[Congressional Record Volume 146, Number 127 (Thursday, October 12, 2000)]
[Senate]
[Pages S10498-S10499]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              MAKING CERTAIN CORRECTIONS IN COPYRIGHT LAW

  Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate 
now proceed to the consideration of H.R. 5107, which is at the desk.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 5107) to make certain corrections in copyright 
     law.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. HATCH. Mr. President, with the imminent passage of the work made 
for hire legislation today, I believe a few comments are in order. Last 
year a technical amendment was included in the Intellectual Property 
and Communications Omnibus Reform Act of 1999 which added sound 
recordings to the list of works eligible for, or considered as having, 
the status of works made for hire under the Copyright Act. Works made 
within the scope of employment or large collaborative works such as 
motion pictures are most often accorded the status of works made for 
hire, and the copyright for those works resides in the employer or the 
corporation doing the hiring, such as the movie studio. The status of 
sound recordings had been in some doubt because sound recordings did 
not obtain the status of copyrighted works until relatively recently, 
and, when added to the list of copyrightable works was not added to the 
list of works made for hire.
  When the technical amendment was raised for consideration in the 
conference, our research indicated that the practice of the Copyright 
Office has uniformly been to register sound recordings as works made 
for hire. The technical amendment therefore seemed a reasonable 
codification of the ongoing practice at the Copyright Office, and was 
adopted.
  Soon thereafter, however, it became clear that while the technical 
amendment aligned the code with long-time Copyright Office practice, it 
was not uncontroversial. Indeed many recording artists had believed 
that the work-for-hire clauses of their contracts were unenforceable 
because contrary to the copyright code: i.e., sound recordings are not 
listed as works made for hire. They view their contracts as operating 
as assignments or transfers of copyright. This distinction is important 
because under work-for-hire, the copyright is owned by the record 
company for the life of the copyright and the artists' rights are 
extinguished; under a transfer or assignment, the artist may recapture 
his or her copyright after 35 years and then either renegotiate more 
favorable terms with the same company or sell the remaining copyright 
to another label on more favorable terms. The basic premise of this 
recapture is that the initial assignment of copyright might not fully 
reward the unproven artist who is an unknown quantity in a risky 
business. Once the artist's commercial value is better proven an 
opportunity is given the artist to reap the rewards of his or her 
creations that have stood the test of time. That the assumptions of the 
artists and labels about the status of these works have been 
diametrically opposed might not have appeared until 35 years after the 
1978 effective act of the current Copyright Act, but for this technical 
amendment.
  What ought the status of sound recordings be then? Sound recordings 
can be something of a hybrid art form lying on a continuum between the 
individual author writing a song or book and the motion picture where 
possibly hundreds of employees collaborate on the final work. Sound 
recordings can be more like the former or the latter, depending on the 
circumstances. Because the facts can vary so widely--some albums are 
primarily the product of the producer, some of one artist, some of a 
group, many have hired musicians or technicians who contribute but do 
so as part of their normal employment, some recordings are compilations 
of smaller recordings--it is not clear what general rule would be 
either most fair to all concerned or would most encourage the continued 
creativity of recording artists. Since it may take some time, and will 
require the input of all the affected parties, it seems reasonable at 
this time to undo last years' technical amendment without prejudice to 
either side in case litigation should arise later, while we explore 
whether a more comprehensive rule can be crafted. That is why we have 
made this change today, containing in the legislative language the 
congressional intent that neither enactment prejudice any future 
litigation.

  It is my hope that the dialogue on this issue is beginning, rather 
then ending, with this legislation. I think it is important to avoid 
costly litigation if possible. And I believe it of paramount importance 
that artists are fairly compensated for the work they do. Without the 
creativity of the artist, the record companies would have nothing to 
market, and the audience would have nothing to enjoy. For the sake of 
the future of music, I hope that using new technologies, artists and 
audience can begin having a closer relationship, where artists are 
encourage to stretch themselves creatively and fans are enabled to 
enjoy artists' work more fully. I think a focused conversation on the 
relative roles of artists and label, as well as the artist's role in 
controlling their work in traditional and new media, can hasten that 
day. If the legislative roundabout on the work-for-hire issue concluded 
today can serve as such a beginning, then it has served a useful 
purpose.
  I commend this legislation to my colleagues. At this time I also wish 
to thank my colleagues in the House and Senate who have supported this 
legislation, and the recording artists and labels who have worked 
together on this legislation and who will begin the task

[[Page S10499]]

of exploring what more comprehensive settlement we might reach with 
regard to the status of sound recordings under the copyright law, which 
will allow them to continue their creative works.
  Mr. LEAHY. Mr. President, more than a week ago I came to the floor to 
be sure the record was clear that all Democrats had cleared for final 
passage H.R. 5107, the Work for Hire and Copyright Corrections Act of 
2000. I urged the Senate to take up H.R. 5107 without further 
unnecessary delay. I am glad that the majority has finally decided that 
action on this consensus bill is appropriate. I still do not know what 
caused the unexplained 2-week delay on the Republican side.
  Representatives Berman and Coble deserve credit, along with the 
interested parties, for working out a consensus solution in this 
legislation. The purpose of this bill is to restore the status quo 
ante, as it existed before November 29, 1999 regarding whether a sound 
recording can qualify as a ``work made for hire'' under the second part 
of the definition of that term in section 101 of the Copyright Act, and 
to do so in a manner that does not prejudice any person or entity that 
might have interests concerning this question. The House held an 
oversight hearing to explore this matter earlier this year and 
originated this legislation. This bill restores the law to the same 
place it was before the enactment of section 1101(d) of the 
Intellectual Property and Communications Omnibus Reform Act of 1999, as 
enacted by section 1000(a)(9) of Public Law Number 106-113, so that 
neither side is prejudiced by what was enacted at the end of 1999 or by 
what is being enacted now. This bill does not express or imply any view 
as to the proper interpretation of the work made for hire definition 
before November 29, 1999. Thus, neither the enactment of section 
1101(d) nor this bill's deletion of that language are to be considered 
in any way or otherwise given any effect by a court or the Copyright 
Office when interpreting the work made for hire definition.
  I congratulate Congressmen Berman and Coble on final passage of this 
measure.
  Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the bill 
be read a third time and passed, the motion to reconsider be laid upon 
the table, and that any statements relating to the bill be printed in 
the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 5107) was read the third time and passed.

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