Since the deposit requirements of $407, although mandatory, are not a condition of copyright protection, in The Ad Hoc Working Group also noted that a number -- "acquir[ing], accessible to all, the material expressions of national We support the approach taken by the implementing bills mandatory. Deposit is also a necessary concur - element of registration under $408. As the Ad Hoc Working Group concluded -- and we the deposit requirements of $408 are compatible with Berne, because they are merely ancillary to registration and registration itself under $408 is permissive, not mandatory. We have already discussed above the registration requirements of the Copyright Act, including our concurrese with the conclusion of the Ad Hoc Working Group that, while registration is compatible with Berne, registration as a prerequisite to suit is not. We have tried to outline the reasons why IIA strosely urges Berne adherence, and to indicate those few chete a believe are necessary in the enabling legislation. we are very grateful for the dedicated efforts of Subcommittee members and staff on this most matter. PREPARED STATEMENT OF WALTER BOHRER PRESIDENT, AMUSEMENT AND MUSIC OPERATORS ASSOCIATION We are pleased to present the views of the Amusement and Music Operators Association on the Berne Convention Implementation Act. The AMOA represents over 1000 firms throughout the United States which provide jukeboxes, video games, and other coin-operated entertainment devices used by our citizens in hundreds of thousands of locations throughout our country. In 1889, Louis Glass fitted a coin slot on a wax cylinder Edison machine and placed it in the Palais Royale saloon in San Francisco. Ever since, the jukebox has been one of the most popular means of bringing musical expression to our people, wherever we gather to relax, share our experiences, and take pride in our musical and cultural diversity. Before the radio and far before the age of television, the jukebox became the means by which the musical compositions of our authors and their recorded performances became known to the American people. How many songs and compositions which would otherwise have passed unknown have achieved popularity through the jukebox? This is an important part of our American heritage which must be recognized under U.S. adherence to Berne--if adherence to Berne is what the Congress decides--and certainly under any revisions in U.S. laws which this committee makes to render our laws consistent with Berne. The jukebox industry is already an industry under siege. The number of jukeboxes has declined and is continuing to decline. We are seeing a shift from jukeboxes owned and operated by companies, such as AMOA members, which specialize in this part of the entertainment industry, to jukeboxes owned and operated by the individual establishment. With support from the producers of recorded music, the many performers who understand the importance of the jukebox, and the performing rights societies, we hope to reverse this declining trend. We have carefully followed the debate over the last several years on adherence to the Berne Convention. The Ad Hoc working Group on U.S. Adherence to the Berne Convention--a non-governmental group convened by the U.S. State Department-concluded that U.S. law on the jukebox compulsory license was "probably" incompatible with the Convention with respect to works of foreign origin. U.S. adherence to the Berne Convention could not in any way affect the copyright laws pertaining to musical works of U.S. origin. Specifically, the report of the Ad Hoc Working Group stated that: "The Report's conclusion that certain provisions of U.S. law are The protection required by the Convention's text to works of which that and the following: "We conclude that: (1) with respect to musical works of foreign origin, the jukebox license (2) with respect to musical works of U.S. origin, however, the " Representatives of both ASCAP and BMI were members of the Ad Hoc Working Group which reached this conclusion. Second, a consensus has emerged at hearings in both this Committee and the House Judiciary Committee on the important point that the Berne Convention is not, in the lawyer's phrase, "self-executing." The Berne Convention implicitly recognizes the national and cultural distinctions that make up so much of the world's artistic heritage. The intention is to preserve and protect this heritage, not destroy it. The Berne Convention therefore calls on its adherents to provide copyright protection for the creators of artistic works performed or sold outside the country where they were originally copyrighted. Because the Berne Convention is not "self-executing," the President and the U.S. Congress must decide what, if any, changes in U.S. law are needed to make our laws compatible with Berne; U.S. adherence to the Berne Convention will not automatically result in U.S. law being changed to accord with Berne's provisions. AMOA urges that Congress make its intention to that effect indisputably clear. As this committee knows, until 1976, the performance of music by jukeboxes was exempt from royalties except, of course, for the royalty paid on purchase of the record. This provision of the 1909 Copyright Act recognized that owners of coin-operated record machines already pay significant royalties through their purchase of records. Under this system, jukeboxes flourished and the publicity encouraged sales of recorded music, generating copyright flow to creators and performers. Of In 1976, the Congress ended this exemption. Recognizing the impracticality of setting jukebox fees location by location and the minimal profitability of most jukeboxes, Congress adopted the per-jukebox annual compulsory license. Overseas, during this time, the jukebox tradition never developed. course, the original drafters of the Berne Convention in 1886 had never heard of the jukebox; they were working three years before its invention in San Francisco in 1889. In most Berne Convention countries, jukeboxes are still less well-known than in the United States. This may be because the copyright laws of those countries inadvertently discourage jukeboxes. As a result there are few jukeboxes; the industry is constrained, and the public hears few records in this manner. important means by which the people of the Berne convention countries might hear more music--particularly popular music from the United States--and become more familiar with the works of American artists is underutilized. a pattern we should wish to adopt at home. This is not An Of course, the present compulsory license system is also susceptible to abuse. Under pressure from the performing rights societies, the rates for 1983 were sharply increased. This short-sighted action spurred a new decline in the The new fees are out of number of jukeboxes, particularly operator-owned boxes. line with those for background music and the requirement that a multi-site operator has to pay his registration fees for all of his jukeboxes all at once in the first month of the year is a severe financial hardship. Jukebox operators had no choice but to walk away from newly unprofitable locations. In many cases, they simply sold the jukebox to the owner of the tavern or restaurant--leaving responsibility for maintenance, record replacement, and registration with that individual owner. We were able to negotiate with the performing rights societies a voluntary agreement which provided rebates--in essence, reductions--on the license rate for 1985 and, after months of debate over technicalities, for part of 1986: But with the continuing decline in operator-owned locations, targets set in this agreement for rebates in 1987 have been missed. Unless this agreement is revised, future targets will also be missed. We have a reverse chicken-and-egg situation: as fees go up, individual locations, which are less likely to register, have an economic advantage over larger operators; ownership of jukeboxes therefore shifts to individual locations; registrations decline still further; and the burden falls all the more heavily on the responsible firms which comply. Enforcement is difficult and ownership by responsible businessmen is discouraged. We describe this history to illustrate that the existing compulsory jukebox license, as presently operating and presently enforced--that is, discriminatorily and unequally--is a far from perfect system. However, to discard this system with nothing better in its place, would be the end of the American Jukebox tradition. Similarly, to throw out the compulsory license for works of foreign origin would serve only to end all playing of foreign works on jukeboxes in the U.S. This would hardly be of benefit to foreign composers; and we wonder if such action could lead to retaliation against U.S. composers overseas. S. 1301, as introduced by Mr. Leahy, and S. 1976, introduced by Mr. Hatch, are essentially the same as regards the jukebox compulsory license. Each bill preserves the option of agreement on fees through voluntary negotiations, with the |