Working Group on United States Adherence to the Berne Convention was "to identify those provisions of United States law that are incompatible with the Berne Convention, and that might require changes in United States law," if the United States were to accede to the Convention. 51 Fed. Reg. at 3707 (January 29, 1986). Although the Working Group draft thus refers to the need to make changes in U.S. law, the consequences of incompatibility of U.S. law with Berne are not clear. In the foreword to the Draft Report, the Working Group stated that: "the President and Congress determine whether U.S. copyright law, other statutes and common law are compatible with Berne, and what changes, if any, are required to provide compatibility, i.e., protection of a nature that satisfies the requirements of Berne with respect to works of foreign origin." Draft Report at 8. The Working Group also observed that the Director General of the World Intellectual Property Organization (WIPO) has advised the Working Group that the international bureau which administers Berne has no procedure for reviewing the instrument of accession filed by a prospective member to determine whether its laws are compatible with Berne. The Working Group further noted that any complaint by another member country that U.S. law is not compatible with Berne "probably would have to be settled under Article 33(1) which provides that disputes between members concerning interpretation or application of the Convention shall be brought before the Court of International Justice," unless the country depositing its instrument of accession declares that it does not consider itself bound by the provisions of Article 33 (1). Draft Report at 8-9. Similarly, Mr. Donald C. Curran, Associate Librarian of Congress and then-Acting Register of Copyrights, in a statement made before the Subcommittee on Patents, Copyrights and Trademarks of the Senate Judiciary Committee, 99th Congress, 1st Session (May 16, 1985), ("Curran Statement") pointed out that it is not clear whether provisions of the Berne Convention are self-executing, i.e., whether they become the law of the land upon ratification of the treaty in the absence of separate implementing legislation. Mr. Curran stated that the Copyright Office had not recommended answers to the question relating to self-execution, but urged that the issue be carefully considered by Congress. AMOA strongly endorses Mr. Curran's statement that: "What is at stake in our system is the amendment of our That is, if the United States copyright law is incompatible An jukebox licensing provisions could, with respect to works of foreign origin, require jukebox operators to negotiate with every individual artist whose records were played on the jukebox. AMOA has spent the better part of the past five years working on an equitable solution to the copyright question, one that would provide protection and compensation for the artists, yet not place an overwhelming burden on jukebox operators. agreement was finally arrived at and signed on May 13, 1985, between AMOA and the performing rights societies. If compulsory licensing for works of foreign origin is done away with through U.S. adherence to Berne, the already-declining jukebox industry could be fatally jeopardized. Any significant increase in costs (the certain result of adherence to Berne) would further reduce the number of jukebox locations that could be maintained. Reduction in the number of jukeboxes in operation would result in less revenue to copyright owners. Retention of the compulsory license is, therefore, in the best interests of the copyright owners and the jukebox operators. When Congress established the compulsory license as part of the 1976 Copyright Act rewrite, the House Judiciary Committee report accompanying the bill stated that "no |