copyrighted musical works "contains an explicit recognition of the more important moral rights."8 By contrast, Alternative B would establish a "right to claim authorship of" a copyrighted work even after the exclusive rights have been transferred by the author. While RIAA supports the right of authorship in principle and while its member companies provide authorship credit wherever practicable, we believe that Alternative B, without appropriate limitations, would place recording companies in unjustifiable jeopardy for failure to credit a copyright claimant whose identity was unknown or whose claim to authorship was in dispute at the time when their products were released. d. Notice RIAA is opposed to the Copyright Office's proposal to retain the notice requirement for U.S. works while abolishing it for works originating in other Berne Union countries, not only because this proposal discriminates in favor of foreign works, but also because we believe that a mandatory notice of antiquated and unnecessary relic of past copyright statutes. However, even if the notice requirement were abolished with respect to domestic as well as foreign works, we expect that many RIAA member companies would continue to affix notice to their products on a voluntary basis, and therefore we have no objection to the Copyright Office's alternative proposal to create statutory incentives for the voluntary use of notice, e.g., by giving notice certain evidentiary value against an innocent infringement defense or by making its use a basis for increased damages. One further technical point needs to be made. The Copyright Office bill proposes to add the words "except for Berne Convention works" to SS 401-403 of the 9 Copyright Act, and it defines a "Berne Convention work," in pertinent part, as "a work that qualifies for protection in the United States under the Berne Convention."10 Insofar as there is some uncertainty as to whether sound recordings qualify for protection under the Berne Convention, the Copyright Office draft is 11 insufficient as a technical matter to make clear whether sound recordings not of U.S. origin are exempt from the section 402 notice requirement or not. If the Copyright Office proposal were adopted, it would need to be amended to clarify what the Copyright Office presumably intended, i.e., that foreign sound recordings would be exempted from the notice requirement in the same way as other foreign works. RIAA opposes the Copyright Office's proposal to retain registration as a prerequisite to instituting a copyright infringement suit, for the following reasons. In the first place, we are not persuaded that the Ad Hoc Working Group was wrong in concluding that registration as a prerequisite to suit is incompatible with Berne as applied to works of foreign origin. Secondly, we fear that a failure to deal with this apparent incompatibility under U.S. law might provide foreign nations with an excuse to retain or institute additional obstacles to the bringing of infringement suits under their laws, thereby making it more difficult for U.S. copyright owners to enforce their rights outside the United States. On this issue, therefore, we believe that any doubt on the question of compatibility should be resolved in favor of a relaxation of formalities, not only to avoid the appearance of incompatibility at home 12 See Preliminary Report, Chapter 9 at 10. but also to strengthen our hand in enforcing our rights abroad. Accordingly, we favor the abolition of registration as a prerequisite to suit for U.S. and foreign works alike. COMMENTS BY SESAC REGARDING ON BERNE CONVENTION The following comments on behalf of SESAC are directly responsive to the draft report prepared by the Copyright Office and do not purport to examine the issues of adherence to the Berne Convention in any other context. SESAC has consistently supported the ideals and spirit of the Berne Convention. SESAC further believes that adherence by the United States to Berne at this time to be a matter of first priority. In general, SESAC supports the proposition that only those amendments to United States copyright law deemed required should be considered at this time. In addition, SESAC believes that the United States must not only accomplish adherence to Berne, but must do so in a way that states clearly to the international copyright community that it does so in a forthright manner that will allow U.S. representatives the future opportunity to occupy a position of strength and leadership. To that end, SESAC will identify those areas designated desirable in the Copyright Office draft which it believes should be included in the legislative effort to achieve adherence. To facilitate comparison, SESAC's Comments use the identification used in the draft. A. In accord with need for definition of origin of works. B. The concept of retroactive application of Berne is believed not in the best interests of the United States. The primary objection is best illustrated by the draft language contained in Alternative B, and the Commentary. It holds the potential of needless and, perhaps, excessive litigation, particularly Section 4. Moreover, is not the formality of registration for extension repugnant to Berne? SESAC is in accord with Alternative A., which denies retroactive application of statutory copyright based upon U.S. adherence to Berne. SELF EXECUTION - In accord with need to adopt statutory position that Convention is not self-executing to create specificity with respect to litigation. D. No position taken regarding architectural works. COMPULSORY LICENses The draft primarily addresses the compulsory license for jukebox. SESAC, during the process of omnibus revision, consistently opposed the principle of compulsory licenses. It remains opposed as a matter of repugnancy to the express grant of rights to authors in the Constitution. MORAL RIGHTS SESAC does not desire to express an opinion with regard to this issue because of the breadth and scope of the |