[Congressional Record Volume 144, Number 35 (Wednesday, March 25, 1998)]
[House]
[Pages H1456-H1483]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      COPYRIGHT TERM EXTENSION ACT

  Mr. DIAZ-BALART. Mr. Speaker, by direction of the Committee on Rules, 
I call up House Resolution 390 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 390

       Resolved, That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 1(b) of rule 
     XXIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 2589) to amend the provisions of title 17, 
     United States Code, with respect to the duration of 
     copyright, and for other purposes. The first reading of the 
     bill shall be dispensed with. General debate shall be 
     confined to the bill and shall not exceed one hour equally 
     divided and controlled by the chairman and ranking minority 
     member of the Committee on the Judiciary. After general 
     debate the bill shall be considered for amendment under the 
     five-minute rule. It shall be in order to consider as an 
     original bill for the purpose of amendment under the five-
     minute rule the amendment in the nature of a substitute 
     recommended by the Committee on the Judiciary now printed in 
     the bill. The committee amendment in the nature of a 
     substitute shall be considered as read. No amendment to the 
     committee amendment in the nature of a substitute shall be in 
     order unless printed in the portion of the Congressional 
     Record designated for that purpose in clause 6 of rule XXIII. 
     Points of order against the amendment printed in the 
     Congressional Record and numbered 1 pursuant to clause 6 of 
     rule XXIII for failure to comply with clause 7 of rule XVI 
     are waived. The chairman of the Committee of the Whole may: 
     (1) postpone until a time during further consideration in the 
     Committee of the Whole a request for a recorded vote on any 
     amendment; and (2) reduce to five minutes the minimum time 
     for electronic voting on any postponed question that follows 
     another electronic vote without intervening business, 
     provided that the minimum time for electronic voting on the 
     first of any series of questions shall be 15 minutes. At the 
     conclusion of consideration of the bill for amendment the 
     Committee shall rise and report the bill to the House with 
     such amendments as may have been adopted. Any Member may 
     demand a separate vote in the House on any amendment adopted 
     in the Committee of the Whole to the bill or to the committee 
     amendment in the nature of a substitute. The previous 
     question shall be considered as ordered on the bill and 
     amendments thereto to final passage without intervening 
     motion except one motion to recommit with or without 
     instructions.

  The SPEAKER pro tempore (Mr. Shimkus). The gentleman from Florida 
(Mr. Diaz-Balart) is recognized for 1 hour.
  Mr. DIAZ-BALART. Mr. Speaker, for the purpose of debate only, I yield 
the customary 30 minutes to the gentleman from Texas (Mr. Frost), 
pending which I yield myself such time as I may consume. During 
consideration of this resolution, all time yielded is for the purpose 
of debate only.
  Mr. Speaker, House Resolution 390 is a modified open rule providing 
for the consideration of H.R. 2589, the Copyright Term Extension Act. 
The purpose of this legislation is to extend the term of copyright 
protection in all copyrighted works, that have not fallen into the 
public domain, by 20 years.
  House Resolution 390 provides for 1 hour of general debate to be 
equally divided and controlled by the chairman and ranking minority 
member of the Committee on the Judiciary.
  The rule makes in order the amendment in the nature of a substitute 
recommended by the Committee on the Judiciary as an original bill for 
the purpose of amendment and provides that it will be considered as 
read.
  The rule further provides that first-degree amendments must be 
preprinted in the Congressional Record. This will facilitate their 
prompt consideration. Last Wednesday, March 18, the chairman of the 
Committee on Rules announced on the House floor that the rule for the 
copyright extension bill may require the preprinting of amendments. I 
believe that this was ample notice to Members who are interested in 
offering amendments on this measure.
  In 1995, the European Union extended the copyright term for all of 
its member states by 20 years, from life of the author plus 50 years to 
life of the author plus 70 years. Therefore, this is not a new issue. 
As the leader in the export of intellectual property, I think it is 
important that the United States extend the copyright term as well.
  The rule waives points of order against the amendment by the 
gentleman from Wisconsin (Mr. Sensenbrenner) printed in the 
Congressional Record and numbered 1 for failure to comply with clause 7 
of rule XVI which prohibits nongermane amendments. The Sensenbrenner 
amendment involves an issue that has some degree of controversy, 
dealing with songwriters, restaurants and small businesses. However, to 
be fair to those with other viewpoints on the issue, it will be 
possible for Members who wish to amend the Sensenbrenner amendment to 
be able to do so without any special protections.
  In addition, the rule provides for the Chairman of the Committee of 
the Whole to postpone votes during the consideration of the bill and to 
reduce votes to 5 minutes on a postponed question if the vote follows a 
15-minute vote.
  Finally, Mr. Speaker, the rule provides for one motion to recommit, 
with or without instructions.
  Mr. Speaker, I believe House Resolution 390 is fair rule. It is a 
modified open rule for the consideration of H.R. 2589, the Copyright 
Term Extension Act. I believe the underlying bill is very important. As 
for the music issue, I think Members will have the opportunity to vote 
for the amendment by the gentleman from Wisconsin or alternatives 
proposed by other Members. I think this is a judicious way to handle 
the issue. I urge my colleagues to support this rule.
  I commend the gentleman from Illinois (Mr. Hyde) and the gentleman 
from North Carolina (Mr. Coble) for their hard work on H.R. 2589 and 
would urge my colleagues to support both this open rule and the 
underlying bill.
  In conclusion, Mr. Speaker, House Resolution 390 is a fair rule. I 
urge its adoption.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1045

  Mr. FROST. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in reluctant support of this rule, but I do 
support H.R. 2589, the Copyright Term Extension Act. H.R. 2589 seeks to 
provide important protections for American copyright holders in the 
world marketplace. This legislation will extend the term of

[[Page H1457]]

copyright protection for works created after January 1, 1978, for life 
of the author plus 70 years after death, bringing this protection into 
line with the standard in the European Union. This is an especially 
important protection for U.S. intellectual property since this parity 
will ensure that American works will receive copyright protection equal 
to that received in European countries for European-produced 
intellectual property. Because European countries are huge markets for 
U.S. intellectual property, this protection is worth hundreds of 
millions of dollars for works produced by Americans.
  Mr. Speaker, this rule allows only for the consideration of any 
germane amendments to the committee substitute which has been printed 
in the Congressional Record. There is no reason for the preprinting 
requirement since the underlying bill is relatively free of 
controversy, and it is for that reason that I only reluctantly support 
this rule. However, the rule also provides for consideration of a 
nongermane amendment by the gentleman from Wisconsin (Mr. 
Sensenbrenner) by waiving the provisions of clause 5, rule XVI against 
it. Further, the rule does allow for the consideration of germane 
amendments to the Sensenbrenner amendment, and it is anticipated that 
the gentleman from Florida (Mr. McCollum) and the gentleman from 
Michigan (Mr. Conyers) will offer a substitute to the Sensenbrenner 
amendment. Because these amendments relate to music licensing and not 
directly to the issue of copyright protection extension, the 
germaneness waiver is necessary.
  In order that the House may proceed to consider this important 
legislation, Members should support this rule. In the future, however, 
I would hope that open rules might be truly open and not bound by 
unnecessary preprinting requirements.
  Mr. Speaker, I reserve the balance of my time.
  Mr. DIAZ-BALART. Mr. Speaker, I yield 2 minutes to the distinguished 
gentleman from Wisconsin (Mr. Sensenbrenner).
  Mr. SENSENBRENNER. Mr. Speaker, I thank the gentleman from Florida 
for giving me this 2 minutes, and also thank the chairman of the 
Committee on Rules, the gentleman from New York (Mr. Solomon) for 
providing this open rule containing a waiver which may be necessary to 
protect a process supported by the chairman, the gentleman from 
Illinois (Mr. Hyde), and subcommittee chairman, the gentleman from 
North Carolina (Mr. Coble), and the leadership of the House. The rule 
guarantees this body the opportunity to provide balance to the 
underlying bill, the Copyright Term Extension Act, with a modest 
package of relief for America's small business.
  The supporters of fairness in music licensing, which is the subject 
of my amendment, believe it complements the Copyright Term Extension 
Act quite fittingly. The underlying bill extends the term of copyright 
for an additional 20 years, thereby permitting copyright owners to 
continue to commercially exploit works that are beginning to fall into 
the public domain.
  My amendment suggests the need to balance this generous expansion of 
rights, which the gentleman from Texas (Mr. Frost) estimates to be 
worth hundreds of millions of dollars for copyright owners, with a set 
of reforms designed to level the playing field for the users of 
intellectual property.
  Again, I thank the Committee on Rules for offering this open rule 
enabling a fair debate and an up-or-down vote on my amendment.
  Mr. FROST. Mr. Speaker, I yield 4 minutes to the gentleman from Texas 
(Mr. Doggett).
  Mr. DOGGETT. Mr. Speaker, the Copyright Term Extension Act makes an 
important correction in our existing law to ensure that the 
intellectual property of artists across this land is protected, that it 
is not raided and misappropriated by people around the world to their 
benefit, without compensation to the original owner.
  It is therefore particularly contradictory and ironic that this rule 
will attach and permit attachment to this protection of intellectual 
property, what many people have come to call the Music Theft Act, a 
measure that is a separate freestanding piece of legislation that has 
nothing to do with copyright extension, but is being attached to the 
most convenient vehicle to steal the intellectual property of thousands 
of small businesspeople who are song writers in this land.
  This Music Theft Act is based on a very simple premise: If one cannot 
get someone else's property for free, then pass a law to allow them to 
steal it from them. It is particularly ironic that this Music Theft Act 
is being considered here on the floor of Congress at a time when we 
have just completed the great South By Southwest Music Festival that 
pulled together hundreds, indeed thousands of people interested in the 
music industry and what it contributes to the enjoyment of life here in 
America and how it spreads our American culture literally around the 
globe.
  In my home city, the city of Austin, Texas, where that South By 
Southwest Music Festival pulled people from around the world to enjoy 
and build on the success of our music capital, our claim to be the 
``loud music capital of the world,'' we have hundreds of songwriters 
who are small businesspeople who rely on the income that they earn from 
their songwriting to support themselves. They work hard creating a 
product that all of us enjoy, and when someone else uses or enjoys 
their product, they expect to make a profit just like any other 
business. When Joe Ely or Shaun Colvin or Tish Hinojosa go downtown to 
play at a club, they do not do it for free. That is how they earn their 
living. And the same thing ought to apply when music is being broadcast 
by one of those artists in a restaurant. If a business owner is using a 
song writer's property to help that business, then it ought to 
compensate the person that provides, that provided the benefit to them, 
the songwriter who is responsible for creating the work.
  Let us be real clear about what we are discussing. The songwriter's 
property is just that; it is property every bit as real as a trade 
name, every bit as real as the script for a movie or for a new book, 
every bit as real as a new phone system or a copying machine. Music is 
the property of the songwriter who created it. And when music helps 
attract people to a restaurant, and that is what this is all about is 
the desire of the National Restaurant Association to take someone 
else's property for free, they may not offer any free lunch around 
America but they are willing to take for free the property of someone 
else to help them promote their profits in the restaurants.
  Supreme Court Justice Oliver Wendell Holmes had it right when he 
wrote many years ago ``It is true that music is not the sole object, 
but neither is the food. . . . The object is a repast in surroundings 
that give a luxurious pleasure not to be had from eating a silent meal. 
If music did not pay, it would be given up . . . Whether it pays or 
not, the purpose of employing it,'' the music, ``is profit, and that is 
enough. ``
  And that is what is at stake here today, the right of thousands of 
small businesspeople who are creative, who write music, to earn an 
income from doing so.
  Mr. DIAZ-BALART. Mr. Speaker, I yield 2 minutes to a distinguished 
gentleman from Florida (Mr. Scarborough).
  Mr. SCARBOROUGH. Mr. Speaker, I thank the gentleman for yielding me 
the time, and it may surprise and scare the gentleman from Texas (Mr. 
Doggett) but I actually agree with him on this issue and he is shocked. 
I agree with him on several issues: on South By Southwest; it is an 
incredible festival. But more importantly, I agree about what he is 
talking about are property rights, and I think it is very interesting. 
It is usually us Republicans hurling charges at Democrats, saying that 
they do not respect property rights enough and that they are Socialists 
because they believe the government and others can intervene in their 
own property rights. And yet I find it to be very, very ironic today, 
as we come to the floor and debate a bill that is going to gut the 
property rights of artists, that apparently the belief on the amendment 
actually is the belief that property rights are only important if there 
are supporters' property rights.
  I think the gentleman talked about Shaun Colvin, a young songwriter. 
Last night she performed in Washington, D.C. She is 5 months pregnant, 
she

[[Page H1458]]

won a Grammy; she is still struggling. She is not rich, she is not 
wealthy; and there is going to be an attempt to make these musicians 
out to be rich and famous rock star types. They are not.
  There are a lot of struggling people who have been working 15, 20, 30 
years, working their entire life to build property, intellectual 
property that is every bit as dear to them as real property in our 
districts. And so for us to just gut their ability to earn a living 
because of problems they have done is absolutely ridiculous.
  So I thank the gentleman for his statements, and I am greatly 
distressed that apparently some people in this Chamber only respect the 
property rights of nonsupporters.
  Mr. DOGGETT. Mr. Speaker, will the gentleman yield?
  Mr. SCARBOROUGH. I yield to the gentleman from Texas.
  Mr. DOGGETT. Mr. Speaker, I am so pleased to see that not all of the 
concern for music on the Republican side is expressed by the singing 
Senators and that there are other musicians and lovers of music on the 
Republican side that recognize this is basically a property rights 
issue.
  Mr. SCARBOROUGH. This is an issue that was very important to Sonny 
Bono, and in fact is one of the issues that he talked about the most 
when he was here on Capitol Hill, because Sonny understood, he had been 
struggling his whole life to create songs, to create something that 
mattered, that would have a lasting impact, that is going to last long 
after Sonny has been gone. And so it is not just myself, Sonny 
recognized it, there are other people who recognize that if we are for 
property rights, real property rights, we should be for intellectual 
property rights too.
  Mr. FROST. Mr. Speaker, I urge adoption of the rule, and I yield back 
the balance of my time.
  Mr. DIAZ-BALART. Mr. Speaker, I yield back the balance of our time, 
and I move the previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.
  The SPEAKER pro tempore (Mr. Shimkus). Pursuant to House Resolution 
390 and rule XXIII, the Chair declares the House in the Committee of 
the Whole House on the State of the Union for the consideration of the 
bill, H.R. 2589.
  The Chair designates the gentleman from Alabama (Mr. Everett) as 
Chairman of the Committee of the Whole, and requests the gentleman from 
Florida (Mr. Diaz-Balart) to assume the Chair temporarily.

                              {time}  1058


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
H.R. 2589 to amend the provisions of title 17, United States Code, with 
respect to the duration of copyright, and for other purposes, with Mr. 
Diaz-Balart (Chairman pro tempore) in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN pro tempore. Pursuant to the rule, the bill is 
considered as having been read the first time.
  Under the rule, the gentleman from North Carolina (Mr. Coble) and the 
gentleman from Massachusetts (Mr. Frank) each will control 30 minutes.
  The Chair recognizes the gentleman from North Carolina (Mr. Coble).
  Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I rise in support of the bill, H.R. 2589, the Copyright 
Term Extension Act, reported by the Committee on the Judiciary by voice 
vote, without objection. This important and significant bill will give 
to the United States economy 20 more years of foreign sales, revenues 
from books, movies, records, and software products sold abroad.
  We are, Mr. Chairman, by far the world's largest producers of 
copyrighted works, and the copyright industries give us one of our most 
significant trade surpluses.

                              {time}  1100

  Our most valuable economic resource is no longer our industrial power 
and natural resources, but the creative potential of the minds of our 
citizens.
  While our creativity holds America's greatest promise for the future, 
it is also our most fragile commodity, fragile because while difficult 
and expensive to produce and market, it is relatively easy and 
inexpensive to copy and to use for free.
  We must ensure that foreign markets are open to our intellectual 
property exports, and just as importantly, that our copyright 
industries be given reciprocity and the opportunity to compete. That is 
what this bill is all about, Mr. Chairman.
  The European Union countries, pursuant to a directive, have adopted 
domestic laws which would protect their own works for 20 years more 
than they protect American works. This bill would correct that by 
granting to United States works the same amount of protection which, 
under international agreements, requires reciprocity.
  Under the current law, most works receive copyright protection for 
the life of the author plus 50 years. In the case of works made for 
hire, such as a movie, the copyright term typically endures for a 
period of 75 years from the year of its publication.
  H.R. 2589 would bring the term of copyright protection from the life 
of the author plus 50 years to the life of the author plus 70 years and 
of works made for hire from 75 to 95 years from the date of 
publication.
  Trade surpluses are not the only benefit of term extension. It is 
also good for consumers. When works are protected by copyright, they 
attract investors who can exploit the work for profit. That, in turn, 
brings the work to the consumer who may enjoy it at a movie theater, at 
a home, in a car, or in a retail establishment. Without that 
exploitation, a work may lie dormant, never to be discovered or 
enjoyed.
  Now, of course, copyright protection should be for a limited time 
only. Perpetual protection does not benefit society. But extending the 
term to allow a property owner to hand that property down to his or her 
children or grandchildren is certainly appropriate, it seems to me, and 
grants the benefits of exploitation for that limited time.
  I urge all my colleagues, Mr. Chairman, to vote yes on this 
bipartisan, noncontroversial legislation.
  Mr. Chairman, I reserve the balance of my time.
  Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself as much time 
as I may consume.
  Mr. Chairman, I am delighted to appear, along with the gentleman from 
North Carolina, chairman of the Subcommittee on Courts and Intellectual 
Property. I should note that this bill is also strongly supported by 
the chairman and ranking member of the Committee on the Judiciary.
  The responsibility to protect intellectual property is a very 
important one. As the gentleman from North Carolina has indicated, 
there are both cultural and economic reasons for doing so. The cultural 
reasons are probably more familiar to people, so we stress sometimes in 
this debate the economic reasons, not because we think the cultural 
reasons are less important, but the economic reasons are not always 
fully understood.
  In an evolving world economy, there are areas where Americans will do 
less than they have in the past. We will make unsophisticated products 
in far less amounts than we used to in an internationally competitive 
world. We all know that. People can lament it, people can support it, 
but it is an unchangeable fact. There is simply not going to be in the 
future, as there already has been, a diminution in American products of 
a relatively simple and uncomplicated era.
  On the other hand, America's comparative advantage in the world has 
been growing in the intellectual property area. We not only enrich much 
of the rest of the world culturally, but we enrich ourselves 
economically by the production of songs and movies and a whole range of 
other things.
  Much of our effort is, in fact, to protect our intellectual property 
against theft overseas. Members are familiar with this in the cases of 
piracy and counterfeiting. What we do here is to try to make sure, in 
part, that the people who do the actual creation share in these riches. 
And they are not people who are in the multibillion dollar category 
exclusively and, in fact, not even primarily.

[[Page H1459]]

  Frankly, for the wealthiest of the creators and performers, the 
additional copyright term is relatively unimportant. This becomes 
important precisely for those who make a living as a song writer, but 
do not get rich at it, who make a living in these areas. What we do 
here is to enhance the stream of income that goes to support their 
creative efforts.
  One part of this bill that is particularly important, that was worked 
out in a bipartisan way, in fact, says, in cases where the creative 
person, the song writer, the artist, the writer of the book, where for 
a variety of reasons that person may have signed away some of his or 
her rights, to the extent that we are creating a new set of values here 
in this 20-year extension, we have urged that this be renegotiated and 
that the creators be given a share of the additional 20 years. We will 
be monitoring that carefully. I am confident that we will see the 
creator is better treated.
  Yes, many people write songs and write books because of their love of 
the creative process. Love of the creative process is a great thing. 
But great as it is, it is kind of hard to support a family on it. It is 
kind of hard to sustain that.
  What we are saying is, we want to encourage creativity, not simply as 
a hobby, not simply as something that people who are independently 
wealthy can do on their own time, but as a way for people to earn a 
living to support themselves and their families.
  This bill is an important step precisely for those who are not in the 
wealthy category, precisely for those who are trying to earn a living 
day-to-day by writing songs, by writing books. This enhances their 
ability, and it particularly is relevant when we talk about the 20-year 
extension, about their obligation that they feel to deal with their 
families.
  We are talking here about people earning and then being able to 
transfer to their families, to later generations, this kind of writing. 
It is a very important piece of legislation.
  There is an overwhelming consensus on the part of the Committee on 
the Judiciary, which as some of you might have noticed is not always 
united. The Committee on the Judiciary has, indeed, recently been 
overdescribed as a source of contention and as a place for fighting.
  I must say that, having served on the Committee on the Judiciary for 
18 years, I have yet to see the first pie thrown. I keep reading with 
some disappointment that it is a locus for food fights. They seem to 
have them when I am absent. I am going to insist that I be invited to 
the next one; I have got my own seltzer bottle, and I am ready to come.
  But precisely because the Committee on the Judiciary is composed of 
people who are prepared to engage in the most vigorous democratic 
debate when issues divide us, I think it is noteworthy that here there 
is an overwhelming consensus that for cultural reasons, for economic 
reasons, as a matter of fairness, as the gentleman from Florida was 
saying as I came in, we have come forward with a bill that protects the 
right of the creative people in our society, who so enrich the rest of 
us, to benefit some from that creativity.
  Mr. Chairman, I reserve the balance of my time.
  Mr. COBLE. Mr. Chairman, I thank the gentleman from Massachusetts for 
his opening statement.
  Mr. Chairman, I yield 5 minutes to the gentleman from Wisconsin (Mr. 
Sensenbrenner), a member of the Committee on the Judiciary.
  Mr. SENSENBRENNER. Mr. Chairman, today I rise in support of H.R. 
2589, the Copyright Term Extension Act, if, and only if, my amendment 
to ensure fairness in music licensing passes.
  H.R. 2589 provides a very generous windfall to the entertainment 
industry by extending the term of copyright for an additional 20 years. 
That is 20 years more that they can commercially exploit works that 
would otherwise fall into the public domain.
  Mr. Chairman, the Constitution I read suggests the need for balanced 
intellectual property rights between its creators and users. When the 
mechanisms designed to ensure that balance are broken, it is the duty 
of Congress to act.
  Passage of the amendment which I will offer later on today will 
provide that balance. It sends the message that the voice of the tavern 
keeper in Boston, Massachusetts, Greensboro, North Carolina, or 
Milwaukee, Wisconsin is just as important as the parade of celebrities 
that Hollywood has trotted out to support expanding its rights by 
passing term extension and oppose my efforts to enact the modest 
reforms I seek for small business.
  The amendment which I will offer is a compromise version of my 
legislation, H.R. 789, the Fairness in Music Licensing Act and is a key 
vote for the NFIB, the National Restaurant Association, the National 
Association of Beverage Retailers, and the many other small business 
associations.
  They support my amendment because it ensures fairness by providing 
for local arbitration of rate disputes, so small businesses do not have 
to go to New York City and hire an expensive attorney to contest a rate 
that may involve several hundred dollars.
  They support my amendment because it prevents small businesses from 
being forced to pay every music licensing society a fee for music 
already paid for several times over.
  Let me make this point: Under my amendment, nobody gets a free ride. 
The creators of intellectual property are paid. My amendment only 
provides for the exemption for a retailer who has a TV set on or a 
radio set on where the creators of the intellectual property have 
already been paid a licensing fee by the TV or radio station or the 
other broadcast media.
  We should stop the double-dipping, and we should stop the harassment 
of small business operators over the type of programming that they have 
no control over. It does not provide an exemption for tapes or CDs or 
live music performances such as has been described earlier.
  The same groups oppose a window-dressing amendment to be offered 
later on today by the gentleman from Florida (Mr. McCollum). That 
amendment is unanimously opposed by America's small businesses because 
it reflects a rejected proposal from failed negotiations. It contains 
no local arbitration, and it excludes the vast majority of America's 
small businesses from any relief from the music-licensing monopolies.
  Make no mistake, the McCollum substitute to my amendment is the music 
monopolies' amendment. The McCollum-ASCAP-BMI substitute is a key vote, 
no, by the same groups I just identified in support of my amendment.
  Next time, Mr. Chairman, you walk down Main Street in a town in your 
district, walk with your head held high knowing that you did the right 
thing for small business. Do not cozy up to the same folks who have 
been abusing small businesses in your district and mine for years by 
supporting the McCollum amendment, because it substitutes the interest 
of Main Street for the interest of the music monopolies.
  In the name of balance and support for Main Street U.S.A., vote no on 
McCollum and yes on Sensenbrenner.
  The CHAIRMAN. The Chair now recognizes the gentleman from 
Massachusetts (Mr. Delahunt) as the new controller of time for the 
minority.
  Mr. DELAHUNT. Mr. Chairman, I yield as much time as he may consume to 
the gentleman from California (Mr. Berman).
  Mr. BERMAN. Mr. Chairman, I thank the gentleman from Massachusetts 
for yielding me this time.
  Mr. Chairman, I rise in strong support of the bill H.R. 2589, 
Copyright Term Extension. As I believe my colleagues know, Congress is 
obliged under the Constitution to protect intellectual property or, to 
be precise, to secure for limited times to authors the exclusive right 
to their respective writings.
  My colleagues may be less familiar, however, with the fact that the 
U.S. also has international obligations to protect copyright. In 1989, 
the United States, in a long-overdue move, became a member of the Berne 
Convention, the century-old international treaty mandating copyright 
rules for member countries. Under the ``rule of the shorter term,'' 
member countries are only obliged to protect the work of foreign 
authors to the same extent that they would be protected in their 
country of origin.

[[Page H1460]]

  Herein lies the problem. Under current U.S. law, copyright term for 
most works is life of the author plus 50 years. For works made for 
hire, such as motion pictures, the term is 75 years. However, in 1995, 
the European Union extended copyright term by 20 years. If we fail to 
extend our copyright term as well, our intellectual property industry 
would lose millions of dollars in export revenues, and the U.S. balance 
of trade would suffer commensurately.
  European Union countries would not have to extend to American works 
the additional 20-year protection that they have already extended to 
European works. This is an outcome we can and must prevent by passing 
H.R. 2589.
  Later in the debate we will be addressing an amendment that I 
strenuously oppose, to be offered by the gentleman from Wisconsin (Mr. 
Sensenbrenner). That amendment would do great harm to the integrity of 
copyright law, and I will speak to it at the appropriate time.

                              {time}  1115

  But I do not want us to lose sight of the significance of H.R. 2589 
to America's intellectual property interests, both at home and abroad.
  Mr. COBLE. Mr. Chairman, how much time does each side have remaining?
  The CHAIRMAN (Mr. Everett). The gentleman from North Carolina has 
21\1/2\ minutes, and the gentleman from Massachusetts has 22\1/2\ 
minutes.
  Mr. COBLE. I thank the Chairman.
  Mr. Chairman, I yield 10 minutes to the gentleman from Florida (Mr. 
Scarborough).
  Mr. SCARBOROUGH. Mr. Chairman, I thank the gentleman for yielding me 
this time. I certainly agree with the gentleman that H.R. 2589 is very 
important for the copyright protection of this country. However, and I 
will speak to this issue a little bit later on during the debate of the 
Sensenbrenner amendment, but a few things were said that need to be 
addressed.
  The gentleman from Wisconsin (Mr. Sensenbrenner) talked about how the 
McCollum music machine amendment would abuse small businesses. He 
talked about fairness in music licensing. He talked about ``a 
windfall.'' He talked about ``commercial exploitation.''
  Now, we talk about double-speak; who is using the property rights of 
whom to sell beer, to sell food, to sell products in the taverns that 
he spoke about in Anytown, USA? My restaurant owners in northwest 
Florida certainly understand the importance of music in setting a mood 
in a tavern, in setting a mood in a restaurant. They also understand 
what would happen if they turned the music off. Mr. Chairman, that is 
the choice they all have if they do not want to use a product.
  And I hear this talk that somehow supporting property rights now is 
anti-small business. I was elected by small business. Some of my 
biggest supporters throughout northwest Florida own small restaurants 
and own nightclubs, and own other things that come under this bill, and 
they all understand that what sells their product is the mood that they 
set.
  The gentleman from Texas was talking about how music was a backdrop. 
It is. It is a backdrop for these small businesses. Not only is it the 
sound track of our lives and of the movies that we watch, but it is 
also the restaurants that we go into. It sets the mood. And yet, we 
have an amendment to this very, very important bill that would 
absolutely gut the right of those people that are making the property 
that helps people set the moods to sell the products in these small 
businesses that are extraordinarily important to me.
  Let me state again the backbone of my political support comes from 
small businesses, not from PACs, certainly not from unions, not from 
people who want more regulation, and not from people who want this 
Congress to interfere in goodwill negotiations. My people, my 
supporters, are small business people that talk about property rights, 
and they do not talk about property rights only when it suits them 
politically. They talk about property rights for everybody.
  Mr. DOGGETT. Mr. Chairman, will the gentleman yield?
  Mr. SCARBOROUGH. I yield to the gentleman from Texas.
  Mr. DOGGETT. Mr. Chairman, if I understand what the gentleman is 
saying, then if someone develops a very successful restaurant and they 
think it contributes to have some music playing there, they do not 
expect to get the electricity for free, they do not expect to get the 
recording device for free, but some of them apparently think that they 
can take the property of the song writer and get that for free.
  Mr. SCARBOROUGH. Mr. Chairman, reclaiming my time, I do not think it 
is they. I think it is a very small number of people in Washington, 
D.C. Because again, people that own the restaurants in my district 
understand. I have talked to them about this. I would not come on the 
floor without talking to people that support me.
  They understand, if one pays for the carpet to set a mood and one 
pays for the wallpaper to set a mood and one pays for the lighting to 
set a mood, they also understand the most important thing, again, in 
music is the property rights.
  Mr. DOGGETT. Mr. Chairman, if the gentleman will continue to yield, 
if one of those successful restaurants in the gentleman's district has 
a famous name, I could not take that name and open up right next door 
without stealing their property, could I?
  Mr. SCARBOROUGH. Mr. Chairman, the gentleman is exactly right.
  Mr. DOGGETT. Mr. Chairman, is that not the same thing as stealing the 
works of people that have devoted significant time to creating 
something we all enjoy?
  Mr. SCARBOROUGH. Again, reclaiming my time, it certainly does, and I 
remember hearing Sonny Bono talk about this, hearing him over and over 
again. He wrote us Dear Colleague letters, he talked about it nonstop.
  Everybody has this image of Sonny Bono as some guy that just sort of 
stumbled into 7 or 8 gold records, that he just somehow, in the late 
1960s stumbled into 7 gold records and a number 1 and number 2 TV show 
that he produced. That is not the case.
  Sonny told me his story, because we were on the Committee on National 
Security together. He told me his basically hard-luck story about going 
out to Los Angeles in the late 1950s, about working hard around the 
clock. I do not know how many people here know who Phil Spector is, but 
he ran around doing errands for Phil Spector, getting coffee, emptying 
his garbage can, do everything he could do, writing songs, to get an 
opportunity to make a little bit of money.
  What Sonny told me then was, he said, the great thing is now, it is 
something that is going to help my kids. Sonny did not realize just how 
pathetic his words were going to be, to help his kids a lot sooner 
unfortunately than any of Sonny's friends would have liked it to be.
  Mr. DOGGETT. Mr. Chairman, will the gentleman yield?
  Mr. SCARBOROUGH. I yield to the gentleman from Texas.
  Mr. DOGGETT. Mr. Chairman, so what the gentleman is saying is, most 
of the song writers in America, they do not begin their careers at the 
Grammy's or in the movies or on television. It is hard work, and for 
every Sonny Bono, there are thousands of other song writers out there 
that are song-writing on the side, and they are out maybe working for 
one of the small businesses whose misguided association has promoted 
this bill.
  Mr. SCARBOROUGH. Mr. Chairman, reclaiming my time, the gentleman is 
exactly right.
  Last night, again I met one of the gentleman's constituents, Shawn 
Colvin. Now, Shawn Colvin just won a Grammy, and everybody thinks she 
is at the top of the world because she won the Grammy. I saw her last 
night, she was in a dressing room.
  Mr. DOGGETT. Mr. Chairman, if the gentleman would continue to yield, 
the gentleman has good taste, better than I realized.
  Mr. SCARBOROUGH. Mr. Chairman, again reclaiming my time, she was in a 
dressing room smaller than the bathroom of many Members in the Rayburn 
Building, and I will guarantee, she will not make as much money as a 
song writer as any Member in this Chamber today.
  I wrote down the words, when we are hearing about music machine and 
Hollywood stars and blah, blah, blah, I mean this sort of rhetoric to 
make this thing seem, gee, this is going to really help the wealthy 
people. It is not going

[[Page H1461]]

to help the wealthy people. They are going to be making the majority of 
their money on other things, on videos, selling the CDs.
  This helps the people like Ms. Colvin who is 5 months pregnant, who 
certainly, if she was wealthy, would be sitting at home watching TV 
instead of running around trying to make a little bit of money. This 
helps Ms. Colvin, and this helps other people that are struggling to 
get by so that they can work, so that they can devote their life to 
creating artistic works that enhance the quality of life for all of us.
  Mr. DOGGETT. Mr. Chairman, will the gentleman yield further?
  Mr. SCARBOROUGH. I yield to the gentleman from Texas.
  Mr. DOGGETT. Mr. Chairman, I want to extend an invitation to the 
gentleman to come down to Austin, Texas, at some time other than the 
campaign season, of course, and enjoy her where she sounds the best. 
But whether we have Shawn Colvin on the radio or Jerry Jeff Walker or 
any other fine artist from down there in central Texas, the average 
cost of using that kind of music. To the small business, when they talk 
about balance, it is only about a buck and a half a day; is it not?
  Mr. SCARBOROUGH. Mr. Chairman, reclaiming my time, it is very 
minimal. I have to say again, I want to finish how I began because 
people seeing the gentleman from Texas and I go back and forth talking, 
it might scare some of my natural constituents.
  I am a friend of small restaurant owners, I am a friend of small 
businesses. My voting record over 3 or 4 years has shown that. In fact, 
I think the gentleman has called me a right-wing extremist because of a 
lot of my votes on less taxes and less regulation, less Federal 
spending. But I also recognize that small business people are people 
that are song writers, they are people that are doing things that may 
not fit our national constituency, and they deserve protection as much 
as landowners deserve protection.
  If we want to talk about something that really hits home with me in 
my district, because I am always fighting for property rights, stopping 
extremists from coming in and having improper takings, I think we can 
apply that to this situation where we have an amendment in the 
Sensenbrenner amendment that constitutes nothing less than an improper 
taking; and where there is a taking, there needs to be just and full 
compensation, and our Constitution says that. That is why I think this 
does violence to the Constitution's provision and the Fifth Amendment. 
It talks about eminent domain, it talks about just taking, it talks 
about property rights.
  That is why I think the far more sensible approach is the approach 
taken by the distinguished gentleman from Florida (Mr. McCollum). I 
will be supporting his amendment. I ask every single Republican and 
Democrat that cares about property rights, that cares about small 
business owners, that cares about the things that we have been talking 
about we care about for the past 4 years to support Chairman McCollum 
on his amendment when it comes up later on, because it is the wise, the 
fair alternative.
  Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may consume 
to say that listening to the colloquy between the gentleman from 
Florida and the gentleman from Texas, I do not know how, but it might 
be appropriate to redesignate the bill before us as the Sonny Bono Act.
  Mr. Chairman, I yield as much time as he may consume to the gentleman 
from Texas (Mr. Doggett).
  Mr. DOGGETT. Mr. Chairman, I thank the gentleman for yielding to me.
  Last week at the Austin Music Awards down at the South by Southwest 
Music Gathering, we had people from all over the world, and of course 
we had to spotlight a little local talent, so the band that was playing 
is Ray Benson's Asleep At the Wheel, and I think what the gentleman 
from Florida and I are trying to do, from very different, perhaps, 
political perspectives on some other issues, is to be sure that this 
Congress is not asleep at the wheel today.
  Mr. Chairman, the basic thrust of the legislation that we are 
debating today is very positive. We are saying that whether one is an 
author or one is a music artist, that one's property ought not to be 
stolen in China or in Europe or someplace else where people take 
advantage and pirate American works. It is a major problem. This 
Copyright Extension Act is basically sound legislation that tries to 
protect the creative work of the American people wherever it might be 
used around the globe.
  But as we reach out to protect our citizens around the globe, we have 
a group, a special interest group that has come in here to the Congress 
and said, well, we want to hang on a little amendment to this, and our 
little amendment is something called the Musical Fairness Act. We 
cannot get it passed on its own, but we want to stick it on this good 
bill and kind of put it in there.
  It reminds me of another one of our Austin song writers, the late 
Stevie Ray Vaughn. To call this the Fairness in Musical Licensing Act 
is to remind me of that line from his song called the Garden of White 
Lies, ``They are pulling wool over our eyes,'' because that is what 
this is all about.
  It is about pulling wool over our eyes, as we consider a good bill, 
to tack on a very bad bill that could not pass on its own because it 
basically is contrary to a long series of American court decisions and 
American recognition that just because one cannot touch property, a 
trade name, a musical work does not mean it is not very real property 
that deserves to be protected by our Congress. And those who would 
steal this property know that they cannot get away with it under our 
existing law, so they want it legalized in the amendment that is being 
offered today.

                              {time}  1130

  Most of the people that are going to be hurt by this musical theft 
amendment are not even full-time songwriters. They work for small 
businesses and large businesses across this country, and on the side 
they apply their creativity talent. Less than 10 percent of the 
American Society of Composers, Authors, and Publishers earn their 
living full-time from the music that we all enjoy. They are only 
getting a little supplemental income and hoping that one day they can 
become a Sonny Bono, or they can become a Willie Nelson.
  The small compensation that current law requires of those that use 
that music to pay is modest, indeed, compared to the benefit they 
derive. It has been estimated that it costs about $1.58 a day to get 
the benefits of all of those members of the American Society of 
Composers.
  Goodness, do you know in Austin, Texas, you cannot even get a bowl of 
tostados and a little guacamole on the side while you are enjoying this 
music for $1.58. It is not unreasonable to ask that there be some 
compensation to encourage the kinds of musical genius that we have, not 
only in Austin but across this land.
  I have heard from literally hundreds of musicians in this country, 
many of them, of course, from Texas, who have urged the defeat of this 
Musical Theft Act, and who recognized that it represents a deprivation 
of private property rights.
  It is so ironic that some of the people who have spoken out in favor 
of private property rights on this floor would now authorize the taking 
of private rights from the musicians that create so much of what adds 
to the quality of our life, and obviously, flows to the benefit of 
people, regardless of the party label that they wear when they come on 
this floor.
  As with any debate, there is room for some middle ground. Indeed, 
there have been extensive negotiations over this issue, trying to reach 
a reasonable balance. A reasonable balance is not to give the authority 
to steal the property rights of our musicians. But, for example, there 
is a discussion that has gone on that exempts over 65 percent of all 
the drinking establishments in the United States and creates 12 
regional sites for arbitration of disputes.
  On this proposal, actually there was agreement reached with the 
National Licensed Beverage Association, but the National Restaurant 
Association will not have any of it. Why pay something when you can 
change the law and get it for nothing, seems to be their approach. So 
they have been unwilling to join those reasonable organizations that 
would respect private property rights and recognize they ought to

[[Page H1462]]

have to pay something for them, because they want it all their way.
  What we are asking today is that we approve the base legislation, the 
very positive, bipartisan legislation that is being presented here 
today, but not attach to it something that has nothing to do with it, 
that is completely contrary to the purposes of this legislation, and 
will only serve to take away the rights, the creativity, of artists 
across this land.
  I would urge the rejection of that amendment, and the whole concept 
of trying to reach some balance is not achieved by this Musical Theft 
Act, but by the very reasonable approach that follows the agreement 
with the National Licensed Beverage Association that our Republican 
colleague, the gentleman from Florida (Mr. McCollum) is going to offer, 
an approach that provides a change in the law for small businesses, but 
recognizes that there are many other small businesses out there 
involved in the music industry that need protection, too, and will draw 
a reasonable balance and not permit the theft of music creativity.
  Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, let me put another oar in the water. I was not even 
going to get into this, but the die has been cast. The gentleman from 
Florida (Mr. Scarborough) addressed it very adeptly.
  I resent the fact that this is being portrayed as big business versus 
little business. It is not true. I will compare my voting record 
supporting small business men and small business women with anybody on 
this floor. As far as being a friend to the restaurateurs and the 
restaurants across my district, ask any of them down there. I can 
assure the Members that they will say that I have spoken favorably for 
them.
  They do a good job. Songwriters do a good job. Must we, in this era 
of conflict, have to be opposed to one? Can you not be for the 
songwriter and the restaurateur? It seems to me that you can be. Some 
people, I think, are incapable of that in this current climate and in 
this era. They must be opposed to one. They cannot embrace both, they 
have to reject one. I think that is poppycock. I think the gentleman 
who will come on next is going to have an amendment that will exemplify 
that spirit of compromise, and that spirit of embracing both parties to 
this affray.
  Mr. Chairman, I yield 5 minutes to the gentleman from Florida (Mr. 
McCollum), a member of the full committee, who will have a subsequent 
amendment on this matter.
  (Mr. McCOLLUM asked and was given permission to revise and extend his 
remarks.)
  Mr. McCOLLUM. Mr. Chairman, I thank the chairman for yielding time to 
me.
  First of all, I would like to point out that we are here today 
primarily to pass copyright extension. While we are going to be having 
this huge debate over the songwriters' music licensing fees, and I am 
going to offer a substitute amendment that has been already widely 
discussed out here, we do not want to miss the point that hundreds and 
thousands, and more than that, hundreds of thousands, really, of 
various parties in this country, individuals, businesses, and so forth, 
who have copyright interests in books, in music, in TV videos, in 
movies, and all kinds of various productions that are copyrighting, 
whatever you can have a copyright for, anything that you write that you 
copyright on, are in great need of a copyright extension that is the 
underlying part of this bill; that is, to lengthen the life of how long 
your property right is protected, how long can you get royalties or 
money for the reproduction, the publishing of the book, if you will, if 
you want to put it back in the old-fashioned term of art; how long will 
you and your family be able to get royalties for that, and when will it 
become public property to which you have lost your personal property 
right.
  We have been waiting around for quite a long time, 5 or 6 years, to 
get this bill to the floor of the House, simply because there has been 
this big dispute between the restaurants of this country and their 
primary association and the songwriters and their primary association 
over the so-called music licensing issue. We need to resolve that.
  When I come out here in a little while, after the gentleman from 
Wisconsin (Mr. Sensenbrenner) has offered his amendment, that is going 
to basically exempt all restaurants and businesses from having to pay a 
fee that has been paid for years and years to the associations for the 
songwriters' benefit, for every playing of a radio or TV rebroadcast of 
their music, when I come out here in a few minutes to offer my 
substitute, the debate is going to be about certain ways you go about 
giving some relief to some restaurants or some businesses further than 
they already have today.
  There is already an exemption in the law, it has been there a long 
time, for any business of under 1,055 square feet. So if you have a 
really tiny business, you want to play the radio or have your 
television and music on, you do not have to pay a licensing fee.
  The average fee out there on music licensing for restaurants they 
have to pay now is about $30 a month, which for the larger restaurants 
is not a very big deal. For some small restaurants it is a big deal. 
What we have worked out that the gentleman from North Carolina 
(Chairman Coble) I believe is going to support and the gentleman from 
Illinois (Chairman Hyde) of the full Committee on the Judiciary, and 
the gentleman from Michigan (Mr. Conyers), is an amendment to the 
amendment offered by the gentleman from Wisconsin (Mr. Sensenbrenner).
  That is basically the compromise. That we think is where we have 
gotten the product after 5 years of discussion, as close as we can get 
it when the two parties would not come to an agreement, to a technical 
agreement.
  So it is truly a compromise amendment that I am offering. It would 
exempt 65 to 70 percent of all restaurants who are currently paying 
music licensing fees from ever having to pay it, my substitute would. 
That is a pretty big hunk of it. That is certainly all the smaller 
restaurants and quite a number of restaurants of much larger size.
  It would exempt all restaurants, regardless of size, from having to 
pay these fees they have always paid to songwriters if they have as 
many as six speakers to broadcast the radio around in their shop, or 
fewer, or if they have four televisions or fewer. So a lot more are 
going to be picked up. It is hard to measure how many have that. You 
can limit the number of speakers you have in your restaurant and get 
exempted altogether from paying fees that you have currently been 
paying.
  But more importantly, perhaps, than what it does in that regard, it 
provides some balance, because as the gentleman from Florida (Mr. 
Scarborough) has pointed out, songwriters are small business men, too. 
We are out here trying to protect small business men and give 
exemptions to the truly small restaurateurs of this country, but also 
protect the songwriters so they continue to be able to get their 
livelihood.
  There are thousands of songwriters, most all of whom get their entire 
income and livelihood from the royalty fees they get from the 
copyrighted songs that they write, yet their average income is 
somewhere under $10,000 a year for a songwriter. That is pretty darned 
small. They are not the wealthy people of this Nation. The fees they 
get from the use of their songs in these restaurants, especially in the 
larger chains that are out there, is very important to them.
  As I said, it is about $30 a month that the restaurants pay. It goes 
into a pool of money these associations have, and then those 
associations of songwriters spread the money around and pay a 
proportionate share to all the songwriters who are members. I think 
that is really important to protect. That is what my amendment would 
do, to allow them to continue to have some money from this source from 
the larger restaurants in this country. That is, again, the compromise, 
the balance, in here that is involved.
  I also would like to point out that most songwriters never get a big 
hit. If they get a big hit, a few of them do make some money. I am sure 
there will be somebody out here sometime today pointing out some of 
those people who do. But for every songwriter that gets a big hit and 
makes a lot of money, there are literally a thousand others for every 
one of those who do not. That is what this legislation protects are 
those thousand others, thousands of others, who do not ever get the big 
hit.

[[Page H1463]]

  Last but not least, there is a compromise in what I am going to offer 
out here in a little while dealing with the question of complaints we 
have had for some time about the fact that restaurants in particular, 
small businesses, have had to go a long way, to New York, to go appeal 
a fee dispute with these associations collecting the music licensing 
fees, because there is a rate commission set up to do it.

  What the gentleman from Wisconsin (Mr. Sensenbrenner) would provide 
would be that there would be arbitration in every locality around the 
country. That would provide uniformity. That would be expensive the 
other way around.
  What we have tried to do in a compromise is say we will set up a 
provision for circuit riders from this rate commission to go around to 
the sitting seats of all 12 Federal judicial circuits to sit regularly 
to settle these disputes, so people do not have to travel as far.
  I think what I am offering in a little while out here truly is the 
compromise substitute. Let us do it now so we can get on with the main, 
underlying thrust of this bill, and that is copyright extension. That 
is what we are here about today. It is long overdue. We cannot afford 
to have this dispute between the restaurants and the songwriters tie up 
this legislation any longer. The bill, underlying bill, is too 
important. I urge my colleagues to both vote for my substitute when the 
time comes and vote for the underlying bill.
  Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I rise in strong support of the underlying bill. I 
think it is important to understand that this bill is not simply a 
means to encourage American creativity and to protect the products of 
that creativity. Just as importantly, it is about the future of our 
national economy. I suggest that is not an exaggeration.
  Most importantly, it is about our balance of trade, a balance of 
trade that for some time has registered a substantial deficit, a 
deficit that exploded last month as a result of the financial crisis in 
Asia, and according to most economists, a deficit that will continue to 
escalate because of that crisis.
  Mr. Chairman, we cannot afford to not pass this bill if we hope to 
control this burgeoning trade deficit and protect our national economic 
well-being. Furthermore, it is essential that the Sensenbrenner 
amendment that we will be considering shortly be defeated and the 
McCollum-Conyers substitute pass. Otherwise our trading partners will 
claim that Congress has enacted an overly broad exemption to our 
copyright laws that violates our international treaty obligations. If 
we do not defeat the Sensenbrenner amendment, not only will this be 
unfair to songwriters, but it will further exacerbate our trade 
deficit.
  America is the world's leading producer and exporter of copyrighted 
products. The entire world clamors for American software, American 
movies, American television programs, American videos, American 
literature, and American music. Just these core copyrighted industries 
produce a surplus of $50 billion annually in our trade with the rest of 
the world.
  Just imagine what our trade deficit would be if that $50 billion 
annual surplus were at risk or declining. Imagine how many well-paying 
American jobs would be jeopardized in just these industries, which 
create new jobs for American workers at nearly three times the rate of 
the rest of the economy.

                              {time}  1145

  Well, if we want to avoid that disastrous scenario, we must pass this 
bill; because if we are to maintain American leadership and retain our 
comparative advantage in this aspect of international commerce, we must 
adapt to changing international standards of copyright protection, and 
this bill does just that.
  The emerging world standard for the term of copyright protection in 
Europe and throughout most of the developed world is the life of the 
author plus 70 years. In 1995, the European Union adopted this 
standard, but only with respect to works that enjoy comparable 
protection in the country of origin. This means that until the United 
States extends its copyright term to 70 years from its current term of 
50 years, U.S. works will not be entitled to protection for the full 
term accorded to works in the European markets. If this situation 
persists, it will put our creative industries at a serious competitive 
disadvantage and will substantially and adversely affect our overall 
trade posture. Rather, we should foster and nurture our creative 
industries for the sake of our economic future.
  So, Mr. Chairman, I urge my colleagues to vote for American 
prosperity. Support the bill as amended by the McCollum-Conyers 
substitute.
  Mr. Chairman, I yield back the balance of my time.
  Mr. COBLE. Mr. Chairman, I yield 3 minutes to the gentleman from 
California (Mr. Gallegly), a member of the Committee on the Judiciary.
  Mr. GALLEGLY. Mr. Chairman, I thank the gentleman from North Carolina 
(Mr. Coble) for giving me the opportunity to speak today in support of 
this important piece of legislation.
  In February of last year, I introduced a copyright term extension 
bill which is almost identical to the legislation we are considering 
here today. This legislation extends the term for copyrighted products 
by 20 years. This will allow the U.S. copyright term to keep pace with 
the term of European countries that are now our main competitors for 
copyrighted products such as motion pictures and music.
  In 1995, the European Union required member Nations to extend the 
copyright term to life of the author plus 70 years. This is 20 years 
more than is currently granted to the U.S.-based copyrighted works. 
Moreover, under the rules of an international treaty, most of our 
economic competitors are not required to give U.S. works the same term 
of protection as they give their domestic works if the U.S. has a 
shorter copyright term.
  The European Union has exercised this rule and now requires EU member 
States to limit protection of U.S. works to the shorter term granted in 
the United States. Let me emphasize this point: Under a current 
European Union directive, member nations are actually required to 
discriminate against American copyrighted works. The result, unless 
this bill becomes law, is to place our copyright industries at a 
competitive disadvantage with other nations, threatening the incomes of 
U.S. authors, artists, songwriters, and other copyright holders.
  As many of my colleagues know, our copyright industry employs over 6 
million Americans and is one of the fastest growing segments of our 
economy. Moreover, with estimated foreign sales of over $53 billion 
last year, the copyright industry is one of the few areas in the U.S. 
actually enjoying a healthy trade surplus.
  Copyright term extension has enjoyed strong bipartisan backing and is 
supported by a wide-ranging coalition in the current Congress. Among 
many of the groups that support term extension legislation are the 
Songwriters Guild of America, National Academy of Songwriters, the 
Motion Picture Association of America, the Intellectual Property Law 
Section of the American Bar Association, the Recorded Industry 
Association of America, National Music Publishers Association, the 
Information Technology Association of America, and many, many others.
  Mr. Chairman, I would like to congratulate the gentleman from North 
Carolina (Mr. Coble), my friend and colleague, the chairman of the 
Subcommittee on Courts and Intellectual Property of the Committee on 
the Judiciary, for recognizing the importance of the copyright industry 
to the U.S. economy and the need to update our copyright law to the 
current legal and competitive climate faced by the U.S. from countries 
throughout the world.
  Mr. Chairman, I urge my colleagues to support this commonsense yet 
very critical piece of legislation.
  Mr. CONYERS. Mr. Chairman, I urge my colleagues to support this 
amendment which is a fair and balanced compromise to the current 
dispute surrounding music licensing. This dispute really revolves 
around big business seeking an exemption to paying public performance 
royalties for radio, television and other broadcast in their 
restaurants. Copyright owners have the exclusive right to authorize 
others to publicly perform their works. When a commercial establishment 
turns on the radio or television, that is a public performance of 
another's intellectual property.

[[Page H1464]]

  Why should all commercial establishments be exempted from licensing 
fees? Representative Sensenbrenner's amendment is far from a fair 
approach to music licensing. His amendment would create a carve out for 
all commercial establishment using music via any transmission, not just 
standard radio and TV broadcast. Adopting this provision would mean an 
outrageous give away of music by allowing big restaurants to stop 
paying a mere $1.58 a day! Meanwhile ninety percent of music writers 
make less than $10,000 a year! Most songwriters don't perform, so 
licensing fees are critical to their incomes. This amendment is a 
direct big business attack on the livelihood of songwriters.
  My amendment, offered with Representative McCollum, represents 
provisions of an agreement which the parties came close to at the end 
of recent negotiations. The McCollum-Conyers substitute expands the 
current exemption from music licensing to cover all restaurants of less 
than 3,500 square feet, excluding parking lots, no matter what kind of 
radio or television devices are being used. It also exempts restaurants 
of 3,500 square feet or larger if they use only four television sets 
and six speakers, with no more than four speakers in one room and 
reasonable television screen sizes. This compromise offers a fair 
approach by providing a broad exemption to small businesses and 
protecting royalties of songwriters.
  Many of you have heard the song, ``I Heard It Through the Grapevine'' 
which has been recorded by the Temptations, Gladys Knight and the Pips, 
Marvin Gaye and many others. But I bet you have never heard of Barrett 
Strong, the songwriter. Music licensing fees collected by performing 
rights organization (e.g. BMI, ASCAP and SESAC) is the only income Mr. 
Strong receives from his creative work. Don't let big businesses ``rip 
off' artists!
  It is time to end this long dispute--but not by giving away artists' 
rights to just compensation for their creative works. I urge my 
colleagues to vote for the McCollum-Conyers substitute.
  Mr. HOYER. Mr. Chairman, I rise in strong support of the legislation, 
in strong support of the McCollum amendment, and in opposition to the 
Sensenbrenner amendment.
  The Sensenbrenner amendment is nothing short for a ``takings'' 
provision. I have heard a lot about taking. This is about taking, 
whether to or not to. It would force songwriters to provide their music 
for free to restaurants and others. These restaurants then, in turn, 
use this music to enhance their business.
  How is this fair? For the thousands of songwriters, composers and 
music publishers, this amendment is a two-fold insult. First, it says 
to them, ``Your hard work and creative talent aren't worth 
protecting.'' Then it says, ``And by the way, it's not worth a dime 
either.''
  My colleague, Stephen Foster died a pauper. Why did Stephen Foster 
die a pauper? Because the product he created was not popular, was not 
wanted, was not used? No. Because Stephen Foster put his product on the 
table, it was eaten--if you will--listened to, more appropriately, but 
not paid for. And so Stephen Foster, one of the great songwriters of 
America, and indeed the world, died a pauper because the world enjoyed 
his music but did not compensate him for his music.
  The McCollum amendment tries in a reasonable way to get at what is a 
problem that is by some perceived as cataclysmic and by others 
perceived as procedural. It is a reasonable alternative. It is one that 
I will support. But if it does not pass, I will as strongly as I know 
how oppose this legislation, even though I believe its underlying 20-
year extension of the copyright protecting one's property is 
appropriate.
  Mr. Speaker, I have been and always will be opposed to any 
legislation that infringes upon the property rights of anyone. I cannot 
digest ``taking'' someone else's hard work from them for free. This 
amendment is an affront to the tens of thousands of individuals who 
spend a lifetime trying to sell their work in a competitive and 
sparsely rewarded field--especially after considering the cost benefit 
analysis.
  It is estimated that the restaurant business is a $289.7 billion 
industry, while thousands of songwriters draw an income that is 
minuscule in comparison and subsist largely off of royalties. Music 
licensing fees account for less than one percent of expenses for a full 
service restaurant, and the average cost for a restaurant business that 
uses music is $1.58 a day--equivalent to one draft beer.
  Mr. Chairman, let me make it plain: we are considering stripping 
individuals of their intellectual property rights over what boils down 
to a mug of beer.
  Mr. Chairman, I would hope that my colleagues who in fact have some 
property that we put in the public sphere, not expecting remuneration, 
at least not in money, the remuneration we expect is votes when we put 
our property, our ideas, our thoughts, our opinions in the public 
wheel. But when a songwriter sits down to create art, that songwriter 
does so for their own personal enjoyment, but they also do so with the 
expectation that if someone wants to use their product, they will do in 
a capitalistic society what we expect, and that is to compensate them 
fairly for that.
  The previous speaker spoke about the problem with small business. 
Government does not require a small business in America to turn on the 
radio in their place of business or to turn on the television in their 
place of business, not one. They do so because they think to some 
degree it enhances the ambiance of their establishment, and I agree 
with them. And if they thought curtains did or tablecloths did or 
pretty windows did, they would have to pay for all of those increases 
to the ambiance of their establishment. If the restaurant pays for the 
hamburger, it should also face the music and pay for the licensing.
  I have a lot of restaurants in my district and in my State. I 
understand some of them are concerned, and I believe that the McCollum 
amendment tries to reach out to them and say yes, we understand there 
is a problem, let us try to solve it and let us try to solve it where 
there is a meeting of the minds. And in fact, I understand there was a 
meeting of the minds until one party thought perhaps they could win 
without agreement. I do not know that; I have heard that.
  But let us, as we vote on the Sensenbrenner amendment, remember 
Stephen Foster, remember that Stephen Foster gave us so much, this 
Nation and this world, enriched our lives, enriched our culture, 
enriched our enjoyment, and let us not say to the Stephen Fosters of 
the world what they do is not worth us compensating them for it.
  Let me share with you part of a concise perspective offered by former 
Chief Justice Oliver Wendell Holmes: ``If music did not pay, it would 
be given up. If it pays, it pays out of the public's pocket. Whether it 
pays or not, the purpose of employing it is profit, and that is 
enough.''
  I would hope that we would defeat the Sensenbrenner amendment, pass 
the McCollum amendment and pass the bill.
  Mr. HYDE. Mr. Chairman, I rise in support of the bill H.R. 2589, the 
``Copyright Term Extension Act,'' reported by the Committee on the 
Judiciary by voice vote, without objection.
  This is an important bill for our economy. It will mean 20 more years 
of foreign sales revenue coming back into the United States for our 
intellectual property products sold abroad. We are by far the world's 
largest producers of intellectual property and it is one of our most 
significant trade surpluses.
  Copyright is a property right. It is meant to be handed down by its 
creator to his or her children and grandchildren. This amendment 
provides for a small extension in the term of copyright which will 
allow the heirs of our nation's creators to benefit from the work of 
their family members. Writing a song or a novel is no less significant 
than contributing to a family business to be passed on to those we 
choose.
  The Berne Convention for Literary and Artistic Works, of which we are 
a Member, has a provision called the ``Rule of the Shorter Term.'' It 
states that a country need not give a foreign work any more protection 
than that work is given in its country of origin. The European Union 
countries recently adopted the term for copyright that we propose in 
this bill, life of the author plus 70 years. Under the Berne 
Convention, they need not give American copyrighted works the benefit 
of that term, but may limit protection in their countries of our works 
to our current term of life of the author plus 50 years. That, of 
course, means that their works are protected in their countries for 20 
years longer than our works are protected in their countries. While 
that may be good for their products, it is not good for ours.
  I am proud of the fact that American creators and owners of creations 
have made the U.S. the dominant producer in the world of copyrighted 
material. It reflects the ingenuity of our people and indicates that 
through freedom and democracy, people will use their powers of 
creativity for their own benefit and, consequently, for society's 
benefit. This bill will maintain our dominance and continue to allow 
for the exploitation of that creativity which brings it to consumers 
for their enjoyment.
  I want to say a special word about the creative community that is the 
bedrock of our great film and television business. I refer to the 
screenwriters, the directors and the performers. Through their 
respective guilds, they have consistently supported the extension of 
the copyright term, and have asked that they be specifically made 
beneficiaries of the extension. In particular, they requested 
remuneration during the new term for those who currently receive no 
residuals and no royalties for films made before 1960. These films 
include such masterpieces as Casablanca, The Best Years of Our Lives, 
and Sunset Boulevard.
  This bill does not give them that because the Committee believes that 
private negotiation between private parties is always the best place to 
start when determining remuneration. I am certainly a believer in the 
marketplace. But this bill does contain a very strong and

[[Page H1465]]

very serious admonition, a ``Sense of the Congress,'' that urges film 
studios and the guilds to voluntarily negotiate what remuneration 
screenwriters, directors and performers of pre-1960 films shall receive 
for the new term. Congress will be watching the negotiations. I expect 
that both sides in good faith will negotiate a fair outcome, and it 
will certainly not be taken lightly if the ``Sense of the Congress'' is 
not turned into a contractual reality.
  Mr. Speaker, this is a good and balanced bill which will ensure our 
global competitiveness while urging fair compensation for the creators 
who, with the investors and owners, make great copyrighted works our 
national treasures.
  I urge my colleagues to support this fine legislation.
  Mr. CONYERS. Mr. Chairman, I rise in strong support of H.R. 2589, the 
``Copyright Term Extension Act''. This bill will allow the United 
States to keep pace with the copyright terms of European countries that 
are our main competitors for copyright products such as motion pictures 
and music.
  In 1995, the European Union harmonized the copyright term in its 
member countries at a minimum of life plus 70 years--20 years longer 
than the term in the United States. By directive, EU countries will not 
provide copyright protection for U.S. intellectual property in Europe 
beyond what our own law provides. This approach is known as the ``rule 
of the shorter term.'' As a result, absent congressional action, U.S. 
copyright owners will not receive income from uses of their works 
during the 20 additional years of protection available in European 
countries and will therefore be at a relative disadvantage to their 
European competitors.
  Changes in technology that have increased the commercial value of 
works created many years ago. In music, for instance, copyright owners 
are now digitizing musical works and reissuing them to a receptive 
market. A short copyright term is harmful to works of art and music 
whose value may not be recognized until many years since they were 
initially created.
  The world loves American-made music, movies, computer software and 
books. Creators of these works should not be placed at a competitive 
disadvantage in overseas markets. American intellectual property is the 
most sought after abroad and is one of the few bright spots in our 
balance of trade. By acting on copyright extension, Congress will be 
furthering American innovation and protecting American jobs.
  H.R. 2589 also includes a carefully crafted, balanced library 
exemption that ensures that the legitimate needs of the libraries are 
met. In addition the ``fair use doctrine'' is unaffected by the bill. 
Therefore, users continue to enjoy the full benefits of ``fair use'' 
under Section 107 of the Copyright Act.
  I urge all Members to support extending the copyright term which will 
protect American creators and keep U.S. copyright laws in proper 
balance domestically and abroad.
  Mr. COBLE. Mr. Chairman, I have no further speakers, and I yield back 
the balance of my time.
  The CHAIRMAN. All time for general debate has expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill is considered as an original bill for 
the purpose of amendment and is considered read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

                               H.R. 2589

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Copyright Term Extension 
     Act''.

     SEC. 2. DURATION OF COPYRIGHT PROVISIONS.

       (a) Preemption With Respect to Other Laws.--Section 301(c) 
     of title 17, United States Code, is amended by striking 
     ``February 15, 2047'' each place it appears and inserting 
     ``February 15, 2067''.
       (b) Duration of Copyright: Works Created on or After 
     January 1, 1978.--Section 302 of title 17, United States 
     Code, is amended--
       (1) in subsection (a) by striking ``fifty'' and inserting 
     ``70'';
       (2) in subsection (b) by striking ``fifty'' and inserting 
     ``70'';
       (3) in subsection (c) in the first sentence--
       (A) by striking ``seventy-five'' and inserting ``95''; and
       (B) by striking ``one hundred'' and inserting ``120''; and
       (4) in subsection (e) in the first sentence--
       (A) by striking ``seventy-five'' and inserting ``95'';
       (B) by striking ``one hundred'' and inserting ``120''; and
       (C) by striking ``fifty'' each place it appears and 
     inserting ``70''.
       (c) Duration of Copyright: Works Created but Not Published 
     or Copyrighted Before January 1, 1978.--Section 303 of title 
     17, United States Code, is amended in the second sentence by 
     striking ``December 31, 2027'' and inserting ``December 31, 
     2047''.
       (d) Duration of Copyright: Subsisting Copyrights.--
       (1) In general.--Section 304 of title 17, United States 
     Code, is amended--
       (A) in subsection (a)--
       (i) in paragraph (1)--

       (I) in subparagraph (B) by striking ``47'' and inserting 
     ``67''; and
       (II) in subparagraph (C) by striking ``47'' and inserting 
     ``67'';

       (ii) in paragraph (2)--

       (I) in subparagraph (A) by striking ``47'' and inserting 
     ``67''; and
       (II) in subparagraph (B) by striking ``47'' and inserting 
     ``67''; and

       (iii) in paragraph (3)--

       (I) in subparagraph (A)(i) by striking ``47'' and inserting 
     ``67''; and
       (II) in subparagraph (B) by striking ``47'' and inserting 
     ``67'';

       (B) by amending subsection (b) to read as follows:
       ``(b) Copyrights in Their Renewal Term at the Time of the 
     Effective Date of the Copyright Term Extension Act of 1997.--
     Any copyright still in its renewal term at the time that the 
     Copyright Term Extension Act of 1997 becomes effective shall 
     have a copyright term of 95 years from the date copyright was 
     originally secured.'';
       (C) in subsection (c)(4)(A) in the first sentence by 
     inserting ``or, in the case of a termination under subsection 
     (d), within the five-year period specified by subsection 
     (d)(2),'' after ``specified by clause (3) of this 
     subsection,''; and
       (D) by adding at the end the following new subsection:
       ``(d) Termination Rights Provided in Subsection (c) Which 
     Have Expired on or Before the Effective Date of the Copyright 
     Term Extension Act of 1997.--In the case of any copyright 
     other than a work made for hire, subsisting in its renewal 
     term on the effective date of the Copyright Term Extension 
     Act of 1997 for which the termination right provided in 
     subsection (c) has expired by such date, where the author or 
     owner of the termination right has not previously 
     exercised such termination right, the exclusive or 
     nonexclusive grant of a transfer or license of the renewal 
     copyright or any right under it, executed before January 
     1, 1978, by any of the persons designated in subsection 
     (a)(1)(C) of this section, other than by will, is subject 
     to termination under the following conditions:
       ``(1) The conditions specified in subsection (c) (1), (2), 
     (4), (5), and (6) of this section apply to terminations of 
     the last 20 years of copyright term as provided by the 
     amendments made by the Copyright Term Extension Act of 1997.
       ``(2) Termination of the grant may be effected at any time 
     during a period of 5 years beginning at the end of 75 years 
     from the date copyright was originally secured.''.
       (2) Copyright renewal act of 1992.--Section 102 of the 
     Copyright Renewal Act of 1992 (Public Law 102-307; 106 Stat. 
     266; 17 U.S.C. 304 note) is amended--
       (A) in subsection (c)--
       (i) by striking ``47'' and inserting ``67'';
       (ii) by striking ``(as amended by subsection (a) of this 
     section)''; and
       (iii) by striking ``effective date of this section'' each 
     place it appears and inserting ``effective date of the 
     Copyright Term Extension Act of 1997''; and
       (B) in subsection (g)(2) in the second sentence by 
     inserting before the period the following: ``, except each 
     reference to forty-seven years in such provisions shall be 
     deemed to be 67 years''.

     SEC. 3. TERMINATION OF TRANSFERS AND LICENSES COVERING 
                   EXTENDED RENEWAL TERM.

       Sections 203(a)(2) and 304(c)(2) of title 17, United States 
     Code, are each amended--
       (1) by striking ``by his widow or her widower and his or 
     her children or grandchildren''; and
       (2) by inserting after subparagraph (C) the following:
       ``(D) In the event that the author's widow, widower, 
     children, and grandchildren are not living, the author's 
     executors shall own the author's entire termination interest, 
     or, in the absence of a will of the author, the author's next 
     of kin shall own the author's entire termination interest, on 
     a per stirpes basis according to the number of such author's 
     next of kin represented. The share of the children of a dead 
     next of kin at the same level of relationship to the author 
     eligible to take a share of a termination interest can be 
     exercised only by the action of a majority of them.''.

     SEC. 4. REPRODUCTION BY LIBRARIES AND ARCHIVES.

       Section 108 of title 17, United States Code, is amended--
       (1) by redesignating subsection (h) as subsection (i); and
       (2) by inserting after subsection (g) the following:
       ``(h)(1) For purposes of this section, during the last 20 
     years of any term of copyright of a published work, a library 
     or archives, including a nonprofit educational institution 
     that functions as such, may reproduce, distribute, display, 
     or perform in facsimile or digital form a copy or phonorecord 
     of such work, or portions thereof, for purposes of 
     preservation, scholarship, or research, if such library or 
     archives has first determined, on the basis of a reasonable 
     investigation, that none of the conditions set forth in 
     subparagraphs (A), (B), and (C) of paragraph (2) apply.
       ``(2) No reproduction, distribution, display, or 
     performance is authorized under this subsection if--
       ``(A) the work is subject to normal commercial 
     exploitation;
       ``(B) a copy or phonorecord of the work can be obtained at 
     a reasonable price; or
       ``(C) the copyright owner or its agent provides notice 
     pursuant to regulations promulgated by

[[Page H1466]]

     the Register of Copyrights that either of the conditions set 
     forth in subparagraphs (A) and (B) applies.
       ``(3) The exemption provided in this subsection does not 
     apply to any subsequent uses by users other than such library 
     or archives.''.

     SEC. 5. VOLUNTARY NEGOTIATION REGARDING DIVISION OF 
                   ROYALTIES.

       It is the sense of the Congress that copyright owners of 
     audiovisual works for which the term of copyright protection 
     is extended by the amendments made by this Act, and the 
     screenwriters, directors, and performers of those audiovisual 
     works, should negotiate in good faith in an effort to reach a 
     voluntary agreement or voluntary agreements with respect to 
     the establishment of a fund or other mechanism for the amount 
     of remuneration to be divided among the parties for the 
     exploitation of those audiovisual works.

     SEC. 6. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect on the date of the enactment of this Act.

  The CHAIRMAN. No amendment to the bill is in order unless printed in 
the portion of the Congressional Record designated for that purpose.
  The Chairman of the Committee of the Whole may postpone a request for 
a recorded vote on any amendment and may reduce to a minimum of 5 
minutes the time for voting on any postponed question that immediately 
follows another vote, provided that the time for voting on the first 
question shall be a minimum of 15 minutes.
  Are there any amendments?


                  Amendment No. 2 Offered by Mr. Coble

  Mr. COBLE. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment No. 2 offered by Mr. Coble:
       Page 4, line 9, strike ``of 1997''.
       Page 4, line 24, strike ``of 1997''.
       Page 5, line 12, strike ``of 1997''.
       Page 6, line 4, strike ``of 1997''.
       Page 6, strike line 17 and all that follows through page 7, 
     line 4 and insert the following:
       ``(D) In the event that the author's widow or widower, 
     children, and grandchildren are not living, the author's 
     executor, administrator, personal representative, or trustee 
     shall own the author's entire termination interest.''.
       Insert the following after section 5 and redesignate the 
     succeeding section accordingly:

     SEC. 6. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO 
                   TRANSFERS OF RIGHTS IN MOTION PICTURES.

       (a) In General.--Part VI of title 28, United States Code, 
     is amended by adding at the end the following new chapter:

      ``CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS

``Sec.
``4001. Assumption of contractual obligations related to transfers of 
              rights in motion pictures.

     ``Sec. 4001. Assumption of contractual obligations related to 
       transfers of rights in motion pictures

       ``(a) Assumption of Obligations.--In the case of a transfer 
     of copyright ownership in a motion picture (as defined in 
     section 101 of title 17) that is produced subject to 1 or 
     more collective bargaining agreements negotiated under the 
     laws of the United States, if the transfer is executed on or 
     after the effective date of this Act and is not limited to 
     public performance rights, the transfer instrument shall be 
     deemed to incorporate the assumption agreements applicable to 
     the copyright ownership being transferred that are required 
     by the applicable collective bargaining agreement, and the 
     transferee shall be subject to the obligations under each 
     such assumption agreement to make residual payments and 
     provide related notices, accruing after the effective date of 
     the transfer and applicable to the exploitation of the rights 
     transferred, and any remedies under each such assumption 
     agreement for breach of those obligations, as those 
     obligations and remedies are set forth in the applicable 
     collective bargaining agreement, if--
       ``(1) the transferee knows or has reason to know at the 
     time of the transfer that such collective bargaining 
     agreement was or will be applicable to the motion picture; or
       ``(2) in the event of a court order confirming an 
     arbitration award against the transferor under the collective 
     bargaining agreement, the transferor does not have the 
     financial ability to satisfy the award within 90 days after 
     the order is issued.
       ``(b) Failure To Notify.--If the transferor under 
     subsection (a) fails to notify the transferee under 
     subsection (a) of applicable collective bargaining 
     obligations before the execution of the transfer instrument, 
     and subsection (a) is made applicable to the transferee 
     solely by virtue of subsection (a)(2), the transferor shall 
     be liable to the transferee for any damages suffered by the 
     transferee as a result of the failure to notify.
       ``(c) Determination of Disputes and Claims.--Any dispute 
     concerning the application of subsection (a) and any claim 
     made under subsection (b) shall be determined by an action in 
     United States district court, and the court in its discretion 
     may allow the recovery of full costs by or against any party 
     and may also award a reasonable attorney's fee to the 
     prevailing party as part of the costs.''.
       (b) Conforming Amendment.--The table of chapters for part 
     VI of title 28, United States Code, is amended by adding at 
     the end the following:

``180. Assumption of Certain Contractual Obligations........4001''.....

  Mr. COBLE (during the reading). Mr. Chairman, I ask unanimous consent 
that the amendment be considered as read and printed in the Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
North Carolina?
  There was no objection.
  Mr. COBLE. Mr. Chairman, this amendment will make technical changes 
to further clarify who owns the termination interest in a copyrighted 
work when an author passes away, and provide for the proper transfer of 
contractual obligations when a copyright is transferred.
  Regarding the transfer of contractual obligations provision, I would 
like to clarify the meaning of a certain term. The ``reason to know'' 
language is intended to be interpreted in light of common sense and 
industry practice. Because many motion pictures made in the United 
States are produced subject to one or more collective bargaining 
agreements, the distributor would ordinarily perform some check on 
whether the motion picture is subject to such an agreement. The 
provision would not, however, require a burdensome or exhaustive 
examination. Publicly available information that indicates a work's 
status, such as records of a guild's security interest in the motion 
picture filed with the copyright office, would ordinarily provide 
``reason to know'' within the meaning of the act.
  Mr. Chairman, this amendment is noncontroversial and as best I can 
determine is not opposed, and I urge my colleagues to support it.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last 
word.
  Mr. Chairman, the gentleman from North Carolina (Mr. Coble) is right. 
It is not controversial and there is no opposition.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from North Carolina (Mr. Coble).
  The amendment was agreed to.


              Amendment No. 1 Offered by Mr. Sensenbrenner

  Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment No. 1 offered by Mr. Sensenbrenner:
       Page 1, insert before section 1 the following:
                   TITLE I--COPYRIGHT TERM EXTENSION
       Strike section 1 and insert the following:

     SEC. 101. SHORT TITLE.

       This title may be referred to as the ``Copyright Term 
     Extension Act''.
       Redesignate sections 2 through 5 as sections 102 through 
     105, respectively.
       In section 105, as so redesignated, strike ``this Act'' and 
     insert ``this title''.
       Strike section 6 and insert the following:

     SEC. 106. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect on the date of the enactment of this Act.
       Add at the end the following:
                       TITLE II--MUSIC LICENSING

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Fairness in Musical 
     Licensing Act of 1998''.

     SEC. 202. EXEMPTION OF CERTAIN MUSIC USES FROM COPYRIGHT 
                   PROTECTION.

       (a) Business Exemption.--Section 110(5) of title 17, United 
     States Code, is amended to read as follows:
       ``(5) communication by electronic device of a transmission 
     embodying a performance or display of a nondramatic musical 
     work by the public reception of a broadcast, cable, 
     satellite, or other transmission, if--
       ``(A)(i) the rooms or areas within the establishment where 
     the transmission is intended to be received by the general 
     public contains less than 3,500 square feet, excluding any 
     space used for customer parking; or
       ``(ii) the rooms or areas within the establishment where 
     the transmission is intended to be received by the general 
     public contains 3,500 square feet or more, excluding any 
     space used for customer parking, if--
       ``(I) in the case of performance by audio means only, the 
     performance is transmitted by means of a total of not more 
     than 6 speakers (excluding any speakers in the device 
     receiving the communication), of which not more than 4 
     speakers are located in any 1 room or area; or
       ``(II) in the case of a performance or display by visual or 
     audiovisual means, any visual portion of the performance or 
     display is communicated by means of not more than 2 audio 
     visual devices, if no such audio visual device has a diagonal 
     screen size greater

[[Page H1467]]

     than 55 inches, and any audio portion of the performance or 
     display is transmitted by means of a total of not more than 6 
     speakers (excluding any speakers in the device receiving the 
     communication), of which not more than 4 speakers are located 
     in any 1 room or area;
       ``(B) no direct charge is made to see or hear the 
     transmission;
       ``(C) the transmission is not further transmitted to the 
     public beyond the establishment where it is received; and
       ``(D) the transmission is licensed.''.
       (b) Exemption Relating to Promotion.--Section 110(7) of 
     title 17, United States Code, is amended--
       (1) by striking ``a vending'' and inserting ``an'';
       (2) by striking ``sole'';
       (3) by inserting ``or of the audio, video, or other devices 
     utilized in the performance,'' after ``phonorecords of the 
     work,''; and
       (4) by striking ``and is within the immediate area where 
     the sale is occurring''.

     SEC. 203. BINDING ARBITRATION OF RATE DISPUTES INVOLVING 
                   PERFORMING RIGHTS SOCIETIES.

       (a) In General.--Section 504 of title 17, United States 
     Code, is amended by adding at the end the following new 
     subsection:
       ``(d) Performing Rights Societies; Binding Arbitration.--
       ``(1) Arbitration of disputes prior to court action.--
       ``(A) Arbitration.--(i) If a general music user and a 
     performing rights society are unable to agree on the 
     appropriate rate or fee to be paid for the user's past or 
     future performance of musical works in the repertoire of the 
     performing rights society, the general music user shall, in 
     lieu of any other dispute-resolution mechanism established by 
     any judgment or decree governing the operation of the 
     performing rights society, be entitled to binding arbitration 
     of such disagreement pursuant to the rules of the American 
     Arbitration Association. The music user may initiate such 
     arbitration.
       ``(ii) The arbitrator in such binding arbitration shall 
     determine a fair and reasonable rate or fee for the general 
     music user's past and future performance of musical works in 
     such society's repertoire and shall determine whether the 
     user's past performances of such musical works, if any, 
     infringed the copyrights of works in the society's 
     repertoire. If the arbitrator determines that the general 
     music user's past performances of such musical works 
     infringed the copyrights of works in the society's 
     repertoire, the arbitrator shall impose a penalty for such 
     infringement. Such penalty shall not exceed the arbitrator's 
     determination of the fair and reasonable license fee for the 
     performances at issue.
       ``(B) Definitions.--(i) For purposes of this paragraph, a 
     `general music user' is any person who performs musical works 
     publicly but is not engaged in the transmission of musical 
     works to the general public or to subscribers through 
     broadcast, cable, satellite, or other transmission.
       ``(ii) For purposes of this paragraph, transmissions within 
     a single commercial establishment or within establishments 
     under common ownership or control are not transmissions to 
     the general public.
       ``(iii) For purposes of clause (ii), an `establishment' is 
     a retail business, restaurant, bar, inn, tavern, or any other 
     place of business in which the public may assemble.
       ``(C) Enforcement of arbitrator's determinations.--An 
     arbitrator's determination under this paragraph is binding on 
     the parties and may be enforced pursuant to sections 9 
     through 13 of title 9.
       ``(2) Court-annexed arbitration.--(A) In any civil action 
     brought against a general music user, as defined in paragraph 
     (1) for infringement of the right granted in section 106(4) 
     involving a musical work that is in the repertoire of a 
     performing rights society, if the general music user admits 
     the prior public performance of one or more works in the 
     repertoire of the performing rights society but contests the 
     rate or the amount of the license fee demanded by such 
     society for such performance, the dispute shall, if requested 
     by the general music user, be submitted to arbitration under 
     section 652(e) of title 28. In such arbitration proceeding, 
     the arbitrator shall determine the appropriate rate and 
     amount owed by the music user to the performing rights 
     society for all past public performances of musical works in 
     the society's repertoire. The amount of the license fee shall 
     not exceed two times the amount of the blanket license fee 
     that would be applied by the society to the music user for 
     the year or years in which the performances occurred. In 
     addition, the arbitrator shall, if requested by the music 
     user, determine a fair and reasonable rate or license fee for 
     the music user's future public performances of the musical 
     works in such society's repertoire.
       ``(B) As used in this paragraph, the term `blanket license' 
     means a license provided by a performing rights society that 
     authorizes the unlimited performance of musical works in the 
     society's repertoire, for a fee that does not vary with the 
     quantity or type of performances of musical works in the 
     society's repertoire.
       ``(3) Term of license fee determination.--In any 
     arbitration proceeding initiated under this subsection, the 
     arbitrator's determination of a fair and reasonable rate or 
     license fee for the performance of the music in the 
     repertoire of the performing rights society concerned shall 
     apply for a period of not less than 3 years nor more than 5 
     years after the date of the arbitrator's determination.''.
       (b) Actions That Shall Be Referred to Arbitration.--Section 
     652 of title 28, United States Code, is amended by adding at 
     the end the following:
       ``(e) Actions That Shall Be Referred to Arbitration.--In 
     any civil action against a general music user for 
     infringement of the right granted in section 106(4) of title 
     17 involving a musical work that is in the repertoire of a 
     performing rights society, if the general music user admits 
     the public performance of any musical work in the repertoire 
     of the performing rights society but contests the rate or the 
     amount of the license fee demanded by the society for such 
     performance, the district court shall, if requested by the 
     general music user, refer the dispute to arbitration, which 
     shall be conducted in accordance with section 504(d)(2) of 
     title 17. Each district court shall establish procedures by 
     local rule authorizing the use of arbitration under this 
     subsection. The definitions set forth in title 17 apply to 
     the terms used in this subsection.''.

     SEC. 204. VICARIOUS LIABILITY PROHIBITED.

       Section 501 of title 17, United States Code, is amended by 
     adding at the end the following:
       ``(f) A landlord, an organizer or sponsor of a convention, 
     exposition, or meeting, a facility owner, or any other person 
     making space available to another party by contract, shall 
     not be liable under any theory of vicarious or contributory 
     infringement with respect to an infringing public performance 
     of a copyrighted work by a tenant, lessee, subtenant, 
     sublessee, licensee, exhibitor, or other user of such space 
     on the ground that--
       ``(1) a contract for such space provides the landlord, 
     organizer or sponsor, facility owner, or other person a right 
     or ability to control such space and compensation for the use 
     of such space; or
       ``(2) the landlord, organizer or sponsor, facility owner, 
     or other person has or had at the time of the infringing 
     performance actual control over some aspects of the use of 
     such space, if the contract for the use of such space 
     prohibits infringing public performances and the landlord, 
     organizer or sponsor, facility owner, or other person does 
     not exercise control over the selection of works 
     performed.''.

     SEC. 205. CONFORMING AMENDMENTS.

       Section 101 of title 17, United States Code, is amended by 
     inserting after the undesignated paragraph relating to the 
     definition of ``perform'' the following:
       ``A `performing rights society' is an association, 
     corporation, or other entity that licenses the public 
     performance of nondramatic musical works on behalf of 
     copyright owners of such works, such as the American Society 
     of Composers, Authors, and Publishers, Broadcast Music, Inc., 
     and SESAC, Inc. The `repertoire' of a performing rights 
     society consists of those works for which the society 
     provides licenses on behalf of the owners of copyright in the 
     works.''.

     SEC. 206. CONSTRUCTION OF TITLE.

       Except as provided in section 504(d)(1) of title 17, United 
     States Code, as added by section 203(a) of this Act, nothing 
     in this title shall be construed to relieve any performing 
     rights society (as defined in section 101 of title 17, United 
     States Code) of any obligation under any consent decree, 
     State statute, or other court order governing its operation, 
     as such statute, decree, or order is in effect on the date of 
     the enactment of this Act, as it may be amended after such 
     date, or as it may be enacted, issued, or agreed to after 
     such date.

     SEC. 207. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect on the date of the enactment of this Act, and shall 
     apply to actions filed on or after such date.

  Mr. SENSENBRENNER (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Chairman, the amendment that I offer today is 
the culmination of nearly 4 years of effort to provide relief for the 
small business community from the unfair music licensing system 
administered by the performance rights monopolies.
  My involvement in this issue stems from the tactics of an ASCAP 
operative who circumnavigated a lake in my district, hitting up every 
bar or restaurant with the standard take-or-leave-it proposition. 
Needless to say, I received a number of calls from perplexed and 
outraged owners. The tactics of ASCAP's representative prompted me to 
make a more thorough investigation of how these performance rights 
organizations function and who, if anybody, controls their behavior.
  What I learned was an eye opener. ASCAP and BMI, the two largest 
music licensing societies, are virtual monopolies operating under 
consent decrees administered by the Justice Department. Unfortunately, 
the Justice Department's priorities have been elsewhere, allowing the 
two monopolies to

[[Page H1468]]

operate with impunity. The conduct of these monopolies has prompted 22 
States to adopt code of conduct laws. Given the licensing society's' 
record of heavy-handed action, a Justice Department that has looked the 
other way, and a Federal law that is either ambiguous or clearly 
skewed, now is the time for Congress to act.
  My amendment incorporates three of the core principles embodied in my 
original bill, H.R. 789, the Fairness in Music Licensing Act. First it 
eliminates the most unfair aspect of the current system. Under the 
consent decrees, any business in the United States that wishes to 
dispute a licensing fee with ASCAP or BMI is forced to travel to New 
York City, hire a New York attorney, and fight it out in the Federal 
District Court for the Southern District of New York, the so-called 
rate court.
  My amendment establishes local arbitration of these rate disputes so 
no one is coerced into accepting a license rate simply because it would 
be foolish to spend thousands of dollars to travel to New York to 
challenge the licensing monopolies and their litigation war chest.
  Let me point out that the current law requires that these disputes be 
resolved in court. My amendment takes it out of court, eliminates the 
necessity of hiring an attorney, and has local arbitration decide the 
issue.
  Second, the amendment updates the existing home-style exemption. 
Under the amendment, businesses whose public space is 3,500 square feet 
or less would be exempt from paying royalties for playing the radio or 
TV unless they charge admission. Those over 3,500 square feet would be 
exempt if they had two TVs or less and no more than six speakers.
  It is important to note that the exemption provided in my amendment 
does not, and I repeat, does not apply to live or recorded music where 
the proprietor controls the content. Only TV and radio broadcasts for 
which the broadcaster has already paid the royalty are exempt.
  Let me give an example of how far down the food chain the licensing 
societies go in pursuit of royalties. A marching band plays a song 
during the half time of a football game. First the stadium pays the 
licensing society to use the song played by the band. Then the national 
TV network pays to broadcast the song. Next the local TV station pays 
to broadcast the song. Then the local cable system pays for the song 
again. And finally, the bar in Pewaukee Lake, Wisconsin pays for airing 
the song on TV. That is right. The music licensing societies are paid 
five times, five times for the right, the one playing of one song. That 
is a scam and that is what my amendment reforms.
  The provision also exempts retailers of stereos and television sets 
who under existing laws must pay licensing fees simply to demonstrate 
that their product works so that a customer may buy it. You go into 
your local appliance store to buy a TV. The proprietor turns the TV on 
so that you can see the quality of the picture. And because the 
proprietor did that to sell the TV, they have to pay ASCAP under this 
current law. My amendment eliminates that.
  And finally, the amendment protects landlords and convention owners 
from vicarious liability for music licensing fees for music played by a 
tenant or an exhibitor.
  The CHAIRMAN. The time of the gentleman from Wisconsin (Mr. 
Sensenbrenner) has expired.
  (By unanimous consent, Mr. Sensenbrenner was allowed to proceed for 2 
additional minutes.)
  Mr. SENSENBRENNER. Mr. Chairman, many of our communities do operate 
convention centers and they lease out space. If somebody turns on a TV 
set because they are selling a product or asking to go on vacation 
someplace, then the city or the owner of the convention center gets hit 
up for a licensing fee because they could not turn the hand of the 
tenant on the dial to turn the TV set off.
  Mr. Chairman, while considering the underlying bill, we have 
suggested that Congress is the appropriate place for the expansion of 
the scope of copyright expansion of business' obligations to pay 
additional fees. Meanwhile, the licensing societies and their defenders 
in the Congress claim that this body has no role in the music licensing 
debate where the central issue is a proposal to perhaps modestly 
diminish their ability to extract fees. But the Constitution itself 
suggests the need for balanced intellectual property rights. That is 
precisely what my amendment accomplishes.
  Mr. Chairman, I urge my colleagues not to stand aside and permit this 
Congress to do the bidding of the copyright holders who seek a one-way 
street to expand their rights while denying balance and fairness to the 
small business users of intellectual property. My amendment is 
supported by virtually every small business organization in the 
country, including the NFIB, the National Restaurant Association, the 
National Retail Federation, home builders, florists, and the list goes 
on.
  In the name of balance and in the name of America's small business, I 
ask my colleagues for an ``aye'' vote on the Sensenbrenner amendment.

                              {time}  1200


 Amendment No. 3 Offered by Mr. McCollum to Amendment No. 1 Offered by 
                           Mr. Sensenbrenner

  Mr. McCOLLUM. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment No. 3 offered by Mr. McCollum to Amendment No. 1 
     offered by Mr. Sensenbrenner:
       In lieu of the matter proposed to be inserted as title II, 
     insert the following:
   TITLE II--MUSIC LICENSING EXEMPTION FOR FOOD SERVICE OR DRINKING 
                             ESTABLISHMENTS

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Fairness In Music 
     Licensing Act of 1998.''

     SEC. 202. EXEMPTION.

       Section 110(5) of title 17, United States Code is amended--
       (1) by striking ``(5)'' and inserting ``(5)(A) except as 
     provided in subparagraph (B),'';
       (2) by adding at the end the following:
       ``(B) communication by a food service or drinking 
     establishment of a transmission or retransmission embodying a 
     performance or display of a nondramatic musical work intended 
     to be received by the general public, originated by a radio 
     or television broadcast station licensed by the Federal 
     Communications Commission, or, if an audiovisual 
     transmission, by a cable system or satellite carrier, if--
       ``(i) either the establishment in which the communication 
     occurs has less than 3500 gross square feet of space 
     (excluding space used for customer parking), or the 
     establishment in which the communication occurs has 3500 
     gross square feet of space or more (excluding space used for 
     customer parking) and--

       ``(I) if the performance is by audio means only, the 
     performance is communicated by means of a total of not more 
     than 6 loudspeakers, of which not more than 4 loudspeakers 
     are located in any 1 room or adjoining outdoor space; or
       ``(II) if the performance or display is by audiovisual 
     means, any visual portion of the performance or display is 
     communicated by means of a total of not more than 4 
     audiovisual devices, of which not more than one audiovisual 
     device is located in any 1 room, and no such audiovisual 
     device has a diagonal screen size greater than 55 inches, and 
     any audio portion of the performance or display is 
     communicated by means of a total of not more than 6 
     loudspeakers, of which not more than 4 loudspeakers are 
     located in any 1 room or adjoining outdoor space;

       ``(ii) no direct charge is made to see or hear the 
     transmission or retransmission;
       ``(iii) the transmission or retransmission is not further 
     transmitted beyond the food service or drinking establishment 
     where it is received; and
       ``(iv) the transmission or retransmission is licensed by 
     the copyright owner of the work so publicly performed or 
     displayed;''; and
       (3) by adding after paragraph (10) the following:
     ``The exemptions provided under paragraph (5) shall not be 
     taken into account in any administrative, judicial, or other 
     governmental proceeding to set or adjust the royalties 
     payable to copyright owners for the public performance or 
     display of their works. Royalties payable to copyright owners 
     for any public performance or display of their works other 
     than such performances or displays as are exempted under 
     paragraph (5) shall not be diminished in any respect as a 
     result of such exemption''.

     SEC. 203. LICENSING BY PERFORMING RIGHTS SOCIETIES.

       (a) In General.--Chapter 5 of title 17, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 512. determinations of reasonable license fee for 
       individual proprietors

       ``In the case of any performing rights society subject to a 
     consent decree which provides for the determination of 
     reasonable license fees to be charged by the performing 
     rights society, notwithstanding the provisions of that 
     consent decree, an individual proprietor who owns or operates 
     fewer than 3

[[Page H1469]]

     food service or drinking establishments in which nondramatic 
     musical works are performed publicly and who claims that any 
     license agreement offered by that performing rights society 
     to the industry of which the individual proprietor is a 
     member is unreasonable in its license fee as to that 
     individual proprietor, shall be entitled to determination of 
     a reasonable license fee as follows:
       ``(1) The individual proprietor may commence such 
     proceeding for determination of a reasonable license fee by 
     filing an application in the applicable district court under 
     paragraph (2) that a rate disagreement exists and by serving 
     a copy of the application on the performing rights society 
     Such proceeding shall commence in the applicable district 
     court within 90 days after the service of such copy, except 
     that such 90-day requirement shall be subject to the 
     administrative requirements of the court.
       ``(2) The proceeding under paragraph (1) shall be held, at 
     the individual proprietor's election, in the judicial 
     district of the district court with jurisdiction over the 
     applicable consent decree or in that place of holding court 
     of a district court that is the seat of the Federal circuit 
     (other than the Court of Appeals for the Federal Circuit) in 
     which the proprietor's establishment is located.
       ``(3) Such proceeding shall be held before the judge of the 
     court with jurisdiction over the consent decree governing the 
     performing rights society. At the discretion of the court, 
     the proceeding shall be held before a special master or 
     magistrate judge appointed by such judge. Should that consent 
     decree provide for the appointment of an advisor or advisors 
     to the court for any purpose, any such advisor shall be the 
     special master so named by the court.
       ``(4) In any such proceeding, the industry rate, or, in the 
     absence of an industry rate, the most recent license fee 
     agreed to by the parties or determined by the court, shall be 
     presumed to have been reasonable at the time it was agreed to 
     or determined by the court. The burden of proof shall be on 
     the individual proprietor to establish the reasonableness of 
     any other fee it requests.
       ``(5) Pending the completion of such proceeding, the 
     individual proprietor shall have the right to perform 
     publicly the copyrighted musical compositions in the 
     repertoire of the performing rights society, and shall pay an 
     interim license fee, subject to retroactive adjustment when a 
     final fee has been determined, in an amount equal to the 
     industry rate, or, in the absence of an industry rate, the 
     amount of the most recent license fee agreed to by the 
     parties. Failure to pay such interim license fee shall result 
     in immediate dismissal of the proceeding, and the individual 
     proprietor shall then be deemed to have had no right to 
     perform the copyrighted musical compositions in the 
     repertoire of the performing rights society under this 
     section from the date it submitted its notice commencing the 
     proceeding.
       ``(6) Any decision rendered in such proceeding by a special 
     master or magistrate judge named under paragraph (3) shall be 
     reviewed by the presiding judge. Such proceeding, including 
     such review, shall be concluded within 6 months after its 
     commencement.
       ``(7) Any such final determination shall be binding only as 
     to the individual proprietor commencing the proceeding, and 
     shall not be applicable to any other proprietor or any other 
     performing rights society, and the performing rights society 
     shall be relieved of any obligation of nondiscrimination 
     among similarly situated music users that may be imposed by 
     the consent decree governing its operations.
       ``(8) For purposes of this section, the term `industry 
     rate' means the license fee a performing rights society has 
     agreed to with, or which has been determined by the court 
     for, a significant segment of the music user industry to 
     which the individual proprietor belongs.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 5 of title 17, United States Code, is 
     amended by adding after the item relating to section 511 the 
     following:

``512.Determinations of reasonable license fee for individual 
              proprietors.''.

     SEC. 204. DEFINITIONS.

       Section 101 of title 17, United States Code, is amended--
       (1) by inserting after the definition of ``display'' the 
     following:
       ``A `food service or drinking establishment' is a 
     restaurant, inn, bar, tavern, or any other similar place of 
     business in which the public or patrons assemble for the 
     primary purpose of being served food or drink, in which the 
     majority of the gross square feet of space is used for that 
     purpose, and in which nondramatic musical works are performed 
     publicly.'';
       (2) by inserting after the definition of ``fixed'' the 
     following:
       ``The `gross square feet of space' of a food service or 
     drinking establishment means the entire interior space of 
     that establishment and any adjoining outdoor space used to 
     serve patrons, whether on a seasonal basis or otherwise.'';
       (3) by inserting after the definition of ``perform'' the 
     following:
       ``A `performing rights society' is an association, 
     corporation, or other entity that licenses the public 
     performance of nondramatic musical works on behalf of 
     copyright owners of such works, such as the American Society 
     of Composers, Authors and Publishers (ASCAP), Broadcast 
     Music, Inc. (BMI), and SESAC, Inc.''; and
       (4) by inserting after the definition of ``pictorial, 
     graphic and sculptural works'' the following:
       ``A `proprietor' is an individual, corporation, 
     partnership, or other entity, as the case may be, that owns a 
     food service or drinking establishment. No owner or operator 
     of a radio or television station licensed by the Federal 
     Communications Commission, cable system or satellite carrier, 
     cable or satellite carrier service or programmer, Internet 
     service provider, online service provider, telecommunications 
     company, or any other such audio-visual service or programmer 
     now known or as may be developed in the future, commercial 
     subscription music service, or owner or operator of any other 
     transmission service, or owner of any other establishment in 
     which the service to the public of food or drink is not the 
     primary purpose, shall under any circumstances be deemed to 
     be a proprietor.''

     SEC. 205. CONSTRUCTION OF TITLE.

       Except as otherwise provided in this title, nothing in this 
     title shall be construed to relieve any performing rights 
     society of any obligation under any State or local statute, 
     ordinance, or law, or consent decree or other court order 
     governing its operation, as such statute, ordinance, law, 
     decree, or order is in effect on the date of the enactment of 
     this title, as it may be amended after such date, or as it 
     may be issued or agreed to after such date.

     SEC. 206. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect 90 days after the date of the enactment of this title.
  Mr. McCOLLUM (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Florida.
  There was no objection.
  Mr. McCOLLUM. Mr. Speaker, we are going to have a serious dispute 
today in some detail about how we deal with music licensing, but let me 
tell my colleagues what my amendment is all about. It is all about what 
is called compromise. It is all about the fact that for about 5 years 
now we have been debating, maybe a little longer than that, how to get 
a copyright extension bill out which affects thousands of people and 
all kinds of businesses totally unrelated to what the Sensenbrenner 
amendment is about.
  The reason we have had that debate is because the restaurant owners 
of America have wanted to be exempted from some long-term fees that 
they have had to pay song writers for playing their music in their 
restaurants, and the song writers and their associations that collect 
the fees have been resisting that. And we have arbitrated and tried to 
get dispute settlements and all kinds of things.
  The gentleman from North Carolina (Mr. Coble), who is my subcommittee 
chairman, and the gentleman from Illinois (Mr. Hyde), who is my full 
committee chairman, and the gentleman from Michigan (Mr. Conyers), who 
is our ranking member, and the gentleman from Massachusetts (Mr. Frank) 
have all worked hours and hours trying to get agreement between these 
parties on something so we could move this bill ahead.
  Well, we never got there. But this amendment I am offering is 
essentially where those gentlemen think the compromise ought to be. It 
is true compromise.
  What it does is this: It provides that most of the restaurants of 
this country, the vast majority, will be exempted from paying this fee, 
so the small businessman will not have to pay it anymore. It is about 
$30 a month, they tell me, for each restaurant, and the big restaurants 
are still going to have to pay it. I think that is fair because that is 
the property right of the song writer that he or she has invested their 
entire livelihood in.
  In fact, what it boils down to, if we talk about song writers, is 
that, and there are thousands of them out there, very few of them ever 
have a big hit. The few that do are not terribly worried about it, but 
the thousands that do not average under $10,000 a year in income, 
average under that. So they are really very small business people, and 
their primary livelihood, their only livelihood, frankly, comes from 
the royalties on their songs. And royalties pay gradually.
  Many, many different times, as the gentleman from Wisconsin (Mr. 
Sensenbrenner) correctly pointed out, these songs are played, 
reproduced at different levels, and a little bit here or a little bit 
there, penny here or penny there, is paid into a royalty house that

[[Page H1470]]

distributes money to these folks that only nets them out, after all is 
said and done, for everything they write in a given year about $10,000 
overall in the whole Nation.
  And the restaurants are a big part of that. And if we take away, as 
the Sensenbrenner amendment does, virtually all restaurants in the 
United States paying these fees and lots of other businesses too, we 
have taken away a big hunk of that $10,000 that the average song writer 
gets in the United States from his or her work product each year.
  But my amendment is going to go to exempting small businesses. It is 
the compromise to do that. It does it by using the same 3,500 square 
feet number that the Sensenbrenner amendment does to exempt, but it 
does it on a gross square footage level, which is a lot more reasonable 
to do, where we talk about the entire restaurant, whether it is made up 
with kitchens or bathrooms or whatever, not trying to get in there and 
be more obtrusive, that I do not think most restaurants would want, and 
trying to measure out every restaurant to figure out just exactly how 
much this or that or the other restaurant has in the way of square 
footage for the actual eating space.
  It takes what will probably be on the books in the local community 
with the ordinances that they have and the zoning requirements and all, 
so we can clearly see, without having to go in there and take a tape 
measure, how much are you going to base the fee upon?
  Anyway, the net result of this dispute is that we exempt, as I say, 
65 or 75 percent in my amendment, whereas his does virtually all the 
restaurants in the United States.
  If a restaurant has 6 or fewer speakers for broadcasting on radio or 
television or 4 or fewer televisions, my substitute amendment will 
exempt that restaurant no matter what size it is, no matter what size 
it is. That seems very reasonable.
  But at the same time we provide balance. Besides making these changes 
that exempt a lot of restaurants, we provide balance in the compromise 
amendment to the song writers because we protect their property rights 
so they get something back from the larger restaurants. And we 
recognize they do not always have the big hit by giving them this 
protection.
  By the way, my amendment would increase the exemptions by about 406 
percent over what they are now. I think now there are very few that are 
exempted. But we also provide some balance in terms of the access to 
the courts and to the rate dispute settlement process that has been 
discussed. Right now there are problems in the fact that the rate 
commission that decides various disputes over whether this fee or that 
fee should be paid when a restaurant owes is set up in New York and 
everybody has to go to New York. That is expensive.
  Granted, almost all the small restaurants are being exempted, but 
even the larger ones, we do not want them to have to go to New York. We 
do not want any other business to have to travel that far from home. So 
we set up a provision in the substitute amendment that the circuit seat 
of every one of the Federal judicial circuits, that is, 12 of them, 
where the Federal circuit courts sit, there will be a circuit rider 
from that rate commission travel out there periodically so rate 
disputes can be heard.
  But we will have uniformity. We will not go to the arbitration in 
every local hometown that the Sensenbrenner amendment proposal would 
do.
  The CHAIRMAN. The time of the gentleman from Florida (Mr. McCollum) 
has expired.
  (By unanimous consent, Mr. McCollum was allowed to proceed for 1 
additional minute.)
  Mr. McCOLLUM. Mr. Chairman, so what I am trying to do in this 
substitute is fairly straightforward; it is to provide an opportunity 
for the Members to vote on as close as we can get it to where the 
dispute has been put in terms of compromised negotiations over all of 
these 5 years.
  When it became ripe here in the last couple of weeks, we did not get 
this to closure. Frankly, the restaurants want more. Frankly, the song 
writers would like to have it more their way. But the reality is, this 
is truly a compromise that will provide my amendment, my substitute, 
provide relief for the truly smaller restaurants, 65, 70 percent of all 
restaurants in the United States never have to pay these licenses fees 
again; provide easy access to courts, to settling these disputes 
closely in the geographical area, and protect the property rights of 
the song writers so the song writers can still get some money, some 
income, since most of them do not have a whole lot, from the larger 
restaurants and the larger establishments. That is what it is all 
about.
  I urge a vote for my substitute as the reasonable alternative and 
compromise.
  Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the 
amendment.
  Mr. Chairman, first of all, this McCollum amendment is no compromise. 
It was the last offer of the music-licensing monopolies, ASCAP and BMI, 
in the negotiations which broke off and has been rejected unanimously 
by all the organizations that support my amendment. The adoption of the 
McCollum amendment will not fix the problem with music licensing.
  I would like to give a little comparison between the two. First, the 
McCollum amendment does not provide for local arbitration. Any business 
owner or proprietor that wishes to contest a rate demand by ASCAP and 
BMI still has to go to court and hire a lawyer.
  Now, instead of having to go to New York, the McCollum amendment has 
the cases heard by a Special Master in each of the 12 circuits. That 
does not reduce the cost to a proprietor who wishes to contest 
something that he feels unreasonable. Going to San Francisco from 
Pocatello, Idaho, or to Atlanta from Kissimmee, Florida, or to Chicago 
from Superior, Wisconsin, is going to cost a lot of money and the meter 
ticks; and local arbitrations in the Sensenbrenner amendment will solve 
that.
  Secondly, the McCollum amendment only covers certain restaurants and 
not other music users, whereas, my amendment is universal. Only bars 
and restaurants are covered by the McCollum amendment, not funeral 
homes, the dentist's office, florists, the Main Street appliance store. 
They still are subject to the same type of harassment by ASCAP and BMI 
that my amendment seeks to eliminate. So unless our funeral home or our 
dentist's office has got a restaurant or a bar license, then we do not 
get the exemption. So it is very narrowly targeted.
  Third, the McCollum amendment is poorly targeted and would include 
parts of a restaurant where music is not played. For example, the 3,500 
square feet contained in the McCollum amendment includes the bathroom, 
the broom closet, the refrigeration area, the storage area and the 
like, instead of the 3,500 square feet in my amendment, which is just 
where the music is played. If we want to pay a royalty fee or have to 
pay a royalty fee, we ought to pay a royalty fee where people can 
listen to the music rather than where there is no music.
  The McCollum amendment also does not apply to all music licensing 
societies in its circuit rider provision. It only provides to ASCAP and 
BMI, which are the subject of the consent decrees that were entered 
many years ago. Bob Dylan is not a member of ASCAP and BMI, and if one 
of his tunes comes up on the radio or the TV, the McCollum amendment 
does not apply, and the restaurateur or the bar owner or the other 
retail proprietor is subject to the existing law. The Sensenbrenner 
amendment does not have that defect.
  There is no freedom from vicarious liability in the McCollum 
amendment. So our city's convention center or a big hotel which is open 
for various types of exhibitions is on the hook because one of their 
tenants that they have leased space out to happens to turn on the TV 
when licensed music is played. The Sensenbrenner amendment gets rid of 
the vicarious liability, and that is a protection for hotels as well as 
for the municipalities that operate convention centers and the like.
  The McCollum amendment circuit rider adjudication provision is only 
as good as the Department of Justice consent decrees. If the DOJ gets 
rid of the consent decrees, then everything goes back to New York City. 
And DOJ has done that on many complicated areas, the most prominent of 
which is the AT&T litigation consent decree.

[[Page H1471]]

  The McCollum amendment only applies to a restaurant owner who does 
not own any other business besides his restaurant. So if the restaurant 
owner is into something else, the McCollum amendment does not apply. It 
would go back to the existing law which is so strongly objected to.
  And finally, under the McCollum amendment, an appliance store dealer 
who sells radios and TVs would still have to pay royalties for music 
that comes across the TV when he turns them on to sell them. The 
Sensenbrenner amendment does not do that.
  I think that the McCollum amendment is a sham. It is a fig leaf that 
really does not solve the problems that have caused this issue to come 
to the Congress. And finally, I would like to point out that there are 
those who say that passing the Sensenbrenner amendment is going to take 
away the income of poor, starving artists. If they believe ASCAP's 
figures, only 14 cents of their revenue on the dollar comes from fees 
from bars and restaurants. My amendment does not exempt live 
performances, big nightclubs----
  The CHAIRMAN. The time of the gentleman from Wisconsin (Mr. 
Sensenbrenner) has expired.
  (By unanimous consent, Mr. Sensenbrenner was allowed to proceed for 1 
additional minute.)
  Mr. SENSENBRENNER. And establishments that play their own recorded 
music, their own CDs and tapes.
  My guess is that the exemption that my amendment proposes might 
reduce ASCAP's and BMI's fees by as much as 5 cents on the dollar, but 
they will be able to pick that up with the 20-year term extension that 
is contained in the underlying bill.
  Vote for balance, vote against McCollum and vote for Sensenbrenner.
  Mr. DOGGETT. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I have done everything I could to stop the 
Sensenbrenner amendment except threaten to sing myself; and I would ask 
my colleagues to spare the House that kind of circumstance by 
supporting the amendment the genuine compromise and moderate approach 
that the gentleman from Florida (Mr. McCollum) has offered as a 
substitute to the Sensenbrenner amendment.
  A lot was just said about it. But I think that the bottom line that 
most people in this House and across the country would want to know 
about is that if it is approved, if this McCollum music licensing 
amendment substitute is approved, 65 percent of all the eating and 
drinking establishments in this country will be exempt, their problems 
will be taken care of.
  Already the national licensed beverage folks have agreed to something 
very, very similar, if not exact, to the amendment that the gentleman 
from Florida (Mr. McCollum) is offering. The same amendment would 
exempt audio sound systems with fewer than 6 speakers and would exempt 
video systems with 2 television sets. So there is ample room for 
agreement.
  I am troubled frankly by some of the provisions in this amendment. I 
would like to leave the system largely as it is at present. But I think 
that trying to achieve some balance is a realistic compromise, my 
colleague has come forward with a reasonable amendment.
  We do need to focus, though, on what a failure to adopt his amendment 
is really all about. You see, there really is not any free lunch, we 
have all heard that, and if the restaurants across this country were to 
offer one free lunch after another, we know full well that they would 
go out of business because they have to earn a profit on their labor 
and on their services.

                              {time}  1215

  The same thing is true with reference to those who offer something to 
our community through song writing and through their creative spirit. I 
believe that those same folks deserve to have their property protected 
just as much as the restaurant owner or any small business in this 
country.
  I think one of the reasons we see some of our colleagues tending to 
put our songwriters in a different category is that we often think of 
them as the rich and famous. We think of famous artists like Willie 
Nelson and Jimmy Dale Gilmore, we think of people coming star-studded 
in the limousines and the designer clothes to the Grammys and the other 
celebrations of music like our South by Southwest Music Festival down 
in Austin. But the truth of the matter is that most of our artists are 
out there working somewhere else and doing a little creative work on 
the side and these revenues which are only costing the restaurant or 
the small business that uses this work product about $1.58 a day, those 
revenues are vital to that creative spirit.
  I think not only of the famous groups there in Austin, but one that 
is becoming a little more famous, the Austin Lounge Lizards. They have 
a hit called ``Newt the Gingrich.'' If they want to play that over in 
the Republican Conference to add a little bit more tranquility and a 
little ambience, they would be permitted under the McCollum amendment 
to do that without having to pay any licensing fee. I think it would be 
worth $1.58 a day to them to do that. But in the spirit of compromise, 
they would be exempted from this. And struggling groups like that and 
the members of that band who will be up here I think later in the 
spring to play in Washington, they work full-time at other jobs.
  We ought to recognize the creative genius that they bring, that they 
are not driving the limousines, they are in the cowboy boots and they 
are driving the pickup trucks down in our area, and that they have 
property rights that deserve to be protected, not stolen as would be 
accomplished by the Sensenbrenner amendment if it were adopted in full.
  I quoted from this earlier, but I think it is important to note that 
even going right up to the Supreme Court of the United States, the 
importance of music and music rights has been recognized. It was 
Supreme Court Justice Oliver Wendell Holmes who said it is true that 
music is not the sole object but neither is the food. The object is a 
repast in surroundings that give a luxurious pleasure, not to be had 
from eating a silent meal.
  If music did not pay, it would be given up. Whether it pays or not, 
the purpose of employing it is profit and that is enough. Indeed it is. 
It is a very real quantity. As Justice Holmes wrote in the language of 
an earlier era when this right was recognized, the songwriter 
contributes something to the restaurant or the small business or the 
convention that uses that songwriter's product, that is very real. It 
would not be used at all if the person using it did not think that it 
would bring more profit.
  The CHAIRMAN pro tempore (Mr. Gutknecht) The time of the gentleman 
from Texas (Mr. Doggett) has expired.
  (By unanimous consent, Mr. Doggett was allowed to proceed for 1 
additional minute.)
  Mr. DOGGETT. Mr. Chairman, I want to be wholly bipartisan, as the 
gentleman from Florida (Mr. Scarborough) and I have been on the party 
line, but I would just close in being truly bipartisan on the issue of 
music by making reference to a songwriter from outside of Austin, a 
fellow named Don McLean, who wrote ``American Pie.'' The first verse 
goes like this:
     A long, long, time ago
     I can still remember how that music used to make me smile
     And I knew if I'd had my chance
     That I could make those people dance
     And maybe they'd be happy for a while
     But February made me shiver
     With every paper I'd deliver
     Bad news on the doorstep
     I couldn't take one more step
     I can't remember if I cried
     When I read about his widowed bride
     But something touched me deep inside
     The day the music died.

  What this amendment is all about is to ensure that the creative 
genius of our songwriters does not die, at least protected in part with 
the moderate, reasonable approach that the gentleman from Florida (Mr. 
McCollum) has advanced here today.
  Mr. DREIER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in support of the McCollum amendment. I would 
like to bring up the name of our very dear, departed colleague Sonny 
Bono. Sonny Bono was someone who got very involved in this issue. He 
felt very strongly about it. Sonny Bono had a very unique perspective 
on this issue. He was a restaurateur, and he was also a songwriter.
  I believe that as we look at this issue, that Sonny would have 
supported what I do believe is a compromise. The gentleman from 
Wisconsin (Mr. Sensenbrenner) indicated this

[[Page H1472]]

is not a compromise, but as I have talked to lots of people on this 
issue, it seems to me that this is in fact a compromise. Obviously not 
everyone agrees to it, but it is a compromise.
  What does it do? It actually increases, as the gentleman from Texas 
said, the number of exemptions by 400 percent, to 65 percent of those 
restaurants that actually will be exempt. That is information that was 
provided to us by the Congressional Research Service.
  There is another issue here that is rather troubling to me, and that 
is as we deal in this global economy today, which obviously is getting 
smaller and smaller and smaller as we have found from the trip of the 
President to Africa who was there touting the agreement which we just 
passed in this House last week on expanding new trade opportunities 
with sub-Saharan Africa, it seems to me that as we look at that very 
important issue which we as Americans continue to argue in behalf of, 
that being intellectual property, the fact that when an individual has 
an idea, a concept, that person should be remunerated for that. If we 
were to pass the Sensenbrenner amendment, it would send, I believe, a 
terrible signal to our global trading partners that we as a nation are 
not going to be there on the front line arguing in behalf of 
intellectual property.
  Mr. Chairman, I am strongly supporting the McCollum amendment. 
Frankly, I do not think it is the very best measure but I am in support 
of it as a compromise. It is a compromise that many of our friends in 
the entertainment industry seem to be accepting.
  Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
  Mr. DREIER. I yield to the gentleman from Florida.
  Mr. McCOLLUM. Mr. Chairman, as the gentleman knows, as part of that 
compromise, we have actually increased from what the gentleman from 
Wisconsin (Mr. Sensenbrenner) is offering the exemption for up to four 
TV sets instead of two in a restaurant which actually is very sizable. 
We have doubled the number. That was something that, quite frankly, the 
music industry really did not want us to do. We have tried to go out. 
That is beyond the discussion point where this was a couple of weeks 
ago. There has been a big effort at that.
  Also, the gentleman from Wisconsin has taken away some liability that 
the owner of a space that might be renting it has whenever they might 
be improperly showing, say, Titanic or something, so you do not any 
longer get a fee. It is kind of clever, the owner who might know about 
this.
  Last but not least, he has come along also and done some other things 
that are kind of in the grass back there. He has managed to come to the 
position of saying even the music channel like Muzak, even if you play 
that, and that is what you are playing from a transmission other than 
radio and TV, which is all that we were discussing before we got to 
today in these debates between restaurants and music writers.
  Mr. DREIER. If I could reclaim my time, I would say maybe the 
gentleman went even further than I might have in this negotiating 
process. I will nevertheless continue to support the amendment.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. DREIER. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Chairman, on this question about 
whether or not this is a compromise, and the gentleman has mentioned 
our late colleague Sonny Bono who worked so hard for this, he frankly 
thought this went much too far. He wrote a letter to the Registrar of 
Copyrights expressing his opposition to the notion of giving away on 
the square footage that he felt it might undermine our international 
negotiating process.
  I say that simply for those who would deny that this is a genuine 
compromise. There were people who were strong supporters of the 
original bill who thought it went too far.
  Mr. Chairman, I am supportive of it because I think it is a 
reasonable approach, but I do want to validate the point he made. This 
is a genuine compromise. Mr. Bono in fact thought it had gone too far.
  Mr. DREIER. Mr. Chairman, I thank the gentleman for his contribution 
on that. I would simply say that the only argument that we will be able 
to use with our international trading partners is the fact that we have 
been able to come to a compromise with those who do in fact hold that 
intellectual property here.
  I urge strong support of the McCollum amendment as a compromise. I 
hope very much that we will finally be able to put to rest this battle 
which has been going on for literally years and recognize the very 
important rights of talent that exists in this country.
  Also in closing, I see our former colleague Carlos Moorhead has just 
come into the Chamber. He deserves a great deal of respect for his work 
on this copyright legislation, which he has pursued for a long period 
of time. Resolving this whole overall bill, it will be a great day for 
this institution.
  Mr. DELAHUNT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, much has been made about the ability of the performing 
rights societies, principally ASCAP and BMI, to drive a hard bargain. 
They have been described as monopolies. I would just simply quote a 
great South Boston philosopher, Paddy McPhagan, who clearly would say 
in these circumstances, ``Give me a break.'' These organizations are 
not monopolies. They are trade associations, collective bargaining 
units, if you will, which enable authors and composers to negotiate 
contractual terms that are fair and are equitable. It is absurd to 
suggest that the thousands of songwriters who belong to these trade 
associations could ever negotiate a contract on their own.
  I understand why the restaurant association would want to focus on 
the market power of ASCAP and BMI, but I think it is important to 
remember what this issue is really about. It is about the people that 
are part of these trade associations, the songwriters who create 
American music. They are mostly people whose songs we all know by heart 
but whose names none of us, or most of us, would not even recognize. As 
Mac Davis testified at our hearing, the people who write the songs are 
the low men on the totem pole, the tiny names in fine print and 
parentheses under that star's name on the label, the last guys to get 
credit and the last guys to get paid. They are the ones who create the 
music that fuels an industry that pours millions of dollars into our 
economy and generates millions upon millions of dollars in taxes. Yet 
the songwriters get the smallest piece of the pie, pennies, if you 
will.
  Mac Davis is one of the lucky ones. He is a renowned songwriter. His 
musical gifts have been recognized and he has done extremely well. But 
most songwriters write hundreds of songs over the course of a long 
career before they achieve financial success, if they ever do. George 
David Weiss, who is the current President of the Songwriters Guild and 
one of America's truly great songwriters, commissioned a study that 
established that 10 percent of his colleagues are able to earn a living 
writing songs. He quoted a study that was done in 1980 and I am quoting 
now.

       Song writing is an occupation which has a high degree of 
     risk, a high degree of failure, a low chance of success and 
     in general miserly rewards.

  Like all true artists, they do what they do because they love it. 
When it comes to being compensated for their labors, they are willing 
to accept the verdict of the marketplace. But what they cannot accept 
is having their work stolen from them, and that is what the 
Sensenbrenner amendment would do. I urge my colleagues to vote for the 
McCollum amendment.
  Mr. TALENT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, we have heard a number of different artistic products 
quoted this afternoon. I think that is probably appropriate in this 
context. I remember when I was growing up I was a big fan of the show 
All In The Family. I remember one time somebody said to Archie Bunker, 
who was of course the lead character in that show, to those old enough 
to remember, they said, ``The times they are a-changing, Arch,'' 
quoting a Bob Dylan song. He said, ``Yeah, and every time they do they 
turn around and kick me in the rear end.''
  That is how I think the small businesses of this country continually 
feel. They are ganged up on by big government, by big business, by 
monopolies,

[[Page H1473]]

whether you call them trade societies or artistic units or whatever, by 
the big people who come in and nick them for a little money here and 
there and under circumstances where even if they tentatively or 
theoretically have some rights under the law, they cannot do anything 
about it.
  The politicians always say, ``Yeah, small businesspeople, we love 
you. You're the backbone of our economy, the backbone of our 
communities.'' Now we get a chance to do something to help these 
people, to vindicate their efforts, to vindicate their efforts to 
achieve the American dream, and we have difficulty doing it.
  Let us talk about what the real-world situation is here. It is a 
dentist or somebody who runs a funeral home or somebody who runs a 
small restaurant. They have some speakers in the background and they 
carry a local radio broadcast. Somebody comes in from BMI or ASCAP and 
has a beer or sits there in the waiting room and listens for a little 
while and writes down some songs and then asks to see the manager and 
says, ``You're playing music that we've licensed. You owe us a hundred 
dollars a month. Here's the contract. Sign it. If you don't think you 
owe us or if you don't think you owe us that much, you can do something 
about it. You can go to the Southern District of New York and file suit 
in Federal court and try and vindicate your rights under the law.''

                              {time}  1230

  And they know and we know and everybody knows that is not going to 
happen. That is what the Sensenbrenner amendment is designed to fix. We 
have been trying to fix it for years. Even the supporters of the 
McCollum amendment admit we need to fix something here, we need to do 
something about the situation.
  Now the reason I support Sensenbrenner and not McCollum comes down to 
a couple of things, a couple of the biggest things. First is, the 
McCollum amendment does not cover everybody who is in the situation, 
only covers some restaurants. How many? Sixty-five, 70, 55; I do not 
know if it does not cover all of them, and it does not cover the 
funeral homes or the florists or the dentists' shops, so this will not 
be the end of it if we pass Sensenbrenner. They will be coming back 
because they are manifestly being treated in an unjust fashion where 
they cannot vindicate their rights under the law.
  And the other problem with the McCollum substitute is that it 
requires these small businesspeople to go to circuit court in the seat 
of where? In the city where the circuit court is headquartered. Might 
as well be the Southern District of New York or Honolulu or Russia or 
the Moon. If one lives in North Dakota or South Dakota they cannot go 
to St. Louis, where the Eighth Circuit Court of Appeals is located, and 
try and vindicate their rights to be only charged $80 a month like the 
guy next door instead of $100 a month. And again, we all know that. It 
will not make any difference. We will be right back where we started 
from if we pass McCollum instead of the Sensenbrenner amendment.
  Mr. Chairman, there is a lot of interest at stake here. That is why 
these things are hard, and that is why Members honestly feel 
differently about these kinds of issues, because we have a conflict of 
interest. It is important to protect the intellectual property rights, 
as my friend from California talked about, people who write songs, and 
protect them not just here but all over the world. We need to protect 
them in sub-Saharan Africa as well. But there is another interest, the 
interests of these small businesspeople who stake everything on their 
investments in their small business, for whom that is their life. They 
are interested in being treated fairly. That is important too, and we 
ought to recognize that.
  I agree there is no such thing as a free lunch, and we have all 
learned that in a lot of different endeavors and a lot of different 
circumstances. But how many times does one have to pay for lunch? Go to 
a restaurant, pay for it once. Every situation where a small business 
owner is playing radio music, that license has been paid for at least 
once by the radio operator, sometimes twice, three or four times if it 
is a TV broadcast.
  Let us deal with this issue. Let us admit what we all know. 
Incidental use of this music by people who are not charging admission, 
who do not have a jukebox, who do not have a CD player, they are too 
small on the chain for us to go out and get them in a way that is fair 
and a way that is appropriate and a way that allows them to vindicate 
their rights when they feel they have been treated unfairly.
  We can solve this issue and solve it now. Let us pass the 
Sensenbrenner amendment. Let us be fair to the small businesspeople.
  Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield for a moment?
  Mr. TALENT. I yield to the gentleman from Florida.
  Mr. SCARBOROUGH. Mr. Chairman, I have great respect for the 
gentleman, and I have followed him on a lot of issues in our committee 
and on the floor.
  Mr. TALENT. Reclaiming my time, so far the gentleman is fine.
  Mr. SCARBOROUGH. But I am going to ask a question or two that the 
gentleman may not be fine with.
  Mr. Chairman, the gentleman has said that we need to do something, we 
need to protect the property rights of these people.
  The CHAIRMAN pro tempore (Mr. Gutknecht). The time of the gentleman 
from Missouri (Mr. Talent) has expired.
  (By unanimous consent, Mr. Talent was allowed to proceed for 1 
additional minute.)
  Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield?
  Mr. TALENT. I yield to the gentleman from Florida.
  Mr. SCARBOROUGH. Mr. Chairman, the gentleman from Missouri said 
something needs to be done, he said that the property rights need to be 
protected, he said that they need to do something, and yet he was 
talking about endorsing an amendment that is a black-and-white, an all-
or-nothing approach where absolutely nothing is done. Their property 
rights will be absolutely eviscerated.
  So my question to the gentleman is, as somebody who I have seen for 3 
or 4 years respect property rights, where do we go from here? If my 
colleague supports an amendment that will destroy all property rights 
then what does the gentleman propose we do next?
  Mr. TALENT. Mr. Chairman, reclaiming my time, of course the gentleman 
knows I am not supporting an amendment that destroys all property 
rights, and the gentleman is setting up a premise that is a false 
premise.
  The copyright is vindicated in every case because it is paid for at 
least once, sometimes it is paid for twice, sometimes it is paid for 
three times. And now if the gentleman will indulge me, let me ask him a 
question: Does he expect a tavern owner or a dentist who lives in Fargo 
or who lives in Nebraska to be able to come to St. Louis to vindicate 
his right maybe to pay 20 or 30 or $40 less? Why is the gentleman 
afraid of an arbitration procedure, which is what we have in the 
Sensenbrenner amendment?
  The CHAIRMAN pro tempore. The time of the gentleman from Missouri 
(Mr. Talent) has expired.
  (By unanimous consent, Mr. Talent was allowed to proceed for 30 
additional seconds.)
  Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield?
  Mr. TALENT. I yield to the gentleman from Florida.
  Mr. SCARBOROUGH. Mr. Chairman, I am not afraid of an arbitration 
process, and I like the McCollum idea that we are actually taking it 
out of New York and moving it across the country. What I fear is that 
the gentleman is setting up an arbitration system that has absolutely 
no supervision from any court above it. The gentleman is going to be 
talking about the wild, wild West where somebody in Fargo could make a 
decision that has absolutely nothing to do with the rate system that 
happens in Atlanta, Georgia or California. We would not do that with 
our Federal court system; why would we do it with this?
  Mr. TALENT. Reclaiming my time, Mr. Chairman, a local arbitration 
procedure with a neutral expert master at arbitration is the only way 
to permit these issues to be heard and give everybody a chance to have 
their rights vindicated.
  Mr. HOYER. Mr. Speaker, I move to strike the requisite number of 
words.

[[Page H1474]]

  Mr. Speaker, I rise in strong support of the legislation, in strong 
support of the McCollum amendment, and in opposition to the 
Sensenbrenner amendment.
  This amendment is nothing short, referring to the Sensenbrenner 
amendment, of a taking. I have heard a lot about taking. This is about 
taking, whether to or not to. It would force songwriters to provide 
their music for free to restaurants and others.
  My colleagues, Stephen Foster died a pauper. Why did Stephen Foster 
die a pauper? Because the product he created was not popular, was not 
wanted, was not used? No. Because Stephen Foster put his product on the 
table, it was eaten, if my colleagues will, listened to, more 
appropriately, but not paid for. And so Stephen Foster, one of the 
great songwriters of America, and indeed the world, died a pauper 
because the world enjoyed his music but did not compensate him for his 
music.
  The McCollum amendment tries in a reasonable way to get at what is a 
problem that is by some perceived as cataclysmic and by others 
perceived as procedural. It is a reasonable alternative. It is one that 
I will support. But if it does not pass, I will as strongly as I know 
how oppose this legislation, even though I believe its underlying 20-
year extension of the copyright protecting one's property is 
appropriate.
  Mr. Chairman, I would hope that my colleagues who in fact have some 
property that we put in the public sphere, not expecting remuneration, 
at least not in money, the remuneration we expect is votes when we put 
our property, our ideas, our thoughts, our opinions in the public 
wheel. But when a songwriter sits down to create art, that songwriter 
does so for their own personal enjoyment, but they also do so with the 
expectation that if someone wants to use their product, they will do in 
a capitalistic society what we expect, and that is to compensate them 
fairly for that.
  The previous speaker spoke about the problem with small business. 
Government does not require a small business in America to turn on the 
radio in their place of business or to turn on the television in their 
place of business, not one. They do so because they think to some 
degree it enhances the ambiance of their establishment, and I agree 
with them. And if they thought curtains did or tablecloths did or 
pretty windows did, they would have to pay for all of those increases 
to the ambiance of their establishment.
  I have a lot of restaurants in my district and in my State. I 
understand some of them are concerned, and I believe that the McCollum 
amendment tries to reach out to them and say yes, we understand there 
is a problem, let us try to solve it and let us try to solve it where 
there is a meeting of the minds. And in fact, I understand there was a 
meeting of the minds until one party thought perhaps they could win 
without agreement. I do not know that; I have heard that.
  But let us, as we vote on the Sensenbrenner amendment, remember 
Stephen Foster, remember that Stephen Foster gave us so much, this 
Nation and this world, enriched our lives, enriched our culture, 
enriched our enjoyment, and let us not say to the Stephen Fosters of 
the world what they do is not worth us compensating them for it.
  I would hope that we would defeat the Sensenbrenner amendment, pass 
the McCollum amendment, and pass the bill.
  Mr. HYDE. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Chairman, I do not intend to take the full 5 minutes, 
but I do want to say that I support the McCollum amendment. I have 
great respect and admiration for Mr. Sensenbrenner who has worked long 
and hard on this issue, and admirably so. It is regrettable that over 3 
years of discussions have not resulted in a negotiated settlement. This 
is something that should have been agreed to and negotiated, but I 
guess it was not meant to be. But the McCollum-Conyers substitute, it 
seems to me, is a reasonable and balanced alternative to the issue of 
music licensing, and of some importance is the Congressional Research 
Service finding that the McCollum substitute will exempt over 60 
percent of all restaurants in the United States from paying music 
licensing fees to songwriters for music played over radio and 
television to their customers.
  This is small business week on the floor of the House. We are 
considering important legislation to help preserve the strength of the 
most important sector of our economy which employs more Americans than 
any other, and the amendment of the gentleman from Wisconsin includes 
an exemption for large chains and corporations who are able to pay 
their fair share of licensing fees to songwriters, many of whom I might 
also mention, are small businesses themselves; I am speaking of the 
song writers.
  The McCollum substitute concentrates on true small businesses, those 
restaurants and bars under 3,500 gross square feet. That constitutes 
over 60 percent of the restaurants in America. The substitute also 
exempts restaurants larger than 3,500 gross square feet as long as 
radio and television music is not played over too many speakers. This 
will protect larger restaurants that only play radio and television 
music in bar areas.
  There is much more to be said, and I will put that in the statement 
that will appear in the Record, but if this could not be resolved, 
could not be negotiated, then I prefer the solution proposed by the 
gentleman from Florida (Mr. McCollum).
  Mr. Chairman, I rise in support of the McCollum/Conyers substitute to 
the Sensenbrenner amendment to H.R. 2589, the ``Copyright Term 
Extension Act,'' and urge the House to support the substitute.
  I believe the McCollum/Conyers substitute presents Members with a 
reasonable and balanced alternative on the issue of music licensing. 
According to the Congressional Research Service, the McCollum/Conyers 
substitute will exempt over 60% of all restaurants in the United States 
from paying music licensing fees to songwriters for music played over 
radio and television to their customers in order to enhance their 
businesses.
  This is ``Small Business Week'' on the floor of the House. We are 
considering important legislation that will help to preserve the 
strength of a sector of our economy which employs more Americans than 
any other. The Sensenbrenner Amendment includes an exemption for large 
chains and corporations who are able to pay their fair share of 
licensing fees to songwriters, many of whom, I might also mention, are 
small businesses themselves. The McCollum/Conyers substitute 
concentrates on true small businesses--those restaurants under 3,500 
gross square feet. That constitutes over 60% of the restaurants in 
America. The substitute also exempts restaurants larger than 3500 gross 
square feet as long as radio and television music is not played over 
too many speakers. This will protect larger restaurants that only play 
radio and television music in bar areas.
  In addition to including large chains and corporations, the 
Sensenbrenner exemption also includes within its scope music that comes 
from sources other than radio and television. Surely, we do not want to 
prevent songwriters from getting just compensation for property that 
has not already been broadcast publicly for private enjoyment.
  As you know, negotiations on this issue have been ongoing in the 
Judiciary Committees of both the House and the Senate for almost 3 
years now. One of the problems that Mr. Sensenbrenner rightly attempts 
to correct is the fact that small business owners have to travel to New 
York City if they have a dispute about the rate they are being charged 
to play music in their establishment. This is unfair and needs to be 
rectified. The Sensenbrenner Amendment goes too far the other way, 
however, by being just as unfair to the three performing rights 
organizations by forcing them to arbitrate in any town in America. The 
McCollum/Conyers substitute is a compromise that will allow litigants 
to dispute rates in 12 places around the country where the seats of our 
U.S. Courts of Appeals are located.
  I also want to mention the relevance of our international 
obligations. Under the Trade-Related Aspects of Intellectual Property 
Agreement, and the Berne Convention, the United States may also 
restrict copyright to a point where it does not affect an author's 
ability to own his or her work. I believe, along with the United States 
Trade representative and the Secretary of Commerce, that the 
Sensenbrenner Amendment may violate these treaties which are the law of 
our land. We cannot allow ourselves to be unsuccessful defendants under 
the dispute mechanism of the World Trade organization on this issue 
which may lead to retaliation in areas other than intellectual property 
such as agriculture or resources.
  The United States makes more money internationally from intellectual 
property than from almost any other sector of our economy. It is

[[Page H1475]]

one of our most prized trade surpluses. We must be cautious and 
balanced in affecting our ability to persuade other nations to protect 
U.S. intellectual property. It is difficult to force others to live up 
to intellectual property agreements if we do not live up to them 
ourselves.
  Let us not forget that this is about taking someone's property. The 
Constitution makes it clear that Congress has a duty to encourage 
creativity by allowing for just compensation. I believe that the 
McCollum/Conyers Amendment carries out that purpose while meeting our 
international obligations and protecting small businesses who cannot 
afford licensing fees or travel to New York to dispute an unfair rate. 
The Sensenbrenner Amendment violates that incentive, our international 
obligations, and reaches beyond the constituency it purports to 
protect.
  I urge my colleagues to vote for the McCollum/Conyers substitute to 
the Sensenbrenner Amendment.
  Mr. BERMAN. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. BERMAN asked and was given permission to revise and extend his 
remarks.)
  Mr. BERMAN. Mr. Chairman, this is an issue raised by the gentleman 
from Wisconsin (Mr. Sensenbrenner)--let me indicate initially that I 
rise in strong support of the McCollum substitute and very strong 
opposition to the Sensenbrenner amendment--and it has been an issue 
that has been around the Committee on the Judiciary for a very, very 
long time. And it came to us initially as stories of a series of 
abuses, real or perceived, reported by owners particularly of 
restaurants and bars about things they were required to do. One, they 
could not get access to repertoire. The McCollum amendment provides 
that, which I think in practice is now already being provided. It makes 
it very clear in its provisions that every performing rights 
organization will have to list every piece of music with every writer 
on the Internet, with access to the general public, to the owners and 
proprietors of the store.
  Mr. McCOLLUM. Mr. Chairman, will the gentleman yield on that point?
  Mr. BERMAN. Yes, I yield to the gentleman from Florida.

                              {time}  1245

  Mr. McCOLLUM. Mr. Chairman, I think that is really important because 
you have two different organizations. Sometimes smaller restaurants do 
not want to have to pay a fee to two different outfits. So they have 
the list. They do not have to pay the fee to two different outfits. 
They can just play the music of the group that that organization 
publishes. The gentleman from California's point is really well made.
  Mr. BERMAN. But this was central to the complaints that has initiated 
the whole fight that has been going on for, I think, 8, 10 years in the 
Committee on the Judiciary.
  Secondly, it was always put in the context of the small restaurant or 
the small bar. I never thought that I would see the day when I would be 
coming forward to support an amendment that would exempt establishments 
of 3,500 square feet or under from paying any single fee to a 
performing rights organization for the use of their music.
  The gentleman from Missouri (Mr. Talent) made an eloquent statement. 
But when you examine some of his points, he said I do not want a free 
lunch for anyone. But this is a free lunch. He said the music has 
already been paid for, not by the people who are using it, by the 
stations that have decided to broadcast it. He is now creating a new 
public performance of that music.
  If it is just incidental, which is the way the gentleman from 
Missouri put it, if it is just incidental to the main purpose of their 
business, then if they do not want to pay the small amount annually 
they paid in order to use that music, they turn the radio off. It is 
very, very simple. It is incidental by its own terms. If it is 
incidental, it is essential.
  I would suggest the music is used as part of creating an atmosphere 
which encourages customers to come and patronize that restaurant, and I 
would suggest it is appropriate to ask them to pay for that just as 
much as they would pay for any other aspect of it.
  Mr. SENSENBRENNER. Mr. Chairman, will the gentleman yield?
  Mr. BERMAN. I am happy to yield to the gentleman from Wisconsin.
  Mr. SENSENBRENNER. Mr. Chairman, I have a copy of the McCollum 
amendment that appears at page H-1448 of yesterday's Record, and I do 
not see any provision guaranteeing consumers access to repertoire 
anywhere in the McCollum amendment. Perhaps I am in error, and the 
gentleman from California can enlighten me.
  Mr. BERMAN. Does the gentleman want to take this one at a time?
  Mr. SENSENBRENNER. The second thing is, what we are talking about 
here is TV and the radio. And how is the proprietor of the retail 
establishment to know what song is going to go on next so he can look 
up whether this is licensed by ASCAP or BMI? There is no way he can do 
it.
  Mr. BERMAN. Mr. Chairman, I was not saying the gentleman is simply an 
agent of the restaurant and bars. He used to catalog a series of things 
he felt were wrong with the way music was paid for, and that it was 
very difficult for people who had to pay for music to find out just 
which of the performing rights organizations had the music, and that 
was part of his whole series of criticisms.
  Mr. Chairman, I yield to the gentleman from Florida (Mr. McCollum) to 
answer the gentleman from Wisconsin's initial question.
  Mr. McCOLLUM. Mr. Chairman, the fact is that, technically, the 
gentleman from Wisconsin is right. There is nothing in my bill about 
the repertoire because it is already on-line. The point I think the 
gentleman from California (Mr. Berman) is making, which I was trying to 
amplify, is the fact that that was the reason why the people came from 
the restaurants to originally complain that started the whole history 
of this, is they could not get and figure this out. Now they can.
  The BMI, ASCAP, those associations of songwriters have gone and put 
it on-line so people do not have that complaint anymore. That is the 
basic reason. It does not need to be in the bill.
  Mr. BERMAN. Mr. Chairman, I think I should then also correct myself. 
The version of the amendment that I read yesterday on the airplane had 
some very specific provisions. Apparently they are not in here now.
  Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield for one 
second?
  Mr. BERMAN. I yield to the gentleman from Florida.
  Mr. SCARBOROUGH. Mr. Chairman, just to address the second point, you 
do not have to call the radio stations now, and he knows that. You do 
not have to call the radio stations now anymore. There is now digital 
servers.
  The CHAIRMAN pro tempore (Mr. Gutknecht). The time of the gentleman 
from California (Mr. Berman) has expired.
  (By unanimous consent, Mr. Berman was allowed to proceed for 3 
additional minutes.)
  Mr. SCARBOROUGH. If the gentleman will continue to yield, if you want 
to hear the Beatles 24 hours a day, if you want to hear jazz all day, 
you can hear jazz all day through these digital servers. That is one of 
the really dangerous things about this bill is it expands beyond radio 
and TV and goes into this vast new universe that they know is coming 
down the road.
  Mr. BERMAN. Mr. Chairman, does the gentleman from Florida mean the 
bill or the Sensenbrenner amendment?
  Mr. SCARBOROUGH. I am sorry, the Sensenbrenner amendment. But these 
servers will also be able to provide the restaurant owners in the 
future services that will allow them just to pipe in music by BMI or 
just to pipe in music by ASCAP. And that technology is available today 
and certainly will be used, I predict, in the next few years to make it 
easy for restaurant owners to do that.
  So it is a very easy thing to do. It is very doable. You do not have 
to call your local radio station to see what the play list is. And I 
suspect that most of the people that were behind this amendment know 
that already.
  Mr. BERMAN. Mr. Chairman, continuing, there was one point, though, 
that I have not heard discussed so far. The Sensenbrenner amendment 
simply is not an amendment that exempts some restaurants and bars. It 
exempts all retail establishments.
  But it does a number of other things. It fundamentally changes the 
whole concept of vicarious and contributory

[[Page H1476]]

infringement of copyright. It contains a provision which, if applied, 
would affect the situation like this. I own a number of theaters. I 
lease those theaters to people who are showing unauthorized pirated 
works. And I am exempt from any liability and charging money for 
patronizing those particular works.
  They exempt from any liability the owner of the property that is 
leased, thereby eliminating any incentive that that landlord has when 
he leases his studios or facilities to put in provisions to ensure that 
the lessee does not engage in infringing conduct, does not go out and 
do public performances without paying the people who wrote the music.
  That is a huge and gaping loophole which will lead to a great deal of 
improper activity that could easily be deterred if you just simply 
retain existing concepts of contributory and vicarious liability.
  I think that is another huge weakness in the amendment of the 
gentleman from Wisconsin. The McCollum amendment undoes the effect of 
that amendment, and, therefore, it should be supported.
  Mr. SOUDER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I am a cosponsor of H.R. 789, the Fairness in Music 
Licensing Act, which has bipartisan support of over 157 Members of 
Congress. While I wish that it were what he was offering today on the 
floor, I believe this compromised amendment by Mr. Sensenbrenner is 
fair and balanced.
  The Sensenbrenner amendment is balanced because it does several key 
things. One, it levels the playing field for businesses that use music. 
These business owners will now have a way to settle their disputes with 
music licensing societies without having to go to rate court in New 
York City. We have heard about different options under this but that is 
an important change.
  Two, it will allow businesses of a certain size, 3,500 square feet or 
less where the speakers are located, and that is important, because it 
isn't just a question of where the diners are sitting, it is a question 
of your storage, your kitchens, and receiving areas as well are located 
to be exempt from copyright royalties when they play TVs and radios, 
which is important to remember it is TV and radio music. If a business 
is over 3,500 square feet, it may be exempt if it plays only two TVs 
and has no more than six speakers.
  The Sensenbrenner amendment is fair because it does not change the 
law with respect to other kinds of music that a business may use. For 
example, a restaurant that has live music or plays CDs will not be 
covered by this Sensenbrenner exemption. These restaurants will still 
have to pay copyright royalties.
  Two, it does not change the law with respect to penalties. If a 
business is found to be violating copyright law, the penalty is a 
severe $20,000 per violation. That is, a business caught stealing 
copyrighted music is still liable under the Sensenbrenner amendment.
  I wanted to add a couple of comments based on some of the debate 
here. We are kind of getting lost here, whether Stephen Foster would 
have died a pauper, which I find quite a stretch into this debate. This 
is really about individuals who go to eat at restaurants.
  There is a mythology that businesses pay taxes. Businesses are pass-
through agents. What we are really talking about is whether we are 
going to increase the cost of eating out for diners, or whether diners 
are going to have less ambience, so to speak, or any music in the 
background at all.
  What we are forgetting here in a debate between different financial 
interests are the actual consumers of America. Are we in Congress going 
to, in effect, pass a food and beverage tax increase in this Congress? 
Are we going to have little music police going around to try to see how 
restaurants are enforcing that? Because that is the net that will 
happen.
  Either we will have the sounds of silence, perhaps some restaurants 
will broadcast sounds of silence brought to you by your local 
congressmen, if this passes. Are we going to have the sounds of silence 
here in the restaurants, or are we going to have higher food prices?
  That is really what we are debating here today. We are not debating 
starving artists versus starving restaurant owners. We are debating 
what is going to happen to consumers in the restaurant business.
  It kind of frustrates me in this debate. It is not a matter of just 
the rich and famous as we hear these things are put together, but, 
rather, rich and famous on other sides who are trying to, in effect, 
hit the consumers at restaurants.
  We have also heard that, in fact, restaurant owners could try to 
figure out which licensing company is doing this by going to digital. 
My friend, the gentleman from Florida (Mr. Scarborough) made that 
point.
  I am sitting here as a small business owner myself thinking this is 
not possible. I mean, in effect, businesses will decide probably not to 
offer the music or, in fact, they have not only the licensing fee cost, 
but the cost of the people that try to track that licensing fee.
  So we really are talking a significant potential increase, not just a 
marginal increase in the cost of doing business. Restaurant owners are 
already hammered by our Congress in minimum wage increases, in marginal 
inspection type increases.
  As we have more and more two-parent working families, more and more 
people are eating out. This is really a question of the financial 
pressures we are going to put on families just because of radio and TV 
broadcast, which, in fact, already are going through a process of 
paying for these fees. And it is a secondary market.
  One other comment I wanted to make as far as Congress itself. We 
constantly have this cuteness. I think it would be very interesting for 
somebody in the media to go through Members of Congress' records. When 
constituents call in, many Senators and House Members put them on hold, 
and there is music there.
  I would be very interested to see whether, in fact, the copyright 
laws are being violated by the Members who have stood up here and said 
the restaurant owners should pay. Are they paying the starving artists 
in their offices because they are part of a branch of an institution 
that has 535 offices in it? Are they paying the fees to the starving 
artists if they have music going over their system from a radio 
station? I really question whether that is being done in many cases.
  Mr. CALVERT. Mr. Chairman, will the gentleman yield?
  Mr. SOUDER. I yield to the gentleman from California.
  Mr. CALVERT. Mr. Chairman, I am glad the gentleman from Indiana 
brought up these points. I thought I would come on down as a person who 
was in the restaurant business or used to be in the restaurant business 
before I came to this body.
  The CHAIRMAN pro tempore. The time of the gentleman from Indiana (Mr. 
Souder) has expired.
  (By unanimous consent, Mr. Souder was allowed to proceed for 3 
additional minutes.)
  Mr. CALVERT. If the gentleman will continue to yield, I have heard 
some discussion about 60 percent of the restaurants would be exempt on 
the 3,500 square foot gross. Now, I know from my experience in the 
restaurant industry, many restaurants today are fast food 
establishments, and if you are adding that restaurant to the component, 
which I believe it is, I suspect that the number of dining restaurants, 
sit-down establishments is much lower than the number that is being 
thrown out here today.
  I point out another subject. When I was in the restaurant business, I 
paid ASCAP and BMI fees because I had live entertainment, and I used to 
tape music. So if I used FM radio on the interim, it would not have 
raised my BMI or ASCAP fees at all.
  But those restaurants that just have FM radio, public access, and 
television, which are very few, by the way, it seems to me the only 
reason that we pursue the Sensenbrenner amendment and not the McCollum 
amendment.
  From my perspective, real estate companies who have background music, 
or you mentioned dentists' offices, moving around to pursue collecting 
fees from these businesses is, I think, poor business on their part, 
but certainly intrusive to all small business.
  I would encourage everyone here to vote against the McCollum 
amendment and vote for Sensenbrenner.

[[Page H1477]]

  Mr. SOUDER. Mr. Chairman, reclaiming my time, I would hope that there 
is an understanding in general when it is background music and not 
primarily, something that is the primary business of the company that 
is playing the music.
  But there is an understanding that this helps promote, to some 
degree, the music involved with the individuals, and they are not going 
to be helped by restaurants going silent. They are not going to be 
helped by higher prices in restaurants either. That is really what I 
have a question about in this Republican controlled Congress. Are we, 
in effect, going to pass another backdoor tax increase?
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, to begin, I want to answer the question posed by the 
gentleman from Indiana about whether Members of Congress who play music 
when people are on hold are paying ASCAP.
  My understanding of this bill is that you incur that obligation if 
you are charging people, that is, if you are selling them a meal. So I 
assume those Members who have charged people to call them would owe 
ASCAP money. So if you have a separate line for contributors, then you 
better talk to ASCAP.
  For those of us who do not charge our constituents to call us, I 
think we are probably not in this situation. Although I do not play 
music on my phone, I do not sing or dance for my constituents, I have 
more mundane services I try to perform for them.
  But I would say to the gentleman, if you are charging people to call 
you, then you better be in touch with BMI and ASCAP.

                              {time}  1300

  Mr. SOUDER. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana. A 
microphone will probably help. The gentleman will not be charged for 
using it.
  Mr. SOUDER. Mr. Chairman, my understanding is that it is a violation 
of Federal copyright law if one is not paying a licensing fee, whether 
or not it is for profit.
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, if the 
gentleman is simply playing it in his office.
  Let me put it this way to the gentleman. There is a commercial nexus 
here. No, not every time one turns on the radio and someone else 
listens does one have to pay the fee. If one turns on the radio in 
one's office and people wander in to talk, one does not owe them a 
thing, and that is the point that some of the opponents I think are 
missing here.
  This is a charge for people who are charging the public to come in. 
Owners of businesses are not irrational, they do not do things 
randomly, at least not as a whole. When the owner of a restaurant plays 
music, he or she does it to enhance the attractiveness of the 
restaurant; it is part of the package of things that bring people in. 
And what we are saying is, yes, if you are going to use other people's 
work product to enhance the attractiveness of your commercial 
establishment, you should pay them something.
  I was surprised to hear this referred to as a tax. I thought a tax 
was when one collected the money for the government. I do not think 
enforcing an obligation that one private owner owes another is a tax. 
People play the music in the restaurants or elsewhere because it brings 
in more customers. If not, there would not be a problem.
  People say, well, it would cost more for the consumer. That is true. 
And if one could get one's food for free, it would be cheaper for the 
consumer. If one could get people to work for free, that would be 
cheaper for the consumer.
  Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Florida.
  Mr. SCARBOROUGH. Mr. Chairman, there is a misperception with what the 
gentleman said, and knowing the gentleman, I know that he did not 
intend to make this mistaken statement, but he is talking about, it is 
going to be a new back-door tax increase, it is going to be a new 
expense. The gentleman was talking about a new expense.
  It is not a new expense. It is existing, it is already there. In 
fact, even this compromise language subtracts how much restaurants 
would have to pay a hundredfold.
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think 
the gentleman is correct. We are talking about enforcing the existing 
obligation, and I guess if we agreed with the gentleman, we would have 
to assume that if the amendment of the gentleman from Wisconsin would 
pass, restaurant prices would drop, because suddenly they would not owe 
as much.
  I do not think anyone in this building believes that.
  Mr. BERMAN. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from California.
  Mr. BERMAN. Mr. Chairman, I guess if the gentleman from Wisconsin had 
offered an amendment saying that everyone who owns a restaurant gets to 
deduct 50 percent of their lease price, the gentleman from Indiana 
would say, in a Republican-controlled Congress, we have to support that 
amendment; otherwise, we will have an unnecessary tax increase on the 
patrons of that restaurant.
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think 
the gentleman is right. We are talking about an existing obligation.
  But I want to talk about what it is all about. What we are saying is, 
if one earns money in part by playing music, then one should share some 
of that with the people whose music one is playing. There was reference 
to the fact that well, it might be played on one television on the 
local station and the network will charge in the long term; yes, 
because they want to make money off of it. Yes, the network makes money 
off the program, they sell advertising, and then the local people do 
it. This notion that there should only be one source of revenue for 
each program does not comport with reality.
  This is the principle: If one is enhancing one's own money-making 
ability, which is a good thing, by playing music and increasing the 
attractiveness of one's place, one owes some small percentage. The 
gentleman calculated that it would only be about 5 percent of income.
  Well, I do not think any of us think a 5 percent reduction in income 
is a minor or trivial matter. If we were talking about .005, maybe we 
would be in that category, but a 5 percent reduction in one's income 
seems to me a significant factor, and we ought not to be doing it.
  I want to stress one other very important point here which will cause 
problems if we adopt the amendment of the gentleman from Wisconsin. We 
spend a lot of time, overwhelmingly supported in this Congress, in 
trying to enforce American intellectual property rights overseas.
  The CHAIRMAN pro tempore (Mr. Gutknecht). The time of the gentleman 
from Massachusetts (Mr. Frank) has expired.
  (By unanimous consent, Mr. Frank of Massachusetts was allowed to 
proceed for 3 additional minutes.)
  Mr. FRANK. Mr. Chairman, as was pointed out by the gentleman from 
Florida, the amendment of the gentleman from Wisconsin, unlike that of 
the gentleman from Florida, abolishes the doctrines of vicarious and 
contributory liability here.
  What that means is that if one is not the one who is actually playing 
the music, even if one is facilitating that in various ways through 
one's economic arrangements with them, we cannot go after them and they 
may have deep pockets.
  Here is the problem. If the United States Congress, in this, so 
substantially diminishes this notion of contributory and vicarious 
liability and exempts people who are making money by playing other 
people's music, or maybe showing other people's movies, or in other 
ways using other people's products, if we exempt them in some ways, we 
drive a hole in our efforts to enforce American intellectual property 
rights overseas that is enormous.
  Think what the People's Republic of China could do with the amendment 
of the gentleman from Wisconsin. All they would have to do is say, 
okay, we are going to take these principles that the American Congress 
has adopted; there will be no vicarious and contributory liability. If 
you catch the individual, that is fine; otherwise, no, there is

[[Page H1478]]

no liability. And if it is only incidental to some other use, there is 
going to be no liability.
  We severely threaten our ability to protect one of the major sources 
internationally by which America profits, and that is intellectual 
property.
  Mr. BERMAN. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from California.
  Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding. Let us 
follow that a little further.
  If a company in Russia proliferates missile technology in Iran, we 
are not going to make the Russian Government responsible. They did not 
make the decision, it was just some company in Russia. It undermines 
every aspect of enforcement here when we eliminate the major inducement 
to do something to ensure the law is not violated.
  Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, let me 
stress that because the doctrines of contributory and vicarious 
liability are not obscure, what they say is, if one has rented the 
premises to people, and as I read the amendment, even if one has rented 
the premises and one knows what they are using them for and one knows 
there is this symptomatic effort to violate other people's rights, one 
is not at all liable.
  I ask Members to think what the People's Republic of China and other 
notorious abusers of intellectual property rights could do with these 
principles, and I guarantee the Members that if we enact these into law 
here in the United States House of Representatives, efforts by the 
United States Trade Representative or any others to enforce 
intellectual property overseas goes down the drain.
  We are talking about movies. We are talking about books. We are 
talking about music. We are talking about a number of very important 
efforts. I do not think that this is an enormous burden.
  By the way, we have heard from restaurant owners. People have said, 
well, it is a problem for appliance owners, this one, that one, 
convention centers. Nobody has heard from the convention centers of 
America complaining about this.
  What this amendment does, the underlying amendment of the gentleman 
from Wisconsin is to make it very, very difficult for us 
internationally to defend our intellectual property rights. The 
gentleman from Florida has responded sensibly to the complaints of 
restaurant owners. He exempts most restaurant owners. He says, if one 
is a larger restaurant and playing this music enhances one's ability to 
make money, one will share a little with those who created it. That is 
a reasonable approach.
  Mr. COBLE. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, about 8 or 9 months ago, 4 or 5 of us from the 
Subcommittee on Courts and Intellectual Property were chatting one 
night, and in the group was the late Sonny Bono. One of the Members, I 
do not recall his identity, but one of the Members said to Sonny, Bono, 
you are a restaurateur, you are a song writer. Who do you support on 
this issue?
  Sonny said, can we not support both? He said, must I reject one in 
favor of the other?
  And I said to him, amen, Sonny.
  The gentleman from Florida (Mr. McCollum) has crafted such a 
compromise, a compromise I am told that the song writers and the 
restaurateurs, neither of whom is completely ecstatic, but both of whom 
can live with.
  I have said before, Mr. Chairman, I am a friend of restaurants in my 
district. Restaurateurs speak to me frequently, and if anybody accuses 
me of trashing restaurants just because I am supporting the McCollum 
amendment, I will meet him in the back lot, because that is simply not 
the case. But restaurateurs come to me and say, this issue is 
important, but there are other issues that are far more vital to us as 
operators of restaurants than music licensing. You all get that over 
with, and there will be other issues on our agenda that we want you to 
visit before you adjourn in the fall.
  We had conducted 2 hearings on this, Mr. Chairman. Fair and open-
minded, we invited all parties who had interest in the matter to 
appear. The second hearing occurred in Washington last July. One of the 
witnesses, a tavern and restaurant owner from Mr. Sensenbrenner's home 
State of Wisconsin, in his testimony in response to a question, he 
admitted that his gross earnings for the current period were in excess 
of $400,000, and he furthermore admitted that his payment to play music 
was $500. Some of the folks almost fell out of their respective chairs 
when he announced that his gross was over $400,000, yet he was only 
required to pay $500.
  Now, I am not suggesting, Mr. Chairman, that that gentleman typifies 
restaurant and tavern owners around the country; I am suggesting that 
he was the witness who was selected to appear by the coalition that the 
gentleman from Wisconsin (Mr. Sensenbrenner) represents.
  Now, Mr. Chairman, these are issues that talk about big business 
versus little business. That is not the case at all, and I tried to 
portray that earlier. I think both sides of the aisle have portrayed 
it, Republicans, Democrats, liberals, conservatives, mugwumps, if there 
are any, everybody has come to the plate on this.
  Mr. CLEMENT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise to express my strong opposition to the amendment 
of the gentleman from Wisconsin (Mr. Sensenbrenner) and also my strong 
support for the McCollum amendment.
  The Sensenbrenner amendment would be devastating to our Nation's song 
writers. Rather than deny their right to make a living, Congress should 
recognize the importance and significance of these gifted and talented 
individuals. As a Representative from Nashville, Tennessee, or as I 
might say it, Music City, USA, I am deeply concerned about this 
amendment's effort to compromise the intellectual property rights of 
our song writers and assault their ability to make a living.
  Mr. Chairman, this amendment devalues the achievements and diligent 
efforts of our song writers and musicians. The property rights of any 
individual should not be considered secondary to the rights of others. 
For Congress to single out song writers would send a signal to both the 
American creative community and to the world at large that intellectual 
property no longer holds any value in the United States.
  John F. Kennedy once said,

       I look forward to an America which will reward achievement 
     in the arts as we reward achievement in business or 
     statecraft. I look forward to an America which will steadily 
     raise the standards of artistic accomplishment and which will 
     steadily enlarge cultural opportunities for all of our 
     citizens. I look forward to an America which commands respect 
     throughout the world, not only for its strength, but for its 
     civilization as well.

  Songs are born in any number of magical and mystical ways. But what 
might appear to take 15 minutes to create often takes 15 years of hard 
work, sacrifice, dedication, practice, and persistence. We should be 
rewarding these creators and not punishing them by the Sensenbrenner 
amendment.
  Mr. Chairman, I strongly urge my colleagues to oppose this amendment 
and support the McCollum substitute amendment in an effort to uphold 
intellectual property rights for all.
  Mr. HEFLEY. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I just want to say that I always thought that we were 
great when we got behind Radio Free Europe and others, and I thought we 
had free radio here in the United States. It is a shame to me that we 
are even arguing over this.
  Mr. Chairman, I yield to the gentleman from Wisconsin (Mr. 
Sensenbrenner).
  Mr. SENSENBRENNER. Mr. Chairman, I thank the gentleman from Texas for 
yielding.
  The gentleman from North Carolina, when he gave his statement, 
referred to the testimony of a Peter Madland who used to be the 
President of the Tavern League of Wisconsin, talking about how big his 
place was and how much his gross income was.

                              {time}  1315

  But what the gentleman from North Carolina did not tell us, and he 
would not yield to me so I could enlighten him, is that under the 
Sensenbrenner amendment, Mr. Madland's establishment would not be 
exempt from paying ASCAP fees.

[[Page H1479]]

  He testified before the subcommittee of the gentleman from North 
Carolina (Mr. Coble) on July 17, 1997, that he has 20,000 to 25,000 
square feet in his establishment. It is a big bar. I have never been 
there, it is in the district represented by the gentleman from 
Wisconsin (Mr. Obey). But the exemption contained in both the McCollum 
amendment and the Sensenbrenner amendment goes to 3,500 square feet, 
and Mr. Madland's establishment is way over that. He does not get a 
free ride. He is going to pay the same ASCAP fee as he has paid before 
because he has a big establishment.
  For the gentleman from North Carolina, having presided over the 
hearing where Mr. Madland testified on how big his establishment is, to 
make a representation that this major operator was going to get a free 
ride I think is regrettable.
  Mr. SAM JOHNSON of Texas. Mr. Chairman, I move to strike the 
requisite number of words, and I yield to the gentleman from North 
Carolina (Mr. Coble).
  Mr. COBLE. Mr. Chairman, I thank the gentleman from Texas for 
yielding to me.
  I want to formally apologize to my friend, the gentleman from 
Wisconsin. Oftentimes, Mr. Chairman, in the heat of debate we become 
embroiled, and I should have yielded to him. But I assume, I would ask 
the gentleman from Wisconsin (Mr. Sensenbrenner), that he is not 
suggesting that my testimony was inaccurate, or is he?
  Mr. SENSENBRENNER. If the gentleman from Texas will yield to me, Mr. 
Chairman, absolutely not. The gentleman from North Carolina (Mr. Coble) 
might have forgotten that Mr. Madland testified on how big his 
establishment is, and might not have made the connection with the 
exemption contained in the Sensenbrenner amendment.
  I am just here to inform the gentleman from North Carolina that Mr. 
Madland would not be exempt, and representations that the operator of 
that big an establishment, whether it is in Chetek, Wisconsin, or 
anyplace else in the country, would be exempt, that person simply has 
not read what is in the text of the Sensenbrenner amendment.
  Mr. Madland pays, and anybody else that has that big an establishment 
would pay under my amendment.
  Mr. COBLE. If the gentleman would continue to yield, Mr. Chairman, I 
just wanted to apologize to the gentleman from Wisconsin (Mr. 
Sensenbrenner) and to the Members. I should have yielded, but we are 
embroiled in this, and for that purpose, Mr. Chairman, I want to get 
that on the record.
  Mr. SCARBOROUGH. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. Chairman, I want to talk about a couple of issues that have been 
brought up. The first has to do with what a good friend of mine, the 
gentleman from Indiana, talked about. He talked about the back-door tax 
increase. Again I want to reiterate to my friends who may be listening 
to this, this is a red herring. It is not a back-door tax increase. It 
is one small business owner paying another small business owner for 
their property, for using their property.
  Secondly, there will be no increase in payments. This is talking 
about an existing payment that has to be done.
  He also talked about the phone system. I think it is very important 
to realize, we talked about incidental use, or we talked about using 
music to enhance business, to make more money. There are marketing 
firms out there that actually get paid to tell dentists what type of 
music to play on their phone systems. I know, because I have a father-
in-law who is a dentist. There are marketing firms who pay people to 
tell law firms what type of music to play on their phone systems to 
help them lure more business, more money.
  It is a means, music is a means to make more money. I think it is 
unconscionable that all these people that have stormed Capitol Hill in 
the name of property rights in 1994, just 4 years later want to take 
away property rights from others, when it is clear that this property 
is being used to make a profit.
  I wonder if these bar and tavern owners that are so offended about 
five different entities actually using the same property to make money 
would be that offended when they charge five people to come into their 
restaurant to use the same property, or 500 people? Or how about the 
Titanic? If we have theater owners who allow people to see the Titanic 
four or five times, do they pay once and get a free pass for the other 
four times they see it? Absolutely not. This is ridiculous. They are 
red herrings.
  Unfortunately, a process was set up where reasoned people could get 
together, could compromise, and regrettably, one party did not want to 
compromise.
  We have heard, talking about apologies on the floor, we have heard 
the McCollum amendment called ``a sham,'' when most reasoned people 
have said that the McCollum amendment was where the two parties were 
going before one party went aside.
  We also heard somebody talked about property rights for songwriters 
being ``a scam.'' That is not the case. We have also heard people 
parade up to the microphone saying they have to go to New York, they 
have to hire a god-awful New York attorney. That is not the case 
anymore. The McCollum amendment makes sure that we have boards go 
throughout the land.
  For those people to suggest that we set up an arbitration system with 
absolutely no oversight whatsoever, we are talking about a wild, wild 
West judicial system with no oversight, with no guidance, and would 
lead to the most bizarre, inconsistent, crazy results. It is dangerous.
  I hear people coming up to the microphone saying, well, there is no 
such thing as a free lunch. Yet, they turn around and advocate an 
amendment that provides a free lunch. We hear people coming up talking 
about how the small restaurants will be hurt.
  Let me tell the Members, again, it needs to be reiterated, CRS has 
estimated a 406 percent increase in restaurants exempted under this 
provision. There is 406 percent of restaurants that will be exempted 
under this provision. Only the largest restaurants will pay any fee. 
The average paid is $30 a month, $30 a month.
  When I hear people come up talking about how this is going to be 
crushing to small business, it is laughable. Small business is using 
this property to make a profit. I am a capitalist, I am a supporter of 
small business. I talk to the restaurant owners, I talk to the 
restaurant owners that elected me, talk to the people that I fought 
against the minimum wage for, talk to the people that I fought for to 
eradicate the capital gains tax.
  I believe in free enterprise. I believe in the free market system, 
and I believe that if somebody has a product that helps somebody else 
make money, then I am all for it. Get it out in the marketplace. But 
let us forget this free market concept. Let us support the amendment 
offered by the gentleman from Florida (Mr. McCollum), and let us make 
sure people get paid fairly for their property rights.
  Let us make sure we do not send the wrong message to China. China 
feels very, very free in taking our property rights, be it CDs or 
software. I do not hear anybody here saying Microsoft should only 
charge once for their program. I have yet to hear one person say that. 
Yet, it is the same concept. If you can copy a Microsoft program over 
and over and over again without paying Microsoft, what is the 
difference there? It is the same exact thing.
  The CHAIRMAN pro tempore. The time of the gentleman from Florida (Mr. 
Scarborough) has expired.
  (By unanimous consent, Mr. Scarborough was allowed to proceed for 3 
additional minutes.)
  Mr. SCARBOROUGH. Mr. Chairman, I ask my conservative brethren that 
came here in 1994 fighting for property rights, if they were to fight 
for Bill Gates' right to make sure that he protects what is his to 
protect, then we do the same thing for the small, struggling 
songwriter.
  Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
  Mr. SCARBOROUGH. I yield to the gentleman from Florida.
  Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding. He 
has eloquently expressed where we are at this point.
  I just wanted the gentleman to yield to bring out the fact that we 
are near the end of this debate, we may have one or two more speakers. 
The bottom line is that what I am offering truly is

[[Page H1480]]

a compromise. I would like to make the point, and drive it home, that a 
great many restaurants are going to be exempted by my amendment. We 
have already talked about a 400 percent increase over the current law.
  These folks have been paying, restaurants have been paying these 
royalties, these fees for years. This is nothing new. We are talking 
about exempting 75 or 80 percent of those restaurants. I think probably 
it will be even more, because in this amendment we bumped up from what 
the negotiated status was, which is what I am trying to offer, pretty 
much, here; we bumped up the number of television sets you can have in 
a restaurant that get you exempted, no matter what your square footage 
is, to four. If you have six speakers in the restaurant you are 
exempted, no matter what your square footage is, how big you are. I 
think that takes care of anything but really big restaurants.
  So I do not know what the squabble is about. We need to pass a 
copyright extension bill, we need to get this debate passed, and we 
need to do what the gentleman has suggested, and that is protect the 
property rights interests of both the small business restaurateur and 
the small business songwriter. Adopting the McCollum amendment 
substitute to Sensenbrenner will do that. His will not do that. It is 
not fair. I thank the gentleman for yielding time to me.
  Mr. SCARBOROUGH. Mr. Chairman, I thank the gentleman for his 
amendment.
  I am reminded by the remark the gentleman from California said a few 
minutes ago, that a lot of people would be absolutely shocked that they 
would be coming to the floor voting for legislation such as the 
gentleman's, an amendment such as that of the gentleman from Florida 
(Mr. McCollum), because we have compromised so much, and yet we are 
still told that is enough.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. SCARBOROUGH. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Chairman, on the international side, 
people have said the restaurant owners should not have to pay because 
someone has already paid for this once, the national TV, et cetera.
  Put that doctrine in the hands of the Chinese or others overseas and 
you say to them, okay, as long as something was once paid for in 
America, this book, this movie, this recording, this CD, then I can 
sell it without paying the owner, and you have destroyed our capacity 
to defend American intellectual property overseas.
  Mr. SCARBOROUGH. It would be absolutely devastating to the computer 
industry, the software industry. It is a dangerous, dangerous 
precedent.
  Mr. GORDON. Mr. Chairman, I move to strike the requisite number of 
words. Mr. Chairman, there has been a lot of rhetoric on both sides of 
this issue. Let me just take a quick moment to try to summarize where 
we are, please.
  The main bill that we are debating today is the Copyright Extension 
Act. What that does is extend the copyrights for music and film in this 
country to the same level of other countries around the world. If we do 
not do this, then the United States is going to lose hundreds of 
millions of dollars in revenue from other countries that should come in 
to the United States.
  That is very reasonable, and I think most everybody agrees with that. 
But then, unfortunately, the gentleman from Wisconsin (Mr. 
Sensenbrenner) has taken this noncontroversial bill and added a 
completely unrelated, very controversial amendment.
  What the amendment offered by the gentleman from Wisconsin (Mr. 
Sensenbrenner) basically says is that unlike the present and the past, 
that restaurants and bars should not have to pay for the music or the 
royalties for the music that they play in their establishments, which 
amounts to just a little over $1.50 a day.
  It really is somewhat amazing that the gentleman from Wisconsin, who 
is a strong property rights advocate, it is really ironic, he would 
never say that these same bars and restaurants should not have to pay 
the supplier for the chairs and tables, for the paint on the walls, for 
the chandeliers, or for anything else that helps them make the 
atmosphere for that particular restaurant or bar. However, for some 
reason they should not have to pay $1.50 a day for the music, knowing 
that if this $1.50 is not worthwhile, if the music does not enhance 
their establishment, they can turn it off. Nobody is telling them they 
have to play it. Only that they need to pay for it if they use it, like 
the tables and chairs.
  Mr. Chairman, the gentleman from Florida (Mr. McCollum) has come 
along and introduced an amendment to that of the gentleman from 
Wisconsin (Mr. Sensenbrenner), a compromise, and is trying to bring 
some rationality to this issue. He is, the gentleman from Florida (Mr. 
McCollum), exempting the smallest bars and restaurants in the country; 
as a matter of fact, two-thirds of the restaurants and bars in the 
country, which is a very reasonable amendment. Because we have to 
remember, if the songwriters are not paid, they cannot produce the 
songs, and when they do not produce the songs, the music is going to 
stop.
  I would like to share with the Members a song that one of the 
songwriters back home has written about this issue. I say to my friend, 
the gentleman from Wisconsin (Mr. Sensenbrenner), I am going to spare 
him me singing this, so I am going to read it here for the gentleman.
  It is ``Dear, dear, U.S. Congress:
  ``Some merchants want to use my song, but they don't want to pay me, 
and I think that is wrong. How would you like to have a job where you 
work hard every day, you love what you are doing, but you don't get any 
pay? I can't give away my songs for free 'cause this is the way I feed 
me and my family. And if you merchants disagree, that's fine. Go write 
your own songs, just don't use mine.''
  Now, Mr. Chairman, let me ask the Members today to keep the music. Do 
not stop the music from coming forward. I support a very reasonable 
compromise offered by the gentleman from Florida (Mr. McCollum) to keep 
the music for all America.
  Mr. BONILLA. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, this is a debate that involves small business, and I 
think all of us who believe in the American way and in driving the 
American economy understand that small business is the backbone of that 
culture that drives the American economy.
  Too often this Congress dumps on them: more regulations, higher 
mandated wages, taxes that are too high. So we have people, for 
example, that are running small restaurants in this country that are 
asking us not to dump on them one more time.

                              {time}  1330

  In my hometown of San Antonio, small businesses and restaurants are 
at the forefront of job creation and economic opportunity. Anyone who 
has visited San Antonio and the River Walk know how these small 
businesses enhance my town's premier tourist attraction.
  These businesses cannot afford in many cases any more ruinous fees. 
This amendment offered by the gentleman from Wisconsin (Mr. 
Sensenbrenner), which I am supporting, provides a reasonable compromise 
to protect jobs while protecting the copyrights of artists.
  Simply put, the Sensenbrenner amendment makes needed changes in 
Federal law by providing for local arbitration of music licensing fee 
disputes. Small businesses will no longer be forced to travel across 
the country to New York to make their case. They could not afford to do 
that anyway. Today's small business has no local recourse. This is a 
more than reasonable compromise the gentleman from Wisconsin is 
offering in his amendment.
  The amendment does not fully exempt businesses from paying royalties 
or change existing penalties. It merely recognizes that changing 
technology makes some of the current fees unfair and represents a 
double charge for licensing.
  Mr. Chairman, I cosponsored H.R. 789, the Fairness in Music Licensing 
Act, because I believe it represents a responsibility compromise. I 
urge my colleagues to please join me in voting for the Sensenbrenner 
amendment, which will help ensure that small business remains the 
engine driving our economy.
  Mr. NADLER. Mr. Chairman, I move to strike the requisite number of 
words.

[[Page H1481]]

  Mr. Chairman, I rise to oppose strongly the Sensenbrenner amendment 
and to support the McCollum amendment to the Sensenbrenner amendment.
  The Sensenbrenner amendment would be essentially a license for 
restaurants, taverns, and other establishments to use songwriters' work 
product, their property, without paying for it. It would be a license 
to steal from America's creative community and, therefore, I must 
oppose it vigorously.
  The late Justice Oliver Wendell Holmes said that, ``It is true that 
the music is not the sole object, but neither is the food,'' referring 
to a restaurant.

       The object is the repast and surroundings that give 
     luxurious pleasure not to be had from eating a silent meal. 
     If music did not pay, it would be given up. Whether it pays 
     or not, the purpose of employing it is profit and that is 
     enough.

  Mr. Chairman, several people have said, and I will say it for myself, 
that I never thought I would come before the House, advocating support 
of an amendment that would exempt an establishment as large as 3,500 
square feet. The McCollum amendment, frankly, I think goes far too far. 
But it is acceptable to the songwriters. I do not think they are 
getting as fair a deal as they ought out of it, but I will support it 
as the best we can get.
  Mr. Chairman, I looked at this issue very carefully when I was a 
member of the Subcommittee on Courts and Intellectual Property of the 
Committee on the Judiciary, and I remember coming to several 
conclusions after hearing from both sides. The first conclusion is the 
question of equity. Ninety percent of songwriters make less than 
$10,000 a year. Many make more, but are still struggling. The average 
restaurant pays $400 to $450 a year for songwriter fees. The average 
income of the restaurant makes that a small proportion, a very small 
proportion, and yet for the songwriters it is very important. So as a 
matter of equity, when something is very important for one side as a 
percentage of their income and very small for the other, it makes sense 
to go with the side that we would really hurt if we went the other way.
  Second of all, and here I fail to see how some of my friends on the 
other side of the aisle can even think of supporting this amendment, we 
are talking here about private property. We are talking about private 
arrangements between one group of property owners, the songwriters who 
own the songs that they have produced, and another group of property 
owners, the restaurant owners who want to purchase the use of those 
songs.
  I am not a total believer in the efficacy of the free market in all 
circumstances, unlike some of my friends on the other side of the 
aisle. But I do believe that before the government should come in and 
pass a law dictating the terms of an arrangement between property 
owners, before we should come in and say some can use that music for 
free and some must pay, there has got to be a very, very strong showing 
of the public policy necessity. There has got to be a showing of why 
the free market and private negotiations cannot work its will to the 
best interest of the economy and the people of the country, as it 
usually does. One has to make a showing why the free market cannot work 
in a situation before we ask for government regulation.
  What do we have here? We have some people coming in, some people who 
are normally great supporters of private property rights and against 
regulation and, based on nothing at all, saying let us dictate the 
terms of the arrangement and say to the restaurant owners they can use 
the other people's property for free.
  Why? What is the necessity? Why do we not trust the market to work 
this out? Why do we not trust the songwriters and the restaurants to 
negotiate deals as they have for the last, I do not know, 70 or 80 
years?
  I see no reason. We hear that here it is a question of secondary use; 
that they have already paid once for it. Well, so what? So what? I 
would not be permitted, none of us would be permitted to purchase a CD 
or a tape of a movie, purchase it, go in and pay $15 for a tape of a 
movie, and then going go to my machine and making a lot of tapes of it 
and selling those. None of us would be permitted to do that. We are 
using that property, and it is exactly the same thing.
  So on these grounds I do not see why we should pass any amendment at 
all on the subject. I will reluctantly go along with the amendment 
offered by the gentleman from Florida (Mr. McCollum) as a reasonable 
compromise, and certainly more reasonable than an attempt, frankly, to 
appropriate the songwriters' property for free, for the benefit of 
restaurant owners.
  Mr. Chairman, I love restaurant owners. I have plenty of them in my 
district. But they are not entitled to the free use of other people's 
property. Period. So I urge my colleagues to oppose the Sensenbrenner 
amendment and support the McCollum amendment to the Sensenbrenner 
amendment.
  Mr. WATT of North Carolina. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, I will not take 5 minutes, but I rise in support of the 
McCollum-Conyers substitute and in opposition to the Sensenbrenner 
amendment.
  I want to address two issues quickly. Number one, I do not think this 
is an issue of big business against small business or a small business 
issue. It seems to me that restaurants are small businesses, but music 
writers are also small businesses. So either way we vote on this, we 
are going to be trying to support, as all of us I believe do, small 
business in this country.
  The second is an argument that I have heard a number of restaurant 
owners advance from time to time that music is just background music, 
and we ought not be obligated to pay for it, even though we are using 
somebody else's work product. And my typical response to that is, if 
what they are saying is true, if this is of no benefit to their 
company, if this is truly background music, cut it off. And if they cut 
it off, then nobody obligates them to pay for the use of it.
  So I just think, as a matter of fairness and equity, that a person 
who has written a song and dealt with that song and put it in the 
stream of our intellectual property ought to be compensated for the use 
of it. And I think the McCollum amendment represents a reasonable 
approach to it. I have some concerns about it also, but I will support 
that substitute and vote against the amendment offered by the gentleman 
from Wisconsin.
  Mr. BONIOR. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Michigan.
  Mr. BONIOR. Mr. Chairman, I thank the gentleman from North Carolina 
(Mr. Watt) for his remarks and support him in his support of the 
McCollum-Conyers amendment. I think the gentleman hit the nail on the 
head when he talked about that these are small businesspeople, all of 
the folks who write songs, who write music for a living. This is an 
important work. It brings great joy and great dignity to our society. 
They pour their heart and soul into their work.
  Mr. Chairman, I am just finishing a book called Lush Life, the story 
of Billy Strayhorn, one of the great song people of our time. And 
reading that gives a sense of the dignity and the tough work, but the 
joyous work of these individuals. And it just seems to me that they 
need as much protection as the folks who own the bars and the 
restaurants and all the other facilities that we have talked about.
  So I thank the gentleman from North Carolina (Mr. Watt) for his 
comments and his remarks, and I hope that we will adopt the McCollum-
Conyers amendment this afternoon.
  The CHAIRMAN pro tempore (Mr. Sununu). The question is on the 
amendment offered by the gentleman from Florida (Mr. McCollum) to the 
amendment offered by the gentleman from Wisconsin (Mr. Sensenbrenner).
  The question was taken; and the Chairman announced that the ayes 
appeared to have it.


                             Recorded Vote

  Mr. SENSENBRENNER. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The CHAIRMAN pro tempore. Pursuant to clause 2 of rule XXIII, the 
Chair announces that he may reduce to not less than 5 minutes the 
period of time within which a recorded vote may be taken without 
intervening business on the Sensenbrenner amendment.
  The vote was taken by electronic device, and there were--ayes 150, 
noes 259, not voting 22, as follows:

[[Page H1482]]

                             [Roll No. 68]

                               AYES--150

     Abercrombie
     Ackerman
     Allen
     Baldacci
     Becerra
     Berman
     Bliley
     Bonior
     Borski
     Boucher
     Brown (CA)
     Brown (OH)
     Bryant
     Callahan
     Canady
     Capps
     Carson
     Clay
     Clayton
     Clement
     Coble
     Costello
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dingell
     Dixon
     Doggett
     Dooley
     Dreier
     Ehrlich
     Engel
     Eshoo
     Evans
     Fattah
     Fazio
     Filner
     Foley
     Forbes
     Frank (MA)
     Frost
     Furse
     Gejdenson
     Gephardt
     Gilchrest
     Gilman
     Goodlatte
     Gordon
     Gutierrez
     Hall (OH)
     Hansen
     Hastings (FL)
     Hefner
     Hilleary
     Hinchey
     Hoyer
     Hunter
     Hutchinson
     Hyde
     Jackson (IL)
     Jenkins
     Kaptur
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     Kim
     Kucinich
     LaFalce
     LaHood
     Lampson
     Lantos
     Lazio
     Levin
     Lewis (GA)
     Lipinski
     Livingston
     Lofgren
     Lowey
     Luther
     Maloney (NY)
     Manton
     Markey
     Martinez
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDade
     McGovern
     McKinney
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Miller (CA)
     Mink
     Moakley
     Mollohan
     Morella
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pascrell
     Paul
     Pease
     Pelosi
     Poshard
     Radanovich
     Rahall
     Rivers
     Rogan
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Scarborough
     Schumer
     Serrano
     Shays
     Sherman
     Skaggs
     Slaughter
     Stokes
     Stupak
     Tanner
     Tauscher
     Thomas
     Thurman
     Tierney
     Torres
     Towns
     Velazquez
     Vento
     Wamp
     Watt (NC)
     Waxman
     Wexler
     Wise
     Yates

                               NOES--259

     Aderholt
     Andrews
     Archer
     Armey
     Bachus
     Baesler
     Baker
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Barrett (WI)
     Bartlett
     Barton
     Bass
     Bateman
     Bentsen
     Bereuter
     Berry
     Bilbray
     Bilirakis
     Bishop
     Blagojevich
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Bonilla
     Boswell
     Boyd
     Brady
     Bunning
     Burr
     Burton
     Buyer
     Calvert
     Camp
     Campbell
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Clyburn
     Coburn
     Collins
     Combest
     Condit
     Cook
     Cooksey
     Cox
     Coyne
     Cramer
     Crane
     Crapo
     Cubin
     Cummings
     Cunningham
     Danner
     Davis (FL)
     Davis (VA)
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Dicks
     Doolittle
     Doyle
     Duncan
     Dunn
     Edwards
     Ehlers
     Emerson
     English
     Ensign
     Etheridge
     Everett
     Ewing
     Farr
     Fawell
     Fossella
     Fowler
     Fox
     Franks (NJ)
     Frelinghuysen
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gillmor
     Goode
     Goodling
     Goss
     Graham
     Granger
     Green
     Greenwood
     Gutknecht
     Hall (TX)
     Hamilton
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilliard
     Hinojosa
     Hobson
     Hoekstra
     Holden
     Hooley
     Horn
     Hostettler
     Hulshof
     Inglis
     Istook
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, Sam
     Jones
     Kanjorski
     Kasich
     Kind (WI)
     King (NY)
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     Largent
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Maloney (CT)
     Manzullo
     Mascara
     McCrery
     McHale
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     McNulty
     Metcalf
     Mica
     Miller (FL)
     Minge
     Moran (KS)
     Moran (VA)
     Murtha
     Myrick
     Nethercutt
     Neumann
     Ney
     Northup
     Norwood
     Nussle
     Oxley
     Packard
     Pallone
     Pappas
     Parker
     Pastor
     Paxon
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pombo
     Pomeroy
     Porter
     Portman
     Price (NC)
     Pryce (OH)
     Quinn
     Ramstad
     Redmond
     Regula
     Reyes
     Riley
     Rodriguez
     Roemer
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Ryun
     Salmon
     Sandlin
     Sanford
     Sawyer
     Saxton
     Schaefer, Dan
     Schaffer, Bob
     Scott
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shimkus
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (OR)
     Smith (TX)
     Smith, Adam
     Smith, Linda
     Snowbarger
     Snyder
     Solomon
     Souder
     Spence
     Spratt
     Stabenow
     Stearns
     Stenholm
     Strickland
     Stump
     Sununu
     Talent
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thompson
     Thornberry
     Thune
     Tiahrt
     Traficant
     Turner
     Upton
     Visclosky
     Walsh
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Weygand
     White
     Whitfield
     Wicker
     Wolf
     Woolsey
     Wynn
     Young (AK)
     Young (FL)

                             NOT VOTING--22

     Brown (FL)
     Cannon
     Cardin
     Conyers
     Ford
     Gonzalez
     Harman
     Houghton
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Kleczka
     McDermott
     Millender-McDonald
     Payne
     Rangel
     Riggs
     Rothman
     Royce
     Schiff
     Stark
     Waters

                              {time}  1400

  The Clerk announced the following pair:
  On this vote:

       Mr. McDermott for, with Mr. Rangel against.

  Messrs. SMITH of Texas, HULSHOF, DICKS, FOX of Pennsylvania, PICKETT, 
THOMPSON, BATEMAN, COX of California, CUMMINGS, BERRY, Ms. STABENOW, 
Mrs. FOWLER, Mr. UPTON and Mr. FARR of California changed their vote 
from ``aye'' to ``no.''
  Messrs. GUTIERREZ, MOAKLEY, SHAYS, Ms. LOFGREN, Mr. STOKES, Mr. RUSH, 
Mrs. MORELLA, and Mr. HINCHEY changed their vote from ``no'' to 
``aye.''
  So the amendment to the amendment was rejected.
  The result of the vote was announced as above recorded.
  The CHAIRMAN pro tempore (Mr. Sununu). The question is on the 
amendment offered by the gentleman from Wisconsin (Mr. Sensenbrenner).
  The question was taken; and the Chairman pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. SENSENBRENNER. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The CHAIRMAN pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 297, 
noes 112, not voting 22, as follows:

                             [Roll No. 69]

                               AYES--297

     Aderholt
     Andrews
     Archer
     Armey
     Bachus
     Baesler
     Baker
     Baldacci
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Barrett (WI)
     Bartlett
     Barton
     Bass
     Bateman
     Bentsen
     Bereuter
     Berry
     Bilbray
     Bilirakis
     Bishop
     Blagojevich
     Bliley
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Bonilla
     Borski
     Boswell
     Boucher
     Boyd
     Brady
     Bryant
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Carson
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Clayton
     Clyburn
     Coburn
     Collins
     Combest
     Condit
     Cook
     Cooksey
     Costello
     Cox
     Coyne
     Cramer
     Crane
     Crapo
     Cubin
     Cunningham
     Danner
     Davis (FL)
     Davis (VA)
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Dicks
     Doolittle
     Doyle
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Etheridge
     Evans
     Everett
     Ewing
     Farr
     Fawell
     Foley
     Fossella
     Fowler
     Fox
     Franks (NJ)
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Goode
     Goodlatte
     Goodling
     Goss
     Graham
     Granger
     Green
     Greenwood
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hamilton
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Hefner
     Herger
     Hill
     Hilleary
     Hinojosa
     Hobson
     Hoekstra
     Holden
     Hooley
     Horn
     Hostettler
     Hulshof
     Hunter
     Hutchinson
     Inglis
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, Sam
     Jones
     Kanjorski
     Kaptur
     Kasich
     Kim
     Kind (WI)
     King (NY)
     Kingston
     Klink
     Klug
     Knollenberg
     Kolbe
     Kucinich
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     Livingston
     LoBiondo
     Lucas
     Maloney (CT)
     Manzullo
     Mascara
     McCrery
     McDade
     McHale
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     McNulty
     Metcalf
     Mica
     Miller (FL)
     Minge
     Mollohan
     Moran (KS)
     Moran (VA)
     Murtha
     Myrick
     Neal
     Nethercutt
     Neumann
     Ney
     Northup
     Norwood
     Nussle
     Obey
     Oxley
     Packard
     Pallone
     Pappas
     Parker
     Pascrell
     Pastor
     Paxon
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pomeroy
     Porter
     Portman
     Poshard
     Price (NC)
     Pryce (OH)
     Quinn
     Rahall
     Ramstad
     Redmond
     Regula
     Reyes
     Riley
     Rodriguez
     Roemer
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Rush
     Ryun
     Salmon
     Sandlin
     Sanford
     Sawyer
     Saxton
     Schaefer, Dan
     Schaffer, Bob
     Scott
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shimkus
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (OR)
     Smith (TX)
     Smith, Adam
     Smith, Linda
     Snowbarger
     Snyder
     Solomon
     Souder
     Spence
     Spratt
     Stabenow
     Stearns
     Stenholm
     Strickland
     Stump
     Sununu
     Talent
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thompson
     Thornberry
     Thune
     Thurman
     Tiahrt

[[Page H1483]]


     Torres
     Traficant
     Turner
     Upton
     Visclosky
     Walsh
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Weygand
     White
     Whitfield
     Wicker
     Wise
     Wolf
     Wynn
     Young (AK)
     Young (FL)

                               NOES--112

     Abercrombie
     Ackerman
     Allen
     Becerra
     Berman
     Bonior
     Brown (CA)
     Brown (OH)
     Capps
     Clay
     Clement
     Coble
     Cummings
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dingell
     Dixon
     Doggett
     Dooley
     Dreier
     Engel
     Eshoo
     Fattah
     Fazio
     Filner
     Forbes
     Frank (MA)
     Furse
     Gejdenson
     Gephardt
     Gilman
     Gordon
     Gutierrez
     Hastings (FL)
     Hilliard
     Hinchey
     Hoyer
     Hyde
     Jackson (IL)
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     LaFalce
     LaHood
     Lampson
     Lantos
     Levin
     Lewis (GA)
     Lofgren
     Lowey
     Luther
     Maloney (NY)
     Manton
     Markey
     Martinez
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McGovern
     McKinney
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Miller (CA)
     Mink
     Moakley
     Morella
     Nadler
     Oberstar
     Olver
     Ortiz
     Owens
     Paul
     Pease
     Pelosi
     Pombo
     Radanovich
     Rivers
     Rogan
     Roybal-Allard
     Sabo
     Sanchez
     Sanders
     Scarborough
     Schumer
     Serrano
     Shays
     Sherman
     Skaggs
     Slaughter
     Stokes
     Stupak
     Tanner
     Tauscher
     Tierney
     Towns
     Velazquez
     Vento
     Watt (NC)
     Waxman
     Wexler
     Woolsey
     Yates

                             NOT VOTING--22

     Brown (FL)
     Cannon
     Cardin
     Conyers
     Ford
     Gonzalez
     Harman
     Houghton
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Kleczka
     McDermott
     Millender-McDonald
     Payne
     Rangel
     Riggs
     Rothman
     Royce
     Schiff
     Stark
     Waters

                             {time}   1414

  The Clerk announced the following pair:
  On this vote:

       Mr. Kleczka for, with Mr. McDermott against.

  Mr. MOAKLEY, Mr. FORBES and Mrs. KELLY changed their vote from 
``aye'' to ``no.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.


                          personal explanation

  Mr. RIGGS. Mr. Chairman, on Rollcall Nos. 68 and 69, I was 
unavoidably detained on other business and unable to be present in the 
House Chamber. Had I been present, I would have voted ``no'' on No. 68 
and ``yes'' on No. 69, respectively.
  The CHAIRMAN pro tempore (Mr. Sununu). Are there any other 
amendments?
  If not, the question is on the committee amendment in the nature of a 
substitute, as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The CHAIRMAN pro tempore. Under the rule, the Committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Gibbons) having assumed the chair, Mr. Sununu, Chairman pro tempore of 
the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 
2589) to amend the provisions of title 17, United States Code, with 
respect to the duration of copyright, and for other purposes, pursuant 
to House Resolution 390, he reported the bill back to the House with an 
amendment adopted by the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on any amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the adoption of the amendment.
  The amendment was agreed to.
  The bill was ordered to be engrossed and read a third time, was read 
the third time, and passed, and a motion to reconsider was laid on the 
table.

                          ____________________