The problems of developing effective protection for works in world commerce are daunting, but we believe a national resolve to address these problems is emerging in the Congress, the Executive, and the private sector. Adherence to Berne is not the entire answer, but it is a critical part of the answer. Adherence to Berne finally will realize the long-held objective of bringing the United States into the more mature and more highly-developed international copyright treaty. At the same time, it will facilitate acceptance of the Berne minima as the copyright standards for an intellectual property code in the GATT. Adherence will establish direct United States copyright relations with numerous countries with which we now have none and, in direct discussions abroad, it will facilitate the task of U.S. officials who seek to improve protection of our intellectual property rights by silencing questions as to why we have not yet joined. Adherence will strengthen the influence of WIPO, which is superior to UNESCO in its technical ability to deal with complex and changing international copyright issues, and it will give the world's principal copyright-exporting nation a necessary and rightful place in the Berne councils and deliberations. Our adherence to Berne will fulfill a long-standing goal of United States foreign policy. That fulfillment has long been delayed. Our national interest now makes it imperative. March 24 LAR SESAC Inc. 55 Music Square East, Nashville, TN 37203. Telephone (615) 320-0055 Chairman Robert W. Kastenmeier Subcommittee on Courts, Civil Liberties and the Administration Room 2137 Rayburn House Office Building Dear Chairman Kastenmeier: For SESAC, and personally as an intellectual property lawyer, I am writing to compliment you and your staff for the manner in which you have introduced the Berne Convention Implementation Act of 1987, H.R. 1623. Your Introductory Temarks in the Congressional Record of March 16, 1987, were exceedingly well reasoned and put the issue squarely before the congress. It was particularly gratifying to see your very generous mention of Senator Mathias and his Berne adherence initiative in the other body during the 99th Congress. We would like to be on record as requesting and volunteering--despite the risks of the volunteer--an opportunity to participate in any public discussion through the hearing process with respect to Berne adherence. As we outlined in our prepared statement during hearings on H.P.3521 during the 99th Congress, we are dedicated to the proposition of appropriate copyright protection in a global marketplace. Your very forthright presentation of the moral rights issue is worthy of further notice. In that regard, please find enclosed a copy of a SESAC position paper on Berne published in Billboard last November upon the occasion of the 35th CISAC Congress in Madrid. We believe if the United States adheres to Berne, it should do so with a complete "front door" approach by statutory recognition of moral rights of authors. The United States should be a leader in Berne affairs. That position requires a free standing commitment to the spirit of Berne. We commend your approach and we think it consistent with the intent of the founding fathers. On a more personal note, I am sorry that Deborah Leavy has left the staff. She was very fair and accommodating in all our dealings with her. I understand she has moved to the Senate side and we wish her only the best for the future. Warmest personal regards, W./Robert Thomson, Senior Executive New York 10 Columbus Circle. New York, NY 10019 (212) 586-3450 CISAC A SESAC View Of The Berne Convention Submitted By The Office Of The President, SESAC Inc. n 1987, the celebration begins to mark the 200th anniversary of the promulgation of the Constitution of the United States. No greater document was ever written than the US. Constitution, no greater example of the power of ideas can be found and no better time than the present for the U.S. to be asking itself the necessary ques tions about adherence to the Berne Convention. America prepares to celebrate authorship of the Constitution for it was authorship, the foxing of a set of ideas in a document, that gave birth to the greatest present example of democrat ic government. SESAC is a unique organization from which a viewpoint can be formulated about copyright protection, in general, and the Berne Convention, in particular, as it relates to the present attacks on the scope of that protection. SESAC was founded in 1930 by Paul Heinecke, a then American citizen bom in Halle, Germany, in 1885, just about the time the original draft of the Berne Convention was emerging. Paul Heinecke was the 32nd member of the American Society of Composers, Authors and Publishers (ASCAP), a source of great pride to the then American manager of Breitkopf and Hartel, only one of a prestigious list of publishers for whom Heinecke performed invaluable services as a manager, musicologist and promoter of composers. It was his fascination with, and dedication to, the creative individual that led him to form the Society of European Stage Authors & Composers which is now only a simple corporate name SESAC-to protect, in the US., the many works composed by Sibelius, Ponce and Provost, to name but a few. SESAC was the alterate force in American perform ing rights licensing in the 1930s. With its roots in the great European tradition of the rec ognition of the rights of creators, SESAC has experienced tremendous growth and expansion in recent years in representing works of major American composers, authors and publishers covering every type of music performed in every medium in our contemporary society. SESAC has kept pace with the technological explosion of our times: It is moving into modem new headquarters in New York, has expanded its Nashville based operations, relocating its of fices in California, streamlining its corporate structure and is continuing to achieve greater productivity and service for its affiliates through the most advanced computer systems. SESAC is unique among all performing rights organizations throughout the world. It is privately owned, therefore, able to act on behalf of its writers, composers and publishers in ways which would otherwise be proscribed. Today it represents approximately 800 publishers and more than 1.200 writers and composers. Its repertory is as diverse as the genius of creativity may allow. At first, it repre sented music which was predominately Furopean in orig:n. Later on, it was noted primarily for its activity ir: the rel gious, country, polka and marching band ields. Beginning in 1973 and continuing to the present, it spidly of ancec its representation in the areas of pop, rock, rhythm and blue Limani Lasonal music. Most significantly, it is the one organization that promotes the performance activity of its wn.ers, composers and publishers, charges no membership fee and has an incentive program for its affiliates. It provides its affiliates with a&r consultation, advice on copyrights and placement assistance with publishers and record labels. All of th. has been the natural result of SESAC's more than half-century adherence to the basic course first charted by its founder Paul Heinecke Under the leadership of his daughter AH Prager, SESAC continues to pursue its ongi nal objectives, giving full recognition to the need to adapt to changing conditions As a result. SESAC has broadened its Paul Heinecke, (1885-1972), founder of SESAC Inc., the US's second old est performing rights organization. He founded SESAC in 1930 because, "Music is the common denominator a communications instrument in lemational in scope that knows no language barrier. Man's creative melo dies provide the ideal setting for im proved international understanding." horizons, entered into agreements with other performing rights organizations throughout the world, and been the leader in achieving universal recognition of the principle that music is both an international language and an instru ment of peace. It is fitting, indeed, that SESAC should choose to comment on the Berne Convention. What better subject in remembrance of a man whose lifetime interest in music began as an apprentice learning book binding, printing and music publishing at the world-famous Handelshochschule in Germany? SESAC is the continuation of a hands-across-theseas outreach of that humble apprenticeship. How does the US. join Berne? That basic question prob ably enjoys equal interest inside and outside America. The Berne Convention is, in the first instance, a treaty. The U.S. Constitution controls the procedures by which a treaty is joined, or ratified. The Executive Branch of our government, which encompasses the State Department, examines a treaty and if it is determined to be in the interests of the US to accede-join-to such a treaty, then, the Secretary of State recommends to the President that the advice and consent of the Senate of the US. be sought to gain acces sion to the treaty in question. Bere is a treaty which the State Department believes is not self-executing, that is to say, it requires statutory enactment. Those very basic statements relative to the American process for treaty accession demonstrate immediately that the President, a majority vote in the Senate favoring ratification and further positive statutes are necessary before an instrument of accession can be sent to the World Intellectual Property Organization, the depository for such instruments in the case of the Berne Convention. In order to secure such approval, there must be a considerable force applied to the natural inertia of the status quo. It is interesting to note here that, in 1935, the Senate actual ly approved U.S. adherence to Beme, came to work the next moming and immediately rescinded its approval. The popular media now identify the US. as foremost among nations in the development of a service oriented so ciety and economy. It must follow, therefore, that the US. finds itself in the vanguard of information societies. If one pursues that thought backward through American history, eventually one rer hes the First Amendment to the Constr bition, and then Article I, section VIII of the Constitution ? seif, the setion which, articulates the basis for American stat utory Copyright Law. The ju daposition of the fre? „preci theories of the First Amendment and the exclusive rights provisions of the copyright law is not unlike the debate that has characterized Amenca's flirtations with the Berne Con vention. A noted before, the US Senate voted accession to "Seme once, in 1935. Accession we recommended on at least two other occasions, in 1921 by President Hoover, and ain in 1939 by President Roosevelt. Omnibus sion of e Copyright Law in 1976 in which SESAC was .ctively engaged has certainly removed many of the impedim nts to Beme membership which were deeply embedded a the 1909 statute in place during the last period of rea! mnen bm for Beme membership dunng the 1930s Should the US now do those acts necessary to 2. ome a BILLBOARD NOVEMBER 15 1986 member of the Beme Convention? The answer is unequivo cally, YES! Having put the question and stated the answer, it is ap propriate to make the argument. The US should accede to Beme because it is the right thing to do. The Beme Conven tion is THE international law of intellectual property. It is not reasonable for the people who create an enor mous number of books, motion pictures, periodicals and musical works each year to be denied the advantages of membership in Beme in the intemational marketplace. American copyright history proves that every instance of expansion of the rights of authors produces a proliferation of expanded economic opportunities What of the problem of the moral rights of authors? Bame-in Article 6bis(1)-requires a minimum standard of moral rights protection among member states. It is argued in some quarters, that a collage of American laws, federal and state, provide the "equivalent of moral rights protec tion. It should be stated here that, in the opinion of several commentator, there are serious flaws in the theory regard ing federal issues of pre-emption Among those who still oppose American accession to Beme, there is another argument that copyright is solely a statutory creation of Congress, under powers granted it by the Constitution, and without such a statute there would be no protection of any nature for intellectual property Obviously, there is little room in that thesis for moral ights, by equivalency or in plain language form. We ques ion this argument. Americans hold nothing more dearly than their guarantee of free speech embodied in the First Amendment to the American Constitution. It is reasonable to assert that the ulti nate expression of free speech is the unfettered internation l dissemination of information, for information is free peach. The Universal Declaration of Human Rights, which the JS. fully supports, provides in Article 27 that: (a) Everyone has the right freely to participate in the cul ural life of the community, to enjoy the arts and share in teh cientific advancements and its benefits; and (b) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author These principles are consistent restatements of the auhors of the American Constitution. The founding fathers recognized not only the bass in nat rai law of the concept of moral nights of authors but exressed their recognition in a quite predictable way. Only in Vücle I, Section Vill did the framers grant an opress right 4 property! To promote the Progress of Science and useful Arts, by ecuring for limited ames to Athors and Inventor th xclusive Right to their respective Writings and I 'iscce e Those articles of the Reme Comotion which coming to uthors the minimum standards of protection which are af orded to nationals of member countries set forth, without xception, the proviso: Authors shall enjoy the exclusive right of It is perhaps, idealistic to suggest thet e process of ac ession to Beme should begin with a statuaory declaration the moral right of authors even while giving due recogni on to the tradition of reasonable compromise so firmly sued in our legislative process. However, it is equally realis ic to suggest that the greatest long term benefit to American authors is the ultimate result of this appmach. An ever wid ning circle of economic benefits is the historic proof of the alue of expanded author's rights. It is unnecessary to detail the relatively less important as cts of American copyright law which will require some de ree of amendatory language bere accession can be ac complished If the primary principle of moral nights is given T CISA SGAE: Moving Toward Authors' Association Sociedad General De Autores De España The second half of the 20th century has been witness The new technology truly involved social changes for Authors' associations find themselves faced with a true challenge. Sources of authors' rights are multiplying all the time. It is no longer a question of individual small business men who once utilized intellectual property at their work, available to a limited public and serving only an urban population, with little opportunity or repercussions in the rural community. On the one hand, radio, then television, and satellite transmissions, have placed cultural resources within the reach of the entire population. And on the other hand, there is the fact that all cultures have been brought closer togeth er, creating the opportunity to become aware of all events in the world simultaneously and at the very moment they ac Proof of this situation can be witnessed in the meetings held in recent years by organizations charged with oversee ing intellectual property. The same controversial topics are repeated over and over cable television satellite television, etc. etc. They are difficult subjects to handle, because technological changes are so rapid that laws, no matter how ad vanced they may be, always lag behind Moreover, the new systems are by necessity in the hands of large groups, with the small entrepreneur having virtually disappeared. These large groups undeniable and unques tionably exercise economic and social pressures. Faced with these groups, it is necessary, indeed obligatory, for authors to join together and work out a common strategy so that they will not see their legitimate rights decimated or watered down The challenge we have referre. to has been, and remains, the most critical in Spain Within just a few years, we have come to be a plural-tic and autonomous system, with signif icant advances ir. information pn cessing and technolg; as will hun joed te European Econonic Comurty. It there ne essar, to her new of insettel property. The ministry of culture has now completed a first draft, preliminary project, which deals with the new types of rights. It is also necessary for our authors' association to undergo change in order to keep abreast of the times-and this we are in the process of doing. Incrersing strength is being given to international ties Delegations are being established abroad we must not for get that our cuture has an extremely stongd direct influ reasonable recognition, the remaining demants of confor In the 21st century, it would be deep gratifying to look Nothing equals nor can restrain were irritation the power of ideas that power asserts itself tru ugh the physi cal expression of ideas in the form of invectual property We believe such power to be the fondation of order, an Sociedad General De Autores De Esparia, interior Sociedad General De Autores De España, exterior ence on the American continent. All administrative systems involving repertory, accounting and so on are being convert ed to data processing in order to reduce costs and strears line administrative procedures The Spanish society has initiated a policy of constant cul tural activity. With regard to both the general public and government authorities, we are attempting to deal with what we feel is of the greatest priority and importance, namely making society in general aware of the author. The absence of social evaluation of creation is an evicunt fact. It is nece sary for the audience, when it is welching or listening to a work from the heart, to realize the! behind is stands an Jhor-not ome abstract being, but a livig person This October, in Macid, Spain, the 35th Congress of a SAC, the international authors and composers' assortions group, was staged. I wes attended by all associations worl vide, with represent thas of very element of culture to eryone was in unanimous agreement as to the need to strengthen the relationship between all authors' organsse tions in order to mart the challenge of new technologis with real hopes of success. A strengthened relationship can also increase the activities intended to make public oficial and legislators, who cannot remain neutral, aware that the creator must be protected and that the creator is the one who has actually made all the technological advanos international language, and a language of peace SESAC's commitment to the cause of creators and those who disseminate their works, the cause of copyright and the future growth o the international recogration of intellectual property rights is both idealistic and realistic We have been a leading participant in the US Congressons' hearings in the past to prevent the dismantling of ou copyright system The most constructive direction we can take to achieve o goals is to support adherence to the Bome Convention con sistent with proper recognition of the agles at all involved SESAC accepts a role of leade hip in attaining that real ty so that the United States of America can join in the true spirit of global interrelationship and cooperation in the in lamational copyright community |