You may recall that on September 16 of last year I My testimony included a reference to a then pending The court in Thailand has now rendered its decision If the United States was a member of the Berne Copyright Convention, such proof would not have to be presented to the Thailand courts, nor would the issue of sufficiency of evidence arise. Further, there Hon. Robert W. Kastenmeier Page 2 would be no uncertainty as to whether a motion picture had been properly published under the Treaty. Finally, the American motion pictures would have been protected in Thailand, which is currently a haven for unscrupulous entities pirating American produced works. It is for reasons such as these that the Motion Picture Association of America and the Disney organization strongly support the adherence by the United States to the Berne Copyright Convention. Verz Peter F. Nolan Vice President-Counsel PFN: Ph cc: Hon. Carlos Moorhead bc: Kathy Zebrowski Morton David Goldberg Mr. KASTENMEIER. The chair will call on the gentleman from California, Mr. Berman. Mr. BERMAN. Thank you, Mr. Chairman. Initially I am just wondering if we are reading all this controversy over treaties and interpretation of treaties and the extent to which, in the case of the ABM Treaty or the INF Treaty, what the Administration says to the Senate, that is part of the record, and the Administration is bound by that. I wonder how that works in a situation like this. This is an alternative. We could be adhering to Berne through treaty negotiations engaged in by the Administration with ratification by the Senate. Instead we are having hearings on this. I am wondering what effect Administration adherence to these treaties becomes part of the record, that at least in the case where the legislation might be ambiguous could constitute a legal portion. I don't know the answer, and I don't know who would have the answer. I don't know who the administration is in this. Could it be the Commissioner of Copyrights? I wonder if one of you could refresh my memory about what article in Berne raises questions about the validity of our compulsory license law and argues for a change in that law. Ms. MESSINGER. I believe it is Article 11. Mr. BERMAN. Authors of dramatic, dramatico-musical works shall enjoy the exclusive rights of authorizing the public performance of their works, including any communication to the public of the performance of their works. The idea of a compulsory license is viewed as an abrogation of the right of the author, is that the logic? Ms. MESSINGER. I believe it is. Then it goes on to other articles or different paragraphs where there were exceptions to the absolute right of broadcasting. Mr. BERMAN. What does that logic mean for a blanket license? Ms. MESSINGER. To the extent you are talking about non-dramatic or the specific world where I live, when it comes to non-broadcast public performance- Mr. BERMAN. It is non-broadcast which speaks to the reason why it would not affect the blanket license for music on radio or television. One of you at least mentioned that you don't see a moral rights problem with existing law in terms of adherence to Berne. I would like to follow through with that. We are told by some directors and screen writers that they view Article 6 of Berne as requiring some changes in U.S. law. I guess they view themselves as at least very largely the creators of motion picture films but not the copyright holders. In terms of music or music recordings, how does your situation differ from them? When I say you, I mean song-writers and publishers. In what way are you not analogous to them? Do you feel current law protects you? Mr. AHROLD. The NCBC looked into this, obviously one of the key areas in adhering to Berne. The investigation essentially said that current laws on the books in the United States are clearly sufficient to provide a level of coverage and moral rights that permits us easily to adhere to Berne without the need for any additional specific legislation. Mr. BERMAN. Who is the copyright holder of a musical work? Mr. AHROLD. The copyright holder would be both the author and the music publisher. Mr. BERMAN. This would be the major reason, in other words, to the extent your music was altered or mutilated in some fashion that was not agreeable to your members, they would have the ability to bring an infringement action or to challenge that mutilation or alteration under existing law? Mr. AHROLD. Correct. I would point out that Berne has been an issue in which we have communicated with our song-writers, composers and music publishers on a number of occasions. Frances Preston has written letters to them. Through our in-house house organ we have written articles about Berne and the implications. We have heard nothing from our authors that would suggest there is any dis-ease with the current situation. Mr. BERMAN. Why do you care whether we say that Berne is not self-executing or we are silent on that subject? In your organizational interest, I can see why you care, but why do you care? Why is that an issue? You have testified that we should make it clear that Berne is not self-executing. I am wondering what the thinking is on that position. Ms. MESSINGER. To be quite frank with you, Congressman, it is an issue that I personally have not spent a lot of time thinking about. So, I will very politely say that I will rest on our statement, and I will be pleased to amplify if you wish. Mr. BERMAN. Even as we ask, I can see one reason, it makes it easier to pass. Ms. MESSINGER. That is right. Mr. AHROLD. I think you have put your finger on it. Mr. KASTENMEIER. You may also be satisfied with the present U.S. law and the changes to be brought about by adherence to Berne. In answer to the previous question, the administration was represented by the Secretary of Commerce, the late Malcolm Baldrige, at the same time the U.S. Trade Representative spoke in strong support of the bill proposed by Mr. Moorhead of California. Obviously, the inference is that they believe, therefore, that a satisfactory declaration of adherence is desirable. The Register of Copyright, I think, does not speak for the Administration, but rather for, in this case, his own agency, his own independent judgment and their own institutional memory and position with respect to copyright, which may not necessarily be the same as the present Administration. Mr. SLAUGHTER. No questions. Mr. KASTENMEIER. The gentleman from Maryland, Mr. Cardin. Mr. CARDIN. Thank you, Mr. Chairman. First I would like to express my appreciation to the panel. It seems like we have a great deal of agreement as it relates to Berne, and I like to see that kind of unanimity. I would like to follow up on Congressman Berman's question on moral rights. If an entity wishes to take part of a recording and use it in a different context for whatever purpose, for perhaps fur ther publication, who would that entity negotiate with in regards to who holds the copyright? Who would it be with? Ms. MESSINGER. If you are talking about using a piece of a recording, the record company, and the copyright owners of the music. Mr. CARDIN. If I want to take part of a recording and use it for a different purpose, I would need to negotiate separately with the person who produced the record, the person who created- Ms. MESSINGER. The record company and the copyright ownerusually the music publisher. That is my understanding. That is generally not my line of work, but that is my understanding. Mr. CARDIN. There is no underlying agreement when a record is produced as to who negotiates on behalf of the future use of that record? Mr. AHROLD. These things are contracts between the creators and copyright holders, in a whole range of instances, something you may regard as minor as an artist who has recorded a piece to be recorded and distributed on vinyl and must usually separately give permission in a revision of the contract or new contract for that to be released in compact disc. So there are a whole series of negotiations that will go on as the work is used in different frameworks. Mr. CARDIN. But if I understand your testimony, there has not been a problem in this industry on the negotiations on the further use of recorded music? Mr. AHROLD. I have spent a number of years in the record side of the music business, and now some time in the performing rights side, and I haven't become aware of situations like that. Mr. CARDIN. Our subcommittee has heard of problems in motion pictures and in other areas of art. You have not experienced similar problems within the recording industry for music? MS. MESSINGER. I have not. As I say, my experience is in the licensing of the nondramatic right to perform and not in licensing the mechanical rights. Mr. KASTENMEIER. The gentleman from California, Mr. Lungren. Mr. LUNGREN. No questions. Mr. KASTENMEIER. Let me just ask the question to you with respect to compulsory licenses. If it were proposed we get rid of compulsory licenses to adhere to Berne, including the mechanical royalty given your industry, what would your position be? We should not get rid of the mechanical royalty, that is the compulsory license, as a basis of mechanical royalty? Mr. AHROLD. Not speaking with my BMI hat on for the moment, trying to anticipate the situation, I think you find music publishers probably ill at ease with that situation. Mr. KASTENMEIER. Are music publishers part of your organization? Mr. AHROLD. Yes, but we are not in a mechanical rights area, we are simply in a performing rights area. We don't speak with them and talk with them frequently about mechanical rights. Mr. KASTENMEIER. If there are no further questions, the committee is very grateful for the appearance of all three of you today. You have been very forthright, helpful, and as I say, agreeable on the proposition that confronts us, and you have given important testimony for us. We may end up with less questions about the |