[Congressional Record Volume 144, Number 143 (Sunday, October 11, 1998)]
[Extensions of Remarks]
[Pages E2088-E2089]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                SONNY BONO COPYRIGHT TERM EXTENSION ACT

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                               speech of

                          HON. JOE SCARBOROUGH

                               of florida

                    in the house of representatives

                       Wednesday, October 7, 1998

  Mr. SCARBOROUGH. Mr. Speaker, I rise in support of Title I of S. 505, 
the Copyright

[[Page E2089]]

Term Extension Act, but rise in opposition to title II of the bill, 
relating to fairness in music licensing. Title II amounts to bad 
legislative decision-making for at least three reasons: (1) it is a 
shortsighted policy; (2) it is potentially an unconstitutional taking; 
and (3) it violates our multilateral treaty obligations which is likely 
to result in trade sanctions of property of songwriters.
  First, by exempting most commercial establishments from paying 
copyright licensing fees for the public performance of music, the 
proposal will radically reduce the royalties that performing rights 
organizations (BMI, ASCAP and SESAC) will collect on behalf of 
songwriters. Admittedly, proponents of eroded protection--those that 
want a free ride off the backs of creators--are numerous and organized. 
But, this is no reason to enact legislation that will extinguish the 
flame of creativity and will chill the progress of science and the 
useful arts.
  Second, the right to own private property free from arbitrary 
government interference is a basic tenet of American life. In fact, the 
right to own property is as ancient as humankind itself, with the 
enforcement of property rights being a part of legal systems worldwide. 
Under our constitutional scheme of government, property cannot be 
``taken'' by government action without just compensation. Although 
debate swirls around the definition of the term ``taking'', common 
sense dictates that the term refers to any acts that diminish or 
deprive any legally protected right to use, possess, exclude others, or 
dispose of one's property, real or intellectual. Title II of the bill 
``takes'' the property of songwriters and ``gives'' it to commercial 
establishments to use without compensation. In my opinion, it is taking 
without due process of law and just compensation and is therefore 
unconstitutional.
  Third, the Secretary of Commerce has already advised Congress that 
fairness in music licensing reform legislation violates our 
international treaty obligations. His words have been seconded by a 
drumbeat of statements from the United States Trade Representative, the 
Register of Copyrights, and the Assistant Secretary of Commerce and 
Commissioner of Patents and Trademarks that an overly broad exemption 
in section 110(5) of the Copyright Act would ``violate our obligations 
under the Berne Convention for the Protection of Literary and Artistic 
Works.'' I believe that Title II will result in a WTO finding that we 
have violated our multilateral treaty obligations.
  For these reasons, I oppose Title II of the bill but because I 
support Title I, I will not ask for a recorded vote.

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