[Congressional Record Volume 144, Number 144 (Monday, October 12, 1998)]
[Senate]
[Page S12434]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         COPYRIGHT LEGISLATION

 Mr. THOMPSON. Mr. President, in the closing days of the 105th 
Congress, the Senate passed two pieces of copyright legislation that 
will have enormous impact. As Charles Dickens might say, it is the best 
of times and the worst of times for those who create the property that 
is protected by copyright.
  First, the Senate passed S. 505, which extended the terms of 
copyrights by 20 years, to life plus 70 years from life plus fifty 
years. For a number of years, our trading partners and competitors have 
protected their copyrights for the life of the author plus 70 years. 
Under the rule of the shorter term, these nations protected American 
copyrights for only the life of the author plus 50 years. The United 
States is the world leader in copyright, and should afford the greatest 
protection for copyrighted works of any nation, both to encourage 
creativity that benefits all, and for our own national interest with 
respect to the balance of trade.
  The extension of copyright terms will be of enormous benefit to 
songwriters and others who create copyrighted works. It will benefit 
the public through enhanced creative activity, and the further public 
performance of already existing works to be enjoyed by future 
generations.
  But S. 505 contained a bitter pill to swallow, the so-called Fairness 
in Music Licensing Legislation. These provisions are terribly unfair to 
those who create music. When a person profits from a public performance 
of music, he or she should fairly compensate the creator of that music 
through royalty payments. This is an elemental necessity for the 
creation of music. To paraphrase Justice Holmes, if music did not pay, 
no one would write it. The average songwriter receives less than $5,000 
per year in royalties, and the average restaurateur pays only a few 
hundred dollars a year to play music in his establishment, about 1% of 
revenues. At the same time, the restaurateur uses music to create an 
ambience that will cause people to come to his establishment, and to 
spend more time and money there than they would without the music.
  But the restaurateurs, retailers, and others wanted something for 
nothing. The songwriters were even willing to help out the mom and pop 
restaurants by exempting broadcast performances of their music in about 
two-thirds of the Nation's restaurants. But that was not good enough 
for the music users, who had the House pass outrageous legislation that 
amounted almost to stealing from the songwriters. A House that purports 
to defend property rights passed the most anti-property rights 
legislation in many years.
  We worked in the Senate to improve that House-passed bill. We 
preserved vicarious liability, a necessity to ensure that royalties are 
paid. We prevented retailers and restaurants from challenging their 
rates in any city they chose, which would have been an unacceptable 
burden on the ability of songwriters to protect their rights. We 
eliminated provisions that would have enabled department stores to use 
music for free. In addition, we increased enforcement of payments 
because a judge can award double the licensing fees for up to three 
years instead of current law's limits of statutory damages.
  But I still have major concerns about S. 505, even with these 
changes. Songwriters' property taken from them and used by others 
without payment. The exemptions are too generous, as they go well 
beyond the interest of small establishments. In fact, the vast majority 
of songwriters are smaller business people than many of the 
establishments that will be exempted from paying royalties by this 
bill.
  At the same time, this bill runs counter to our international treaty 
obligations under the Berne Convention and the TRIPS Agreement. Those 
treaties benefit Americans more than any other country. We have the 
greatest interest in ensuring compliance by all signatory countries 
with these treaties. Yet we have passed a bill that is inconsistent 
with these treaty obligations. What will happen when foreign countries 
do not live up to their promises to protect intellectual property, 
citing our own example of this legislation back to us? Songwriters may 
not be the only losers; copyright protects computer software and other 
non-performing arts creative material. Some of the companies who may be 
hurt by international retaliation may be member companies of 
organizations that insisted on the music licensing provisions.
  Only time will tell if the World Trade Organization will find that 
this bill violates international treaties that are binding on this 
country. But there is a good chance that these unfair music licensing 
provisions will not be able to stand.
  It became clear in the final days of this Congressional session that 
in order to obtain copyright term extension and the WIPO implementing 
legislation, unfair music licensing legislation would have to be 
included. Although the music licensing provisions are considerably 
better than those contained in the House-passed bill, they are still 
unfair. However, the 20-year extension in copyright terms is a 
significant benefit to songwriters, and the WIPO Treaty implementing 
legislation will assist creative artists in the digital age, as well as 
enhance worldwide protection of copyrighted materials. In implementing 
this treaty, it is unfortunate that my colleagues have passed 
legislation that violates our existing treaty obligations.
  Mr. President, there are times when the bad has to be taken with the 
good. The music licensing provisions are indefensible, but a necessary 
cost of obtaining very important legislation for the benefit of 
creative artists. It should not have been this way. I am confident that 
the music licensing issue is not yet over, and I regret the likely 
embarrassment that will ultimately fall upon this body when the 
language it has passed is ruled to violate our treaty 
obligations.

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