[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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