[Congressional Record Volume 144, Number 144 (Monday, October 12, 1998)]
[Senate]
[Pages S12377-S12378]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SONNY BONO COPYRIGHT TERM EXTENSION ACT
Mr. HATCH. Mr. President, I am delighted at the recent passage of S.
505, the Sonny Bono Copyright Term Extension Act. The main purpose of
the bill is to ensure adequate copyright protection for American works
abroad by extending the U.S. term of copyright protection for an
additional 20 years. The late Sonny Bono was an avid supporter of the
bill, and he fully appreciated what its passage would mean to the
American economy. It is therefore an appropriate memorial to this fine
American.
20 years ago, Mr. President, Congress fundamentally altered the way
in which the U.S. calculates its term of copyright protection by
abandoning a fixed-year term of protection and adopting a basic term of
protection based on the life of the author. In adopting the life-plus-
50 term, Congress cited three primary justifications for the change:
(1) the need to conform the U.S. copyright term with the prevailing
worldwide standard; (2) the insufficiency of the U.S. copyright term to
provide a fair economic return for authors and their dependents; and,
(3) the failure of the U.S. copyright term to keep pace with the
substantially increased commercial life of copyrighted works resulting
from the rapid growth in communications media.
Developments over the past 20 years have led to a widespread
reconsideration of the adequacy of the life-plus-50-year term based on
these same reasons. Among the main developments is the effect of
demographic trends, such as increasing longevity and the trend toward
rearing children later in life, on the effectiveness of the life-plus-
50 term to provide adequate protection for American creators and their
heirs. In addition, unprecedented growth in technology over the last 20
years, including the advent of digital media and the development of the
national Information Infrastructure and the Internet, have dramatically
enhanced the marketable lives of creative works. Most importantly,
though, is the growing international movement towards the adoption the
longer term of life-plus-70.
Thirty five years ago, the Permanent Committee of the Berne Union
began to reexamine the sufficiency of the life-plus-50-year term. Since
then, a growing consensus of the inadequacy of the life-plus-50 term to
protect creators in an increasingly competitive global marketplace has
lead to actions by several nations to increase the duration of
copyright. Of particular importance is the 1993 directive issued by the
European Union, which requires its member countries to implement a term
of protection equal to the life of the author plus 70 years by July 1,
1995.
According to the Copyright Office, all the states of the European
Union have now brought their laws in compliance with the directive.
And, as the Register of Copyrights has stated, those countries that are
seeking to join the European Union, including Poland, Hungary, Turkey,
the Czech Republic, and Bulgaria, are likely, as well, to amend their
copyright laws to conform with the life-plus-70 standard.
The reason this is of such importance to the United States is that
the EU Directive also mandates the application of what is referred to
as ``the rule of the shorter term.'' This rule may also be applied by
adherents to the Berne Convention and the Universal Copyright
Convention. In short, this rule permits those countries with longer
copyright terms to limit protection of foreign works to the shorter
term of protection granted in the country of origin. Thus, in those
countries that adopt the longer term of life-plus-70, American works
will forfeit 20 years of available protection and be protected instead
for only the duration of the life-plus-50 term afforded under U.S. law.
Mr. President, as I've said previously, America exports more
copyrighted intellectual property than any country in the world, a huge
percentage of it to nations of the European Union. In fact, in 1996,
the core U.S. copyright industries achieved foreign sales and exports
exceeding $60 billion, surpassing, for the first time, every other
export sector, including automotive, agriculture and aircraft. And,
according to 1996 estimates, copyright industries account for some 5.7
percent of the total gross domestic product. Furthermore, copyright
industries are creating American jobs at nearly three times the rate of
other industries, with the number of U.S. workers employed by core
copyright industries more than doubling between 1977 and 1996. Today,
these industries contribute more to the economy and employ more workers
than any single manufacturing sector, accounting for over 5 percent of
the total U.S. workforce. In fact, in 1996, the total copyright
industries employed more workers than the four leading noncopyright
manufacturing sectors combined.
Clearly, Mr. President, America stands to lose a significant part of
its international trading advantage if our copyright laws do not keep
pace with emerging international standards. Given the mandated
application of the ``rule of the shorter term'' under the EU Directive,
American works will fall into the public domain 20 years before those
of our European trading partners, undercutting our international
trading position and depriving copyright owners of two decades of
income they might otherwise have. Similar consequences will follow in
those nations outside the EU that choose to exercise the ``rule of the
shorter term'' under the Berne Convention and the Universal Copyright
Convention.
The public performance of musical works is one of the copyright
rights that will be benefited by the 20-year extension. But--
ironically--in title II of the bill, Mr. President, we are cutting back
on that right by expanding the exemption that currently exists in the
Copyright Act for ``mom-and-pop'' establishments. Because of the public
performance right, businesses that use music to attract customers are
required to obtain a license. The licenses can be obtained from the
performing rights organizations (PROs), namely, ASCAP, BMI, and SESAC.
The PROs, in turn, pay the owners of copyright in
[[Page S12378]]
the music--music publishers, composers, and/or songwriters--from the
proceeds. Because the rates charged by the two biggest PROs, ASCAP and
BMI, are monitored by the Rate Court of the U.S. District Court of the
Southern District of New York, the rates today amount to a very small
amount per annum per business. The rates are even smaller for the kinds
of performances covered by title II of the bill--performances of music
over television and radio sets that businesses turn on for the benefit
of their customers. And, as I said, ``mom-and-pop'' establishments do
not have to pay anything. Nevertheless, some have sought for over 3
years to eliminate the licensing of music that arrives in a business
establishment through the reception of radio and TV signals.
I have a stellar record in supporting legislation that benefits small
business, but this includes songwriters, who themselves are small
businesses. I have yet to discover a reason to eliminate or even reduce
the charge for the commercial use of some one else's property. In my
view, property is property whether it's dirt or intangible, and I have
always been a defender of property rights.
The associations that want to eliminate the public performance right
for business establishments have held up passage of copyright term
extension for more than three years, although they had no quarrel with
copyright term extension on its merits. Since copyright term extension
is so important to America, Mr. President, I began a series of
negotiations last year to try to resolve the problem. Other
negotiations were begun by others, and, in the end, a compromise was
worked out. This compromise is included in title II of the bill.
Title II greatly expands the current ``mom-and-pop'' exemption in the
Copyright Act. Indeed, data supplied by the Congressional Research
Service reveals that over 65.2% of restaurants will be exempt.
But lest we think that the music licensing issue has been put to bed,
I want to sound a note of caution. Despite the months of negotiations
that produced title II, an unanticipated problem popped up just as a
compromise was reached--the exemption contained in title II applies to
radio broadcasts licensed by the FCC and does not cover Internet radio.
We did not have time to address this problem, and, frankly, the novel
nature of Internet radio precluded a simple solution. This issue
concerns me, however, and I will turn to the music licensing question
again in the future, if I see that a disparity exists between FCC-
licensed radio and Internet radio. I would not want businesses to turn
away from new technology because of artificial forces acting on the
market. If we do turn to this question, we may discover that it is
impossible to integrate Internet radio and TV into the exemption
without modifying its scope.
Nevertheless, Mr. President, on balance, S. 505 is a good bill. I'm
glad it passed, and I'm glad that a compromise was worked out on music
licensing to allow the copyright term to be extended. I thank all who
had a hand in the solution.
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