[Congressional Record Volume 143, Number 152 (Tuesday, November 4, 1997)]
[House]
[Pages H9882-H9883]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page H9882]]
      MAKING TECHNICAL AMENDMENTS TO TITLE 17, UNITED STATES CODE

  Mr. COBLE. Mr. Speaker, I move to suspend the rules and concur in the 
Senate amendments to the bill (H.R. 672) to make technical amendments 
to certain provisions of title 17, United States Code.
  The Clerk read as follows:

       Senate amendments:
       Page 15, after line 8, insert:

     SEC. 11. DISTRIBUTION OF PHONORECORDS.

       Section 303 of title 17, United States Code, is amended--
       (1) by striking ``Copyright'' and inserting ``(a) 
     Copyright''; and
       (2) by inserting at the end the following:
       ``(b) The distribution before January 1, 1978, of a 
     phonorecord shall not for any purpose constitute a 
     publication of the musical work embodied therein.''.
       Page 15, line 9, strike out ``11'' and insert ``12''.
       Page 20, line 7, strike out ``12'' and insert ``13''.
       Page 20, line 16, strike out ``11(b)(1)'' and insert 
     ``12(b)(1)''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
North Carolina [Mr. Coble] and the gentleman from Massachusetts [Mr. 
Frank] each will control 20 minutes.
  The Chair recognizes the gentleman from North Carolina [Mr.  Coble].


                             General Leave

  Mr. COBLE. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  There was no objection.
  Mr. COBLE. Mr. Speaker, I yield myself such time as I may consume. 
H.R. 672 contains much needed technical amendments to the Copyright 
Act. The Copyright Office needs these amendments in order to administer 
the Copyright Act efficiently and effectively. H.R. 672 also clarifies 
that the distribution of a phonorecord before January 1, 1978, did not 
constitute a publication of the musical work embodied therein.

                              {time}  1315

  In 1995 the ninth circuit, in La Cienega versus Z.Z. Top, overturned 
nearly 90 years of Presidential decisions and held that a phonorecord 
did constitute a publication of the musical work embodied in it. As a 
result, thousands of pre-1978 songs are at risk of falling into the 
public domain because the authors and music publishers relied on the 
Copyright Office decisions and did not place a copyright symbol on the 
phonorecords.
  We must protect the copyright holders who justifiable relied upon 
judicial and Copyright Office decisions. The United States cannot 
afford to let its rich musical heritage be lost into the public domain, 
and I urge the Members to vote ``yes'' on H.R. 672.
  Mr. Speaker, I reserve the balance of my time.
  Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. Speaker, my colleague, the chairman, has explained this. This is 
a bill which was broadly supported on both sides. We have some 
controversial issues that will be coming up later dealing with the 
copyright subject matter. This is not one of them.
  What we are doing here is concurring in the first place with the 
Senate over a base bill that we already passed. This is a bill that 
included amendments of a technical nature that we already passed, with 
one or two dissenting votes on a rollcall.
  The Senate added this bill, which we have referred to as La Cienega, 
because that was the name of the case, and what we have here is a 
reading by the courts, and it was not the court's choice of policy, it 
was a reading of the technical language of the statute, the effect of 
which would be to deprive decent, hard-working composers of the right 
to benefit from their compositions, not because of any real dispute 
over who owned what, not because of any policy issue, but because of a 
very narrow technical point. And I am pleased that we were able to 
bring this forward; I am pleased that the other body has gone forward 
with it. I hope we will just vote this through. It is, as I said, 
narrow, technical; it leaves other copyright issues ahead of us.
  I suppose it is a sign that sometimes the law moves a little more 
slowly than technology that we are today passing a bill about 
phonorecords. When the phrase ``phonorecords'' first went into the law 
in 1909, there were not very many because they were too new. Now there 
are not very many because they are too old. So we have in this 
legislative history sort of gone through the life cycle of 
phonorecords.
  I should note that the 1909 act was passed in the same year as the 
birth of our colleague, the gentleman from Illinois, which is 
irrelevant but interesting.
  Mr. FRANK of Massachusetts. Mr. Speaker, I yield 4 minutes to the 
gentleman from Massachusetts and Nashville as a sideline [Mr. 
Delahunt], my colleague on the subcommittee.
  Mr. DELAHUNT. Mr. Speaker, let me first acknowledge the hard work 
that was done on this particular proposal by both the Chair, my friend 
and colleague from North Carolina, and by the ranking member. As they 
both indicated, this bill is mostly about fairness, but there is even a 
trade deficit reform or concern, rather, addressed in this proposal.
  Because of the opinion that was rendered in the case that has been 
referred to, La Cienega, there is now a cloud over the copyright of 
virtually every piece of American music written before 1978. American 
musicians, composers, and publishers now stand to lose some 1 and one-
quarter billion dollars a year, and a significant portion of that 1 and 
one-quarter billion dollars is generated by overseas sales as American 
music is universally acknowledged to be the most popular on the planet. 
In fact, music is one of our most valuable exports and one of the few 
bright spots in our balance of trade.
  We will hear this week in the course of the debate on fast track 
about how our former trade circle with Mexico is now a deficit of some 
$17 billion, and of course our trade deficit with China escalates by 
billions with every new report. Well, we cannot afford to lose the 
income derived from foreign sales of pre-1978 musical works. It is 
painfully clear we are in no position to exacerbate our ballooning 
trade deficit, and unless we pass this bill and reverse the La Cienega 
decision, that is exactly what will happen.
  But this measure is, as both gentlemen indicated, much more than just 
trying to do something about our balance of trade problems. It is about 
being fair, being fair to thousands of hard-working, talented creators 
of American music who, for 86 years, were told by the Government and 
the American judicial system that their work was protected by the 
Copyright Act of 1909.
  They were told all that was necessary to protect their works was to 
place the familiar copyright symbol on the printed musical score, the 
sheet music, if my colleagues will. We have all seen that symbol; it is 
the C in a circle. They were told that it was not necessary to place 
that symbol on the recording of their composition. They relied on the 
interpretation of the Copyright Act of 1909 because that is all the 
Government, through the Copyright Office, said that the Copyright Act 
required.
  Furthermore, Mr. Speaker, there are a number of Federal court 
decisions that confirmed the position of the Copyright Office. So this 
was the law for 86 years, until 1995 when La Cienega arrived on the 
scene. The bill before us today would rectify this injustice, and I 
urge swift passage as any delay places at risk an entire industry and 
threatens to stifle that incredible creative talent of American song 
writers.
  Mr. FRANK of Massachusetts. Mr. Speaker, I yield back the balance of 
my time.
  Mr. COBLE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I will say very briefly I want to thank the ranking 
member, the gentleman from Massachusetts [Mr. Frank], Members on both 
sides of the subcommittee, and the staff. We worked very effectively 
and harmoniously together to craft this very important piece of 
legislation.
  Mr. BERMAN. Mr. Speaker, I rise in strong support of H.R. 672, the 
Copyright Clarification Act, and particularly the Senate amendment 
thereto.
  In 1995, the Ninth Circuit issued a ruling in La Cienaga Music Corp. 
versus ZZ Top, which threatens the validity of copyright for musical 
works created prior to 1978. This decision poses a severe hardship for 
thousands of

[[Page H9883]]

songwriters, many of whom I am proud to count as my constituents. What 
these composers and songwriters did was nothing more than to rely on an 
industry standard of many decades duration, which provides that the 
distribution of a phonorecord does not constitute publication of a 
musical work. This long-time understanding of copyright law has been 
ratified and reaffirmed by the Second Circuit over 20 years ago. 
American songwriters had every reason to consider this issue to be a 
matter of settled law.
  But the LaCienaga decision took that settled law and cast it on its 
head, threatening to thrust into the public domain hundreds of 
thousands of musical works which presently enjoy copyright protection. 
This post-hoc penalty on copyright owners for failure to comply with 
copyright formalities, in reliance upon settled law, struck the members 
of the Subcommittee on Courts and Intellectual Property and, I am happy 
to say, the members of the other body as well, as grossly unfair. We 
concluded that the Ninth Circuit had reached an anomalous and 
insupportable result which in the interest of fundamental fairness 
begged to be corrected.
  That is what the legislation before us would do. I commend this bill 
to my colleagues and urge its passage.
  Mr. BONO. Mr. Speaker, I rise in support of H.R. 672 and urge my 
colleagues to join me. This is a very important measure needed in 
congressional response to a bizarre court decision. This decision also 
threatens to undermine the national economy. It is estimated that 
copyright industries contribute up to $4 billion to our economy and, in 
addition, are one of our most valuable exports.
  The case of La Cienaga Music Co. v. ZZ Top, 53 F. 3d 950 (9th Cir. 
1995), cert. denied, 116 S.Ct. 331 (1995) is unfortunate as it has 
jeopardized the private property rights for thousands of creative 
individuals who live within the jurisdiction of the Federal Court of 
Appeals of the Ninth Circuit. I am advised that this court decision 
makes it impossible for certain affected individual creators to bring 
an infringement action within the Ninth Circuit. Hence, you may have a 
copyright, but you have no available remedies against piracy.
  Much of the credit for today belongs to House Judiciary Committee 
Chairman Hyde and Subcommittee Chairman Coble for their diligence and 
attention to this issue. This is a bipartisan enterprise, and thanks 
for today also rests with Representative Frank. This measure should be 
noncontroversial and speedily adopted by the House. As you know, this 
particular new language was contained in a much more comprehensive bill 
that I have sponsored along with Senate Judiciary Chairman Hatch, H.R. 
1621. My House chairmen are also helping to bring along the rest of 
this badly needed legislation for copyright term extension to the 
floor. That cannot come too soon.
  Mr. COBLE. Mr. Speaker, I have no further requests for time, and I, 
too, yield back the balance of my time.
  The SPEAKER pro tempore [Mr. Packard]. The question is on the motion 
offered by the gentleman from North Carolina [Mr. Coble] that the House 
suspend the rules and concur in the Senate amendments to H.R. 672.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the Senate amendments were 
concurred in.
  A motion to reconsider was laid on the table.

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