Mandatory deposit is a very modest requirement and, once again, a very good bargain for the public. A maximum of two copies, and frequently only one copy, must be deposited for all of the United States. In the view of the Committee, this condition is well within its authority under the Copyright Clause.

4. Notice of copyright

The proposed legislation abolishes mandatory notice of copyright for works first published after the law comes into effect, thereby dispensing with a device that has been statutorily required for nearly two centuries 106 to identify works under copyright after publication. In deference to the utility of notice, however, the legislation includes a new provision designed to stimulate voluntary notice by according evidentiary significance to its use. Current notice requirements are unchanged for works first published before the effective date of the Act. These works will fall into the public domain if published without notice, and registration is not made before or within five years of publication.

To encourage use of notice, H.R. 4262 amends current law-sections 401(d) and 402(d)—to specify that in the case of defendants who have access to copies bearing proper notice of copyright, courts shall not give any weight to a claim of innocent infringement (that is, innocent intent) in mitigation of actual or statutory damages. While innocent intent does not constitute a defense to copyright liability, the courts have taken account of the relative innocence or guilt of the defendant in assessing both actual and statutory damages. 107 As relates to statutory damages, the courts generally have exercised their discretion to award an amount between $250 and $10,000, using the relative innocence of the defendant as a major factor in setting the amount of the award. The intent of new sections 401(d) and 402(d) is to direct the courts not to consider the defendant's claim of innocence if the copyright owner has marked the copies properly with notice of copyright and the defendant has had access to the marked copies.

Newly amended sections 401(d) and 402(d) must be read together, however, in conjunction with the specific provision for remission of all statutory damages in the last sentence of section 504(c)(2). In that situation, the court has no discretion. Current law provides that all statutory damages shall be remitted where certain employees of non-profit educational institutions, libraries, archives, or public broadcasting entities prove that they are innocent infringers. The proposed legislation makes no change to the existing scheme regarding this class of innocent infringers, even if the copies to which they have access bear notice of copyright. H.R. 4262 does change current law with respect to other classes of "innocent infringers," including those covered by the second sentence of section 504(c)(2), where the copies bear notice and the defendant had access to the marked copies.

106 See Act of 1790, 1 Stat. 124 (1790).

107 See Ruskin v. Sunrise Management, Inc., 506 F. Supp. 1284 (D. Colo. 1981); Barry v. Hughes, 103 F.2d 427 (2d Cir. 1939); Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 188 F. Supp. 235 (S.D.N.Y. 1960).

As relates to works consisting in whole or in part of works of the United States Government, the proposed legislation amends section 403 of the Copyright Act to require a statement on the copies identifying the government material. The amendment further confers authority on the Copyright Office to issue regulations detailing the general contents and location of the identifying statement. The legislation prescribes no penalty for failure to comply, leaving the penalty to the judgment of the courts in infringement actions. At a minimum, it is intended that failure to comply with the regulations issued pursuant to section 403, if not cured by appropriate disclosure at the time of copyright registration, will constitute fraud on the Copyright Office. Even if disclosure is made at the time of registration, a reviewing court may consider that the copyright claimant has "unclean hands" unless the publicly distributed copies of the work bear an appropriate identifying statement, in accordance with the regulations to be issued by the Copyright Office. Section 404 of current law governs the use of notice in collective works. Since notice is no longer mandatory, H.R. 4262 merely clarifies the requirements necessary to invoke the "evidentiary weight of notice" provisions of new sections 401(d) and 402(d). The provisions of section 404 with respect to works first published before the effective date of the Act are maintained, since current law clearly applies to works first published before the Act goes into effect.

5. Renewal Registration

Current section 304(a) of the Copyright Act requires registration with the Copyright Office during the last year of the first term of copyright in order to enjoy the second term of copyright in works under copyright before January 1, 1978 (the effective date of the Copyright Revision Act of 1976). When Congress engaged in the historic revision of the copyright laws in 1976, the subjects of duration of copyright and the renewal of copyright were thoroughly examined and debated. Congress decided to establish a new system of duration of copyright for works first copyrighted under the revised law, but retained the renewal provision for pre-existing copyrights. The House Committee on the Judiciary explained in its Report that the renewal system would be phased out by the year 2005 rather than eliminated immediately because a "great many of the present expectancies in these cases are the subject of existing contracts, and it would be unfair and immensely confusing to cut off or alter these interests." 108

In revisiting this issue more than a decade later, the Committee reaches the same conclusion: it would be unfair and immensely confusing to attempt to cut off renewal expectancies. Moreover, constitutional questions could be raised about deprivation of property without due process of law or unlawful impairment of existing contracts. So, H.R. 4262 elects to take a safer course and lets the renewal provisions terminate as previously scheduled in the year 2005.

108 H.R. REP. No. 94-1476, 94th Cong., 2d Sess. 139 (1984).

D. JUKEBOX COMPULSORY LICENSE

The Berne Convention in Article 11(1) requires that authors of dramatic, dramatico-musical, and musical works shall enjoy the exclusive rights of authorizing: (1) the public performance by any means or process; and (2) the communication to the public of performance of their works. This text was adopted at Stockholm in 1967 and is included in the 1971 Paris Act. Before 1967, Article 13, which allows a compulsory license for the making of records of musical works, could have been interpreted to permit a compulsory license for nonbroadcast performances of recorded music. Under the 1971 Paris Act, the scope of the Article 13 compulsory license is confined to the act of recording, that is, reproductions. Article 11(1) therefore governs the obligations with respect to performance of recorded works, and apparently does not permit compulsory licensing of non-broadcast performances.

Current American copyright law-section 116 of title 17, United States Code--allows the compulsory licensing of the performance of nondramatic musical works by playing the record embodying the music on a coin-operated phonorecord (jukebox). The Committee heard from experts, a vast majority of whom agreed that the existing jukebox compulsory license is incompatible with Berne. 109 The Committee considered but rejected the solution of complete elimination of the jukebox compulsory license. Instead, the Committee fashioned a new section 116A that encourages the representatives of authors and jukebox operators to negotiate licenses or submit to arbitration.110 If negotiations fail, the compulsory license provisions in effect on the day before the amendment takes effect-that is, section 116-would operate.

As evidence that new section 116A is compatible with Berne, the Committee looked to the law in effect in other Berne countries and found systems in place for government review or regulation of rates and licensing terms offered by performing rights societies.111 In 1985, with congressional participation by Chairman Kastenmeier and Senator Mathias, the three performing rights societies (ASCAP, BMI and SESAC) and the trade association representing jukebox operators (AMOA) reached a voluntary agreement under which they cooperate to facilitate compliance with the jukebox compulsory license; the performing rights societies in turn agreed to give rebates of license fees, depending on the level of compli

109 See Ad Hoc Working Group Final Report, supra note 5 at 533; statements of Gloria Messinger for ASCAP, Robbin Ahrold for BMI, Inc.; House Hearings, supra note 9, February 9, 1988; statement of Paul Goldstein, Professor, Stanford University School of Law, but see statement of Dr. Arpad Bogsch, Senate Hearings, supra note 6, at 10.

110 The House hearing record is largely devoid of arguments that the Berne Convention necessitates the total elimination of the compulsory license. In fact, the American performing rights societies themselves argued that the minimalist approach contained in the proposed legislation satisfies Berne. As observed by Gloria Messinger (on behalf of ASCAP), "America's national interest in joining Berne outweighs the narrow interest of any party, whether creator or user. That interest demands every reasonable accommodation between competing groups." In a similar vein, a representative of BMI (Robbin Ahrold) stated: "Given the long history of attempts by the jukebox industry and the performing rights organizations to forge a mutually-acceptable solution to licensing, the outright repeal of section 116, while it may be desirable, is just not practicable. We believe, therefore, that the approach taken by the Chairman's bill is the most feasible way that the problem can be addressed and still accommodate the concerns of both parties." See House Hearings, supra note 9, February 9, 1988.

111 See, e.g., the laws of Canada, West Germany, and the United Kingdom.

ance.112 The Committee believes that this experience in voluntary cooperation augurs well for the future. The Committee need not take a position on the merits or efficacy of the 1985 agreement, other than noting with satisfaction the progress that the various parties have made in working together to solve their problems.

H.R. 4262 proceeds on the presumption that the parties affected by the jukebox license will, as they have done in the past, negotiate in good faith and work diligently to reach voluntary licensing agreements that may or may not resemble the 1984 settlement.

As a last resort, if voluntary negotiations fail pursuant to new section 116A, the Copyright Royalty Tribunal is empowered to conduct a proceeding one year after the effective date of the amended law to review the number of songs licensed voluntarily during that period as compared with the number of songs performed under the compulsory license in the last year that current section 116 was in effect. If the Tribunal finds and certifies that the number of songs voluntarily licensed is substantially smaller than the number previously covered by the old compulsory license, then the Tribunal will publish a notice that section 116 is available and compulsory licenses can be obtained by complying with section 116. H.R. 4262 provides, however, that any voluntary licenses will supercede nonvoluntary licenses.

In order to make the certification, the Tribunal will presumably either initiate statistical surveys or accept, in whole or in part, evidence of such surveys offered by the interested parties relating to the number of songs likely performed on jukeboxes in the last year of section 116. With respect to the number of songs licensed on a voluntary basis, the Tribunal will most likely accept the estimates of the interested parties it finds most credible. Since the overwhelming bulk of the music is licensed by two societies (ASCAP and BMI), if a voluntary agreement is made involving either or both societies or the larger of the two in terms of repertoire, the Tribunal can very likely find that the number of voluntary agreement songs is not substantially smaller than nonvoluntary agreement songs.

Except when the Tribunal certifies that the compulsory license is available, the Tribunal has no authority to adjust the statutory royalty rates. If the compulsory license is certified to be available, then the normal schedule for review of rates established by section 804(a)(2)(C) applies, that is, in 1990 and every tenth year. If no petition for rate review is filed in 1990 because of the negotiations pursuant to section 116A but the compulsory license becomes available thereafter, then a petition may be filed in the year that section 116 becomes effective and in each subsequent tenth year.

The Committee believes that this minimalist approach to be in conformity with the dictates of the Berne Convention. As a general principle, Berne stands for the proposition that copyright law should preserve and protect national and cultural distinctions that make up the world's cultural heritage. In the United States, for the past one hundred years, the jukebox has been a very popular

112 For more information on the negotiated agreement, see statements of Wally Bohrer for AMOA, Gloria Messinger for ASCAP, and Robbin Ahrold for BMI, Inc., House Hearings, supra note 9, February 9, 1988.

means of bringing musical expression to the American people. The jukebox, being an important part of our cultural heritage, need not conflict with either the cultural goals of the Berne Convention or artistic expressions of American songwriters.

E. ARCHITECTURAL WORKS

Article 2(1) of the Berne Convention requires protection for three categories of works related to architecture:

(a) "works of . . . architecture";

(b) "illustrations

... architecture; and

..

plans [and] sketches. . . relative to

(c) "three dimensional works relative to ... architecture". 113 "Works of architecture" have been protected in some form under Berne since 1908, with the concept of three-dimensional works being added in 1967.114

Under the 1976 Copyright Act, a work of architecture is generally embodied in a "useful article." As such, it may be protected as a pictorial, graphic, and sculptural work" only if, and only to the extent that, its design "incorporates pictorial, graphic, or sculptural features" that can be identified separately from, and are capable of existing independently of, utilitarian aspects of the useful article."115

Thus, while adornments or embellishments to a building may be eligible for U.S. copyright protection, the function or aspects of buildings are not. 116

The 1976 Act makes clear that architectural plans and drawings are protected by copyright, since, in this regard, they are no different from other drawings. 117

While there is substantial debate about whether the copyright laws prevent the use by someone other than the copyright holder of a copyrighted plan in the construction of a building, there is no doubt that the unauthorized copying of a plan or drawing of an architectural nature is considered a copyright infringement.118

H.R. 1623, the original bill introduced by Representative Kastenmeier, followed the advice of the Copyright Office, the Administration, and the Ad Hoc Working Group. It proposed to amend the Copyright Act to explicitly provide for protection of buildings and structures, albeit with extensive exceptions and limitations. 119 Unfortunately none of the witnesses who testified in the early hearings nor any of the experts consulted by the Subcommittee at the WIPO Roundtable Discussions, directly addressed issue of architectural works.

113 Berne Convention Art. 2(1).

114 Ad Hoc Working Group Final Report supra note 5 at 605.

115 17 U.S.C. § 101; 17 U.S.C. § 113 (b) and (c) provides further limitations.

116 See Ad Hoc Working Group Final Report, supra note 5 at 608.

117 H. REP. No. 94-1476 at 55 (1976); M. ÑIMMER, NIMMER ON COPYRIGHT, § 2.08[D] (1986). 118 NIMMER, id.; See also Demetriades v. Kaufman, 88 Civ. 0848 (S.D.N.Y. March 8, 1988) (injunction issued against further copying of architectural plans but not against the construction of the building depicted in the plans). See generally Shipley, Copyright Protection for Architectural Works, 37 S.CAR. L.REV. 393 (1986); Note, Innovation and Imitation: Artistic Advance and the Legal Protection of Architectual Works, 70 CORN. L. REV. 81 (1981); Comment, The Protection of Architectural Plans as Intellectual Property, 6 Loy. L.A. L. REV. 97 (1973).

119 H.R. 1623 §§ 5 and 9, 100th Cong., 1st Sess. (1987).