[Congressional Record Volume 146, Number 111 (Tuesday, September 19, 2000)]
[House]
[Pages H7771-H7774]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        WORK MADE FOR HIRE AND COPYRIGHT CORRECTIONS ACT OF 2000

  Mr. COBLE. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 5107) to make certain corrections in copyright law, as amended.
  The Clerk read as follows:

                               H.R. 5107

       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 ``Work Made For Hire and 
     Copyright Corrections Act of 2000''.

     SEC. 2. WORK MADE FOR HIRE.

       (a) Definition.--The definition of ``work made for hire'' 
     contained in section 101 of title 17, United States Code, is 
     amended--
       (1) in paragraph (2), by striking ``as a sound 
     recording,''; and
       (2) by inserting after paragraph (2) the following:
     ``In determining whether any work is eligible to be 
     considered a work made for hire under paragraph (2), neither 
     the amendment contained in section 1011(d) of the 
     Intellectual Property and Communications Omnibus Reform Act 
     of 1999, as enacted by section 1000(a)(9) of Public Law 106-
     113, nor the deletion of the words added by that amendment--
       ``(A) shall be considered or otherwise given any legal 
     significance, or
       ``(B) shall be interpreted to indicate congressional 
     approval or disapproval of, or acquiescence in, any judicial 
     determination,
     by the courts or the Copyright Office. Paragraph (2) shall be 
     interpreted as if both section 2(a)(1) of the Work Made For 
     Hire and Copyright Corrections Act of 2000 and section 
     1011(d) of the Intellectual Property and Communications 
     Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) 
     of Public Law 106-113, were never enacted, and without regard 
     to any inaction or awareness by the Congress at any time of 
     any judicial determinations.''.
       (b) Effective Date.--
       (1) Effective date.--The amendments made by this section 
     shall be effective as of November 29, 1999.
       (2) Severability.--If the provisions of paragraph (1), or 
     any application of such provisions to any person or 
     circumstance, is held to be invalid, the remainder of this 
     section, the amendments made by this section, and the 
     application of this section to any other person or 
     circumstance shall not be affected by such invalidation.

     SEC. 3. OTHER AMENDMENTS TO TITLE 17, UNITED STATES CODE.

       (a) Amendments to Chapter 7.--Chapter 7 of title 17, United 
     States Code, is amended as follows:
       (1) Section 710, and the item relating to that section in 
     the table of contents for chapter 7, are repealed.
       (2) Section 705(a) is amended to read as follows:
       ``(a) The Register of Copyrights shall ensure that records 
     of deposits, registrations, recordations, and other actions 
     taken under this title are maintained, and that indexes of 
     such records are prepared.''.
       (3)(A) Section 708(a) is amended to read as follows:
       ``(a) Fees.--Fees shall be paid to the Register of 
     Copyrights--
       ``(1) on filing each application under section 408 for 
     registration of a copyright claim or for a supplementary 
     registration, including the issuance of a certificate of 
     registration if registration is made;
       ``(2) on filing each application for registration of a 
     claim for renewal of a subsisting copyright under section 
     304(a), including the issuance of a certificate of 
     registration if registration is made;
       ``(3) for the issuance of a receipt for a deposit under 
     section 407;
       ``(4) for the recordation, as provided by section 205, of a 
     transfer of copyright ownership or other document;
       ``(5) for the filing, under section 115(b), of a notice of 
     intention to obtain a compulsory license;
       ``(6) for the recordation, under section 302(c), of a 
     statement revealing the identity

[[Page H7772]]

     of an author of an anonymous or pseudonymous work, or for the 
     recordation, under section 302(d), of a statement relating to 
     the death of an author;
       ``(7) for the issuance, under section 706, of an additional 
     certificate of registration;
       ``(8) for the issuance of any other certification; and
       ``(9) for the making and reporting of a search as provided 
     by section 705, and for any related services.
     The Register is authorized to fix fees for other services, 
     including the cost of preparing copies of Copyright Office 
     records, whether or not such copies are certified, based on 
     the cost of providing the service.''.
       (B) Section 708(b) is amended--
       (i) by striking the matter preceding paragraph (1) and 
     inserting the following:
       ``(b) Adjustment of Fees.--The Register of Copyrights may, 
     by regulation, adjust the fees for the services specified in 
     paragraphs (1) through (9) of subsection (a) in the following 
     manner:'';
       (ii) in paragraph (1), by striking ``increase'' and 
     inserting ``adjustment'';
       (iii) in paragraph (2), by striking ``increase'' the first 
     place it appears and inserting ``adjust''; and
       (iv) in paragraph (5), by striking ``increased'' and 
     inserting ``adjusted''.
       (b) Conforming Amendment.--Section 121(a) of title, 17, 
     United States Code, is amended by striking ``sections 106 and 
     710'' and inserting ``section 106''.
       (c) Effective Date.--
       (1) In General.--The amendments made by this section shall 
     take effect on the date of enactment of this Act.
       (2) Carry-Over of Existing Fees.--The fees under section 
     708(a) of title 17, United States Code, on the date of the 
     enactment of this Act shall be the fees in effect under 
     section 708(a) of such title on the day before such date of 
     enactment.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
North Carolina (Mr. Coble) and the gentleman from Michigan (Mr. 
Conyers) each will control 20 minutes.
  The Chair recognizes the gentleman from North Carolina (Mr. Coble).


                             General Leave

  Mr. COBLE. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
on H.R. 5107, the bill under consideration, and to insert extraneous 
material in the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  There was no objection.
  Mr. COBLE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of the Work Made for Hire and 
Copyright Technical Corrections Act of 2000 and urge the House to adopt 
this measure.
  Mr. Speaker, H.R. 5107 is noncontroversial. It repealed an amendment 
in the Intellectual Property and Communication Omnibus Reform Act of 
1999, IPCORA, which inserted sound recordings as a type of work that is 
eligible for work-made-for-hire status.
  Following passage of the amendment in 1999, some recording artists 
argued that the change was not a mere clarification of the law and that 
it had substantively affected their rights. After the gentleman from 
California (Mr. Berman) and I had several meetings and agreed that a 
hearing was in order, the Subcommittee on Courts and Intellectual 
Property subsequently conducted a hearing on the issue of sound 
recordings as works made for hire on May 25, 2000.
  A compromise solution was reached and H.R. 5107 implements that 
solution. It repeals the amendment in question without prejudice. In 
other words, it restores any person or entity to the same legal 
position they occupied prior to the enactment of the amendment in 
November 1999.
  H.R. 5107 states that in determining whether any work is eligible for 
work-made-for-hire-status, neither the amendment in IPCORA nor the 
deletion of the amendment through H.R. 5107 shall be considered or 
otherwise given any legal significance or shall be interpreted to 
indicate congressional approval or disapproval of any judicial 
determination by the courts or the Copyright Office.
  Mr. Speaker, I want to thank the gentleman from California (Mr. 
Berman), the ranking member of the subcommittee; the gentleman from 
Michigan (Mr. Conyers), the ranking member of the full committee; the 
gentleman from Illinois (Mr. Hyde), chairman of the full committee; and 
the gentlewoman from California (Mrs. Bono) on our committee. There are 
others who will speak to this issue who also were helpful.
  H.R. 5107 also includes other noncontroversial corrections to the 
Copyright Act. These amendments remove expired sections and clarify 
miscellaneous provisions governing fees and recordkeeping procedures. 
They will improve the operation of the Copyright Office and clarify 
United States copyright law.
  The manager's amendment to H.R. 5107 that we are voting on today 
makes purely technical and noncontroversial changes to the text of H.R. 
5107 as it was reported from the Committee on the Judiciary. The 
Subcommittee on Courts and Intellectual Property and the Committee on 
the Judiciary support H.R. 5107 in a bipartisan manner, and I urge its 
adoption today.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  My colleagues, this is a great day for musicians who create their own 
music and musicians that perform, and so I am pleased to rise in 
support as a cosponsor of H.R. 5107 because it strikes sound recordings 
from the definition of work made for hire in section 101 of the 
Copyright Act.

                              {time}  1330

  The bill undoes an unfortunate amendment to the Copyright Act made 
last November which changed the act to treat sound recordings as 
``works made for hire.''
  Without the benefit of committee hearings or other debate, the change 
terminated any future interest that artists might have in their sound 
recordings and turned them over permanently to the record companies. We 
have since learned that we should never do business this way.
  After hearing testimony at the subcommittee level, all of the 
interested parties, I am glad to say, the subcommittee members, the 
recording artists and the recording industry itself, agreed that the 
provision was a substantive change in law and should be struck so that 
the law could be returned to the status quo ante. That is what brings 
us here today.
  Returning the law to where it was before November of 1999 will ensure 
that any and all artists' authorship rights are preserved. Fortunately, 
the recording industry has worked diligently with the recording artists 
for the past several months to arrive at mutually agreed language. 
While slightly awkward in its legislative construction, I nevertheless 
want to compliment both parties in their efforts to reach compromise.
  Now, the digital era lends to creators great opportunities for 
marketing their works of authorship and, at the same time, great perils 
of theft of those works. As we try in other legislative contexts to 
protect intellectual property rights in an open system of the Internet, 
we should not be changing the rules of such property rights in the 
middle of the night without hearings or proper committee consideration, 
as happened last year when this provision was first inserted.
  I express my appreciation that we are undoing this unwise change, and 
I thank all of my colleagues that participated in bringing this measure 
to the floor and ask all of the Members of the House to give an aye 
vote on this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. COBLE. Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I am pleased to yield 6 minutes to the 
gentleman from California (Mr. Berman), a very important member of the 
committee that worked on this legislation. He has been in this area for 
many years, and he did very important work in this area.
  Mr. BERMAN. Mr. Speaker, I thank the gentleman, my friend and the 
ranking member of the committee, for yielding me a generous amount of 
time. I would like to do several things in that time.
  First, I would like to commend a number of colleagues who have played 
pivotal roles in moving this important legislation, most specially the 
gentleman from North Carolina (Mr. Coble), the chairman of our 
judiciary subcommittee. He deserves particular praise for his open-
mindedness and his perseverance on this issue. There were times when 
people sought to impugn his motives. Notwithstanding that and the total 
lack of basis for that, he rose above the human tendency to retaliate

[[Page H7773]]

and proceeded ahead, I think, very fairly and in wonderful fashion to 
help us come to this kind of conclusion. Without his efforts, this bill 
would not have had a chance of passing.
  I also want to recognize several colleagues who have played pivotal 
roles: the gentleman from Michigan (Mr. Conyers), the ranking member of 
the Committee on the Judiciary, who has been a champion for the rights 
of recording artists; the gentleman from Virginia (Mr. Boucher); the 
gentlewoman from California (Ms. Lofgren); the gentleman from Florida 
(Mr. Wexler); the gentleman from Massachusetts (Mr. Delahunt); as well 
as two individuals, one on the majority side, the gentlewoman from 
California (Mrs. Bono), who we spent a lot of time on airplanes to 
California discussing this issue, and a non-member of the committee who 
is particularly interested in this issue and the rights of recording 
artists, the gentlewoman from Missouri (Ms. McCarthy).
  Section 2 of H.R. 5107 fulfills an important objective. It returns 
the law on the eligibility of sound recordings as ``works made for 
hire'' to its state prior to November 29, 1999. Equally important, it 
restores the state of the law without prejudicing the rights of any 
affected parties.
  Finally, section 3 of H.R. 5107 makes certain unrelated changes to 
the Copyright Act to improve the operations of the U.S. Copyright 
Office. H.R. 5107 is strongly supported by both Democrats and 
Republicans. The bipartisan support for this bill is not surprising. It 
is wholly nonpartisan in nature.
  H.R. 5107 is also supported by all affected private parties of whom I 
am aware. In fact, the language of H.R. 5107 is the successful outcome 
of several months of negotiations between representatives of the 
recording artists and the reporting industry.
  For this accomplishment we owe a special note of gratitude to Jay 
Cooper and Cary Sherman, who represent the recording artists and 
recording industry, respectively. These gentlemen did yeoman's work and 
sacrificed many hours when they were supposed to be on vacation to 
craft acceptable language under often difficult circumstances and time 
constraints.
  I would also like to thank the recording artists and record companies 
who worked so diligently to build this consensus.
  The substance of H.R. 5107 is relatively easy to explain, while its 
impact is more difficult to express.
  Section 2(a)(1) of this bill would remove the words ``as a sound 
recording'' from paragraph (2) of the definition of ``works made for 
hire'' in section 101 of the Copyright Act, words that this Congress 
added less than a year ago through section 1000(a)(9) of Public Law 
Number 106-113. When Congress enacted section 1000(a)(9) last year, we 
believed it was a non-controversial, technical change that merely 
clarified current law. However, since that time, we have been contacted 
by many organizations, legal scholars, and recording artists who take 
strong issue with section 1000(a)(9), asserting that it constitutes a 
significant, substantive change in law.
  We have discovered that there exists a serious debate about whether 
sound recordings always, usually, sometimes, or never fell within the 
nine pre-existing categories of works eligible to be considered ``works 
made for hire.''
  By mandating that all sound recordings are eligible to be ``works 
made for hire,'' section 1000(a)(9) effectively resolved this debate 
and impaired the ability of creators of sound recordings that argue 
that particular sound recordings and sound recordings in general cannot 
be made ``works made for hire.'' This, in turn, effectively prevents 
creators of sound recordings from attempting to exercise termination 
rights under section 203 of title 17, thus reclaiming their copyrights 
35 years after an assignment of those rights.
  By undoing section 1000(a)(9), section 2(a)(1) of this bill will 
prevent any prejudice to the legal arguments of creators of sound 
recordings. However, we are sensitive that, in undoing that amendment 
made by section 1000(a)(9), we must be careful not to adversely affect 
or prejudice the rights of other interested parties.
  Specifically, we do not want the removal of the words ``as a sound 
recording'' from the definition of ``works made for hire'' to be 
interpreted to preclude or prejudice the argument that sound recordings 
are eligible to be ``works made for hire'' within the nine preexisting 
categories. In essence, we want the removal of the words ``as a sound 
recording'' from section 101 of the Copyright Act to return the law to 
the status quo ante so that all affected parties have the same rights 
and legal arguments that they had prior to enactment of section 
1000(a)(9).
  It is for these reasons that we were convinced of the need to include 
section 2(a)(2) within this statute, which is intended to ensure that 
the removal of the words ``as a sound recording'' will have no legal 
effect other than returning the law to the exact state existing prior 
to the enactment of section 1000(a)(9). With the inclusion of section 
2(a)(2) in this bill, we ensure that courts will interpret section 101 
exactly as they would have interpreted it if neither section 1000(a)(9) 
nor section 2(a)(1) of this bill were ever enacted.
  In short, and in conclusion, we believe passage of this bill is vital 
to ensure that whatever rights the authors of sound recordings may have 
had previously are restored and that such restoration is achieved in a 
way that does not unfairly impair the rights of others.
  Mr. COBLE. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
California (Mrs. Bono).
  Mrs. BONO. Mr. Speaker, I thank the chairman for yielding me the 
time.
  Mr. Speaker, it is my pleasure to stand before my colleagues today to 
speak in favor of H.R. 5107, the Work Made for Hire and Copyright 
Corrections Act of 2000. I am pleased that H.R. 5107 is being 
considered on the floor today, and I support this legislation.
  This bill not only levels the playing field for both artists and the 
recording industry, but it also reverses the 1999 amendment to the 
Copyright Act that would have taken advantage of young artists who are 
not emotionally or financially prepared to sign their recording lives 
away.
  As a member of the House Committee on the Judiciary, which considered 
this legislation, I am pleased that both sides of this debate were 
willing to sit down and draft a proposal that ensures that both the 
authors and the recording industry both benefit from such a well-
conceived compromise.
  I would like to thank the House Subcommittee on Courts and 
Intellectual Property chairman, the gentleman from North Carolina (Mr. 
Coble), and the gentleman from California (Mr. Berman) for their hard 
work, persistence, and wisdom in pursuing a mutual understanding that 
reflects the thoughts and desires of both sides on this issue.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentlewoman from 
Kansas City, Missouri (Ms. McCarthy). No one has worked harder in the 
committee and in the negotiations than she.
  (Ms. McCARTHY of Missouri asked and was given permission to revise 
and extend her remarks.)
  Ms. McCARTHY of Missouri. Mr. Speaker, I rise in support of H.R. 
5107, the Works Made for Hire and Copyright Corrections Act, a 
resolution to rectify a complex and contentious copyright issue for 
recording artists and record companies.
  Just prior to adjournment last year, four seemingly innocuous words 
were added to the Satellite Home Viewers Improvement Act: ``as a sound 
recording.'' But these words were inordinately powerful. Their 
insertion threatened one of our most precious rights, the right to 
claim ownership of one's artistic creations. By inserting ``as a sound 
recording'' into the bill, the work for hire provision of U.S. 
copyright law (revised in 1976) was fundamentally changed to prohibit 
the ownership of a sound recording by its creator after 35 years of 
sometimes onerous exploitation by a record company.
  Typically, after the 35-year term, ownership of these works returned 
automatically to the creator. But these four words denied forever the 
rights of recording artists to own their creative and deeply personal 
expression of themselves they so generously share with the rest of us. 
The words also revised existing law and industry practice and did not 
merely clarify it.
  The measure before us today corrects this injustice and repeals 
without prejudice the change made to U.S. copyright law last year.

[[Page H7774]]

  I commend Jay Cooper, counsel to the artists groups, and Cary 
Sherman, Senior Executive Vice President and General Counsel of the 
Recording Industry Association of America, for their resolute 
commitment to negotiate a mutually agreeable solution.
  I would also like to extend my heartfelt congratulations to the 
recording artists who made Congress aware of the need to restore their 
rights, in particular Don Henley and Sheryl Crow, cofounders of the 
Recording Artists Coalition.
  I also applaud the tireless efforts of the members of the Recording 
Academy, Adam Sandler, and in particular, the Academy's president and 
CEO, Michael Greene. Without their perseverance and tenacity, this 
resolution would not have been reached. I also want to recognize the 
work of Margaret Cone and Susan Riley with the American Federation of 
Television and Radio Artists for their help.
  From the bottom of my heart, I want to thank the gentleman from North 
Carolina (Chairman Coble), the gentleman from California (Mr. Berman), 
and the gentleman from Michigan (Mr. Conyers) of the Subcommittee on 
Courts and Intellectual Property for their active involvement and 
commitment to resolving this work-for-hire issue.
  Mr. Speaker, I am honored to join with members of the Committee on 
the Judiciary as a cosponsor of the legislation and especially with 
three of my colleagues on the subcommittee who also have been an 
integral part of this process: the gentleman from Virginia (Mr. 
Boucher), and the gentlewomen from California (Ms. Lofgren) and (Mrs. 
Bono). I applaud the Committee for working together in a spirit of 
bipartisanship.
  I urge Members of the House to vote yes on this resolution, and I 
urge the Senate to work together as we did for swift passage this 
session.
  Mr. COBLE. Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield 30 seconds to the gentleman from 
California (Mr. Berman).
  Mr. BERMAN. Mr. Speaker, I thank the ranking member for yielding me 
the time.
  Mr. Speaker, I simply wanted to add, while this in some way seems 
like a simple and straightforward proposition, it took a huge amount of 
time. I think it is worth paying special note to the staff, to Debbie 
Rose Aaron Blain, and Sampak Garg, Alec French of the subcommittee 
staff, and Stacy Baird and all the other staffers who worked on this, 
because they did invest a great deal of time; and I think they should 
be commended for that.

                              {time}  1345

  Mr. CONYERS. Mr. Speaker, I yield myself 10 seconds to support the 
observations of the gentleman from California (Mr. Berman) and to 
single out Alec French and Sampak Garg on our judiciary staff who were 
so excellent.
  Mr. Speaker, I yield back the balance of my time.
  Mr. COBLE. Mr. Speaker, I yield myself such time as I may consume.
  In closing, the gentleman from California (Mr. Berman) was very 
generous in his remarks to me. I want to remind my colleagues, there 
were two mules pulling that wagon, and the gentlewoman from California 
(Ms. Lofgren) referred to the two Howards. I refer to us as the two 
mules because it became heavy lifting at times. As has already been 
mentioned, I mentioned the gentleman from Michigan (Mr. Conyers) and 
the gentleman from Illinois (Mr. Hyde). They were both helpful to us. 
The recording industry and the artist community were both helpful.
  Mr. Speaker, there was no ill intent involved with this. The 
Committee on the Judiciary submitted, or dispatched, six conferees, 
three Democrats and three Republicans. All six of us signed the 
conference report. It was my belief that we were merely codifying 
accepted practice, but that is subject to interpretation. With the 
passage of this bill today, I think that both parties, that is, the 
recording industry and the artist community, will both breathe easier, 
particularly the artist community. I too want to thank the staffers. 
Both Democrat and Republican staffers worked very diligently on this 
matter.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I would like to offer comment 
on H.R. 5107, the Work Made for Hire and Copyright Corrections Act of 
2000, for consideration. Under 17 United States Code 203, authors of 
copyrighted works have the right to terminate assignments of their 
copyrights thirty-five years after an assignment. Section 203 is 
designed to ensure that authors, who may have received very little 
compensation for the initial assignment of their copyrights, get a 
``second bite at the apple'' if those copyrights have value after 
thirty-five years.
  Unfortunately, the right to termination cannot be exercised by those 
creators of copyrighted works that are defined as ``works made for 
hire,'' under 17 U.S.C. 101. Under Section 101, a work made for hire 
may be defined as: a work prepared by an employee within the scope of 
employment, or a work specially ordered or commissioned for use as one 
of ten, or in the case of statutorily specified categories of works. 
Statutorily specified work under the condition of a written agreement 
specifying the work shall be considered made for hire then it is 
considered under the conditions of section 101.
  After the enactment of the new copyright law many organizations, 
legal scholars, and recording artists took strong issue with it, 
asserting that it constitutes a significant, substantive change in law. 
However, representatives of record companies and some legal scholars 
strongly disagreed with this position, and insisted that the new 
copyright law merely clarified prior law. The core of the disagreement 
between the opposing sides centers around pre-existing categories of 
works made for hire, and thus the extent to which sound recordings were 
previously eligible to be works made for hire.
  This bill only attempts to return the law regarding copyrighted work 
that was created as ``work made for hire'' to its original state before 
the passage of the 1999 copyright legislation.
  It is my hope that in the next Congress we will have an opportunity 
for hearing and full deliberation in this matter so that artists and 
commercial interest in copyrighted work can both be served by the 
copyright laws of our nation. I support this legislation and urge my 
colleagues to pass this.
  Mr. COBLE. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Isakson). The question is on the motion 
offered by the gentleman from North Carolina (Mr. Coble) that the House 
suspend the rules and pass the bill, H.R. 5107, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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