compulsory license to take effect if these negotiations fail. It is now clear that these provisions would make U.S. law compatible with Berne without throwing out the compulsory license or closing off the possibility of a better system in the future. Dr. Arpad Bogsch, director general of the World Intellectual Property Organization (which administers the Berne Convention), in material submitted for the record of hearings in the Senate Judiciary Committee in 1985, confirmed that some Berne Convention countries have a de facto compulsory license agreed that provisions similar to those in this pending legislation would be compatible with Berne. and We therefore support this legislation, with one request for modification. In the case that negotiations fail or any voluntary agreement later expires, both S. 1301 and S. 1971 would simply turn the problem over to the Copyright Tribunal without qualification or instruction. The companion House legislation, H.R. 1623, instead directs the Copyright Tribunal, in determining if a return to the copyright owner is fair, to give "substantial deference" to "the rates in effect on the day before the effective date of the Berne Convention Implementation Act...and the rates contained in any license negotiated under Section 116 (b)." We believe this guidance to the Copyright Tribunal is needed and proper. Contrary to some statements, this provision would not preclude the Copyright Tribunal from making reasonable adjustments in light of changing circumstances. The Tribunal could still consider such factors as the declining number of jukeboxes, the increasing costs of jukebox operation and maintenance, or the return to copyright owners after expenses of the copyright societies. However, it would indicate to the Tribunal that the Congress intends that history not be discarded: that, as the language clearly states, the Tribunal would give "substantial deference" to rates set or agreements made in the past. In conclusion, Mr. Chairman, we believe it is essential that both this legislation and the ratification of the Berne Convention which may follow make clear the view of this Committee and the Congress that Berne not be self-executing. Adherence to Berne neither changes U.S. law nor rules out further refinements in U.S. copyright law in the future. Until or unless the Congress should choose to make further changes in law, the existing compulsory license would be retained under S. 1301, taking effect if we and the copyright societies are unable voluntarily to agree on better and more equitable systems. Nor, by the same coin, would U.S. adherence to Berne prevent the Congress from considering future revisions to the existing compulsory license. S. 1301, in conclusion, is a carefully-crafted bill. It preserves the option that copyright owners and jukebox operators may reach voluntary agreements; preserves the compulsory license as the fall-back to voluntary agreements until something better is put in its place; and leaves open the options of this Committee to review the compulsory license, the fees paid under it, and the means of enforcement, in the future. With a better environment and improved cooperation from the performing rights societies, we believe that the jukebox industry can continue to bring the best of both American and foreign music to our people- publicizing and extending the hearing, the popularity, and the sales of recorded compositions. STATEMENT OF JACK GOLODNER, DIRECTOR DEPARTMENT FOR PROFESSIONAL EMPLOYEES, AFL-CIO FOR THE SUBCOMMITTEE ON PATENTS, COPYRIGHTS, AND TRADEMARKS OF THE SENATE COMMITTEE ON THE JUDICIARY ON THE BERNE CONVENTION IMPLEMENTATION ACT OF 1987 (S. 1301, S. 1971) MARCH 16, 1988 I am Jack Golodner, Director of the Department for Professional Employees (DPE), AFL-CIO. This statement represents the position of the AFL-CIO as well as that of the DPE. While the AFL-CIO needs no introduction to the Subcommittee, perhaps a few words of background about the DPE might be useful. The Department is a constitutional component of the AFL-CIO and is comprised of 28 national and international AFL-CIO unions which represent about three million professional workers, including members of every major profession from actor to zoologist. Many of these workers are employed in our copyright based industries, ie. motion pictures, broadcasting, recording, etc., and therefore have a direct interest in legislation to implement the Berne Convention for the Protection of Literary and Artistic Works as revised at Paris on July 24, 1971 (Berne Convention) and ratification of that treaty. - Fostering creativity and productivity among American working people has been an object of the AFL-CIO since its inception. We have pursued this goal in a variety of ways by seeking to secure quality work places, fairness on the job and appropriate compensation and recognition. With regard to the latter, copyright law plays a major role. (See attached statement of the AFL-CIO Executive Council, Strengthening Copyright Protection). We believe that support for U.S. adherence to the Berne Convention is a logical extension of our historic position and is much needed in order to protect our creators and copyright owners in the international markets where their creations are marketed and used. As is well known to the Subcommittee, the U.S. is the world's largest producer of copyrighted materials. Our copyright and information related industries earn a trade surplus each year in excess of $1 billion and rank second in the nation in terms of their - 2 contribution to the gross national product. They employ hundreds of thousands of American workers many of whom are members of our affiliated unions. Yet the situation could be far better than it is, if the well documented world-wide piracy of American sound and video recordings, computer software, and printed materials could be suppressed. And that is one of the promises that U.S. membership in the Berne Convention holds out. Although Berne membership would not completely resolve the problem of worldwide piracy of American copyrighted materials it would be a significant step in that direction. Through Berne membership, American creators and copyright owners would receive the highest level of copyright protection available under any multilateral treaty in which the United States is eligible to participate in those countries which are the largest users and consumers of American copyrighted works. It would also establish copyright relations for the United States with twenty-four nations with which they presently do not exist. In addition to these more immediate and tangible benefits, Berne membership would also allow the United States to assume a lead role in international policy-making with regard to copyright as is befitting the world's preeminent producer of copyrighted materials. Accordingly, Mr. Chairman, we believe that the United States should ratify and become a member of the Berne Convention. However, we must take exception to the bills (S. 1301 and S. 1971) before you that would implement U.S. adherence to Berne. We do not object to any provision in either bill, but rather to what is omitted from both, namely provisions that would carry out the mandate of section 6 bis (1) of the Convention which provides ними |