[Congressional Record: October 12, 1998 (Senate)]
[Page S12434]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr12oc98-195]


                         COPYRIGHT LEGISLATION

<bullet> Mr. THOMPSON. Mr. President, in the closing days of the 105th
Congress, the Senate passed two pieces of copyright legislation that
will have enormous impact. As Charles Dickens might say, it is the best
of times and the worst of times for those who create the property that
is protected by copyright.
  First, the Senate passed S. 505, which extended the terms of
copyrights by 20 years, to life plus 70 years from life plus fifty
years. For a number of years, our trading partners and competitors have
protected their copyrights for the life of the author plus 70 years.
Under the rule of the shorter term, these nations protected American
copyrights for only the life of the author plus 50 years. The United
States is the world leader in copyright, and should afford the greatest
protection for copyrighted works of any nation, both to encourage
creativity that benefits all, and for our own national interest with
respect to the balance of trade.
  The extension of copyright terms will be of enormous benefit to
songwriters and others who create copyrighted works. It will benefit
the public through enhanced creative activity, and the further public
performance of already existing works to be enjoyed by future
generations.
  But S. 505 contained a bitter pill to swallow, the so-called Fairness
in Music Licensing Legislation. These provisions are terribly unfair to
those who create music. When a person profits from a public performance
of music, he or she should fairly compensate the creator of that music
through royalty payments. This is an elemental necessity for the
creation of music. To paraphrase Justice Holmes, if music did not pay,
no one would write it. The average songwriter receives less than $5,000
per year in royalties, and the average restaurateur pays only a few
hundred dollars a year to play music in his establishment, about 1% of
revenues. At the same time, the restaurateur uses music to create an
ambience that will cause people to come to his establishment, and to
spend more time and money there than they would without the music.
  But the restaurateurs, retailers, and others wanted something for
nothing. The songwriters were even willing to help out the mom and pop
restaurants by exempting broadcast performances of their music in about
two-thirds of the Nation's restaurants. But that was not good enough
for the music users, who had the House pass outrageous legislation that
amounted almost to stealing from the songwriters. A House that purports
to defend property rights passed the most anti-property rights
legislation in many years.
  We worked in the Senate to improve that House-passed bill. We
preserved vicarious liability, a necessity to ensure that royalties are
paid. We prevented retailers and restaurants from challenging their
rates in any city they chose, which would have been an unacceptable
burden on the ability of songwriters to protect their rights. We
eliminated provisions that would have enabled department stores to use
music for free. In addition, we increased enforcement of payments
because a judge can award double the licensing fees for up to three
years instead of current law's limits of statutory damages.
  But I still have major concerns about S. 505, even with these
changes. Songwriters' property taken from them and used by others
without payment. The exemptions are too generous, as they go well
beyond the interest of small establishments. In fact, the vast majority
of songwriters are smaller business people than many of the
establishments that will be exempted from paying royalties by this
bill.
  At the same time, this bill runs counter to our international treaty
obligations under the Berne Convention and the TRIPS Agreement. Those
treaties benefit Americans more than any other country. We have the
greatest interest in ensuring compliance by all signatory countries
with these treaties. Yet we have passed a bill that is inconsistent
with these treaty obligations. What will happen when foreign countries
do not live up to their promises to protect intellectual property,
citing our own example of this legislation back to us? Songwriters may
not be the only losers; copyright protects computer software and other
non-performing arts creative material. Some of the companies who may be
hurt by international retaliation may be member companies of
organizations that insisted on the music licensing provisions.
  Only time will tell if the World Trade Organization will find that
this bill violates international treaties that are binding on this
country. But there is a good chance that these unfair music licensing
provisions will not be able to stand.
  It became clear in the final days of this Congressional session that
in order to obtain copyright term extension and the WIPO implementing
legislation, unfair music licensing legislation would have to be
included. Although the music licensing provisions are considerably
better than those contained in the House-passed bill, they are still
unfair. However, the 20-year extension in copyright terms is a
significant benefit to songwriters, and the WIPO Treaty implementing
legislation will assist creative artists in the digital age, as well as
enhance worldwide protection of copyrighted materials. In implementing
this treaty, it is unfortunate that my colleagues have passed
legislation that violates our existing treaty obligations.
  Mr. President, there are times when the bad has to be taken with the
good. The music licensing provisions are indefensible, but a necessary
cost of obtaining very important legislation for the benefit of
creative artists. It should not have been this way. I am confident that
the music licensing issue is not yet over, and I regret the likely
embarrassment that will ultimately fall upon this body when the
language it has passed is ruled to violate our treaty
obligations.<bullet>

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