rights or interest shall be recognized or created for that purpose. Consequently, the moral rights doctrine is not incorporated into U.S. law by the statute. I am not sympathetic to those who argue that the Congress must now enact moral rights provisions in our copyright law, nor am I sympathetic to those who argue that by joining Berne we have in effect already enacted moral rights legislation. The question that is presently before us is whether it is appropriate and good national policy to enact moral rights in the copyright law, not whether it is somehow required by our action of last year. I am interested in hearing our witnesses today discuss the economic and artistic implications of moral rights. I believe we have gathered together a group of witnesses who have the particular experience necessary to discuss the results of such a change in our copyright law. I want to learn why the artists and creators believe that the addition of moral rights would grant them appropriate and just protection without unfairly restricting the rights of copyright holders and producers. I want to know why the producers believe that granting such protection would prove to be harmful to them and to the viewing public. I am truly undecided on whether we should adjust the balance built into our copyright laws in favor of the artists. I do believe that the proponents of the change bear the burden of the proof; however, in my judgment, that does not represent an impossible burden to overcome. There are a number of areas of copyright law that I believe amending, such as the application of the laws to States. At the end of today's hearing I plan to review the record thoroughly, from the record of hearings we have held on moral rights and work made for hire, and decide what I think the subcommittee should do in this area. I will then discuss with and work with the ranking member and my other colleagues on this subcommittee to solicit their views to see what legislation, if any, we should proceed with out of this subcommittee. I look forward to today's hearing and believe, once again, that we have gathered a very knowledgeable group of witnesses. I want to thank them for taking the time to appear today and, in reviewing some of their statements, to thank them for the comprehensiveness of their statements today. I now yield to the ranking member, Senator Hatch, who has done a lot of work in this area and who has participated in these hearings from the very beginning. The Senator from Utah. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator HATCH. Thank you, Mr. Chairman, for holding this hearing today and for your leadership in this matter. As I stated at our two previous hearings on the subject of moral rights, I believe that the principal purpose of the copyright laws should be to secure and maintain the rights of artists, writers, and other creative individuals. When the copyright law succeeds in this goal, then we all benefit, as artists are then given the necessary incentives and freedom to create those great works of art which enhance all of our lives. Therefore, I am happy to have the opportunity which today's hearing presents to again examine the adequacy of the legal protection of the rights of those who are involved in film, television, and the performing arts, and the necessity-if any-for introducing moral rights concepts into American law. I am interested in preserving a legal structure that stimulates and encourages artists and performers. For that reason I am generally opposed to the imposition of "moral rights" concepts by Federal statute rather than through the bargaining of the parties to a transaction. In the performing arts, particularly in large-scale collaborative projects such as films, the availability and success of collective bargaining as a tool for securing the rights of the performers has to be acknowledged. Unfortunately, those who question the entire concept of so-called moral rights for artists and writers are sometimes accused of being insensitive to the interests of the creative artist. I don't believe anything could be further from the truth. The objections that have been raised concerning the introduction of moral rights concepts into American law are based on the very real concern that such legislation might depress the healthy American literary, art, and film markets and might dry up available commercial opportunities for young, contemporary artists and writers. By any measure the current American markets for copyrightable material, whether it be literary, artistic, or in the performing arts, favor the interests of creators more than do the markets of any other country, particularly those European nations which have most fully embraced the concept of noneconomic moral rights. In the film industry alone, the great success of American movies abroad bears testimony to this fact. The market is truly booming. Those who would fundamentally alter this current state of affairs thus bear a significant burden of persuasion. I am also concerned about questions raised in previous hearings as to the constitutional authority of Congress to enact moral rights legislation under the authority of the copyright clause. Whatever one may think of moral rights for artists, those rights are clearly something other than copyright interests. I hope that today's witnesses will address these concerns in addition to providing us with the perspective of their respective industries. These are extremely interesting issues to me, and I am going to try to keep an open mind and look at this from every aspect. So we look forward to hearing the witnesses today. I want to thank you, Mr. Chairman, for accommodating me this morning. I appreciate your holding this hearing. Senator DECONCINI. Thank you, Senator Hatch. I now yield to the Senator from Vermont, Mr. Leahy. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. Senator LEAHY. Mr. Chairman, I also commend you for convening these hearings on moral rights. As an avid but amateur photographer, I take a particular interest in how creators of works are treated, but I also believe that creators' rights have to be weighed against the rights of copyright holders and the public interest. I look forward to hearing from today's witnesses on the issue of whether change in the copyright laws is necessary or fair or practical. Mr. Chairman, you mentioned joining the Berne Convention in March, and I think that was an extremely important step to protect the rights of American creators. I know Mr. Oman and others agree with me on that. Certainly this country took long enough getting there, and I was glad to be part of the effort that made it possible. The Berne Convention is the oldest and strongest, and I think most effective, international mechanism for protecting copyrights in the global market. Hopefully, our membership will make it harder for those who trade in bootleg copies of U.S. art—whether videotapes, movies, records, books, or anything else to be able to operate. They have pirated the hard work and investments that go into everything from movies to computer software. Now, the basic question of moral rights in movies, including colorization, is a very difficult issue. I think that there is a solution out there, though I'm not sure any of the current proposals quite reach it. Last year I was being involved in the compromise that finally brought about the National Film Preservation Board. We have seen that that seems to be starting off well. Just last month, the board announced the first 25 films to be placed in the National Film Registry. I think there is the possibility of a solution regarding moral rights in films, and maybe today's hearings will help. With that I will hush up so that we can hear from the people here who are most directly affected. Mr. Chairman, as I look around and recognize familiar faces in this room, I realize that not all of them are totally united in what that solution might be. But we know it's a good faith effort and that's why we removed the metal detectors from the doors before we sat you all in the same room. We trust your willingness to work together in "trial by ideas" if not "trial by combat." Thank you, Mr. Chairman. Senator DECONCINI. Thank you, Senator Leahy. At this point, without objection, Senator Simpson's and Senator Grassley's opening statements will be placed in the record. [The aforementioned statements follow:] STATEMENT OF SENATOR ALAN K. SIMPSON SUBCOMMITTEE ON PATENTS, COPYRIGHTS & TRADEMARKS HEARING ON MORAL RIGHTS: OCTOBER 24, 1989 MR. CHAIRMAN, I APPRECIATE YOUR HOLDING THIS HEARING ON MORAL RIGHTS AND THE U.S. COPYRIGHT REGIME. THIS ISSUE HAS TOUCHED US ALL IN SOME WAY, AND I BELIEVE IT IS NECESSARY AND APPROPRIATE THAT THE SENATE ADDRESS IT. WE ALL BECAME FAMILIAR WITH THE TERM "MORAL RIGHTS" LAST YEAR, WHEN LEGISLATION IMPLEMENTING THE BERN CONVENTION WAS CONSIDERED BY THE JUDICIARY COMMITTEE. I LEARNED THEN THAT, WHILE THE UNITED STATES DOES NOT GRANT EXTENSIVE "MORAL RIGHTS" TO THE CREATORS OF ART WORKS - THE WAY SOME EUROPEAN COUNTRIES - OUR COUNTRY STILL POSSESSES SUFFICIENT LAWS THAT CONSTITUTE THE MINIMUM ESSENCE OF MORAL RIGHTS NECESSARY FOR MEMBERSHIP IN THE BERN UNION. WE NOW ADDRESS THE DIFFICULT QUESTION OF WHETHER THE UNITED STATES SHOULD TAKE A STEP TOWARD THE EUROPEANS BY GRANTING ARTISTS SIGNIFICANT NEW "MORAL RIGHTS." I WILL CERTAINLY CONSIDER ALL OF THE INFORMATION COLLECTED BY THIS SUBCOMMITTEE ON THE QUESTION, BUT MY INITIAL RESPONSE IS "NO." THERE ARE SIMPLY TOO MANY BUSINESS AND COMMERCIAL RELATIONSHIPS THAT HAVE BEEN ESTABLISHED BASED ON CURRENT LAW, AND I DO NOT BELIEVE THAT THOSE SEEKING A CHANGE IN THE LAW HAVE DEVELOPED SUFFICIENT PERSUASIVE EVIDENCE TO RECONFIGURE THESE RELATIONSHIPS. LET ME SAY, HOWEVER, THAT THERE IS ONE AREA IN WHICH I AM VERY INTERESTED THAT MIGHT QUALIFY AS CREATING A NEW "MORAL THE COLORIZATION OF BLACK AND WHITE FILMS. I SIMPLY BELIEVE THAT SUCH COLORIZATION IS WRONG; MAYBE EVEN "MORALLY" WRONG. THIS IS A MATTER OF PERSONAL PREFERENCE, AND IT HAS NO STIRRING LEGAL ANALYSIS TO BACK IT UP. HOWEVER, I WILL BE INVOLVED IN LEGISLATION THAT WOULD GIVE FILM DIRECTORS SOME CONTROL OVER THEIR BLACK AND WHITE FILMS, IF A SUBSEQUENT EMPHASIZE, HOWEVER, THAT I AM NOT INTERESTED IN AFFECTING THE MOTION PICTURE INDUSTRY IN ANY AREA OTHER THAN COLORIZATION. AM NOT INTERESTED IN "PANNING AND SCANNING," OR IN "TIME COMPRESSION," OR IN ANY OTHER MOVIE ALTERING TECHNIQUE OTHER THAN COLORIZATION. AGAIN, MR. CHAIRMAN, I APPRECIATE YOUR HOLDING THESE HEARINGS, AND I LOOK FORWARD TO THE INSIGHTS OF THE WITNESSES. I |