U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

88–722 PDF 2014

MORAL RIGHTS, TERMINATION RIGHTS, 

RESALE ROYALTY, AND COPYRIGHT TERM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COURTS, INTELLECTUAL PROPERTY, 

AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JULY 15, 2014 

Serial No. 113–103 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

HOWARD COBLE, North Carolina, Chairman 

TOM MARINO, Pennsylvania, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

TED POE, Texas 

JASON CHAFFETZ, Utah 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TED DEUTCH, Florida 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

JOE KEELEY, Chief Counsel 

HEATHER SAWYER, Minority Counsel 
(III) 

C O N T E N T S 

JULY 15, 2014 

Page 

OPENING STATEMENTS 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary, 

and Member, Subcommittee on Courts, Intellectual Property, and the Internet .......................................................................................................................... 2

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on Courts, Intellectual 

Property, and the Internet .................................................................................. 4 

WITNESSES 

Karyn A. Temple Claggett, Associate Register of Copyrights, Director of Policy 

and International Affairs, U.S. Copyright Office 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

Rick Carnes, President, Songwriters Guild of America 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

Casey Rae, Vice President for Policy and Education, Future of Music Coalition 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 38 

Michael W. Carroll, Professor of Law, and Director, Program on Information 

Justice and Intellectual Property, American University Washington College 

of Law, and the Public Lead of Creative Commons USA 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

Thomas D. Sydnor II, Visiting Scholar, Center for Internet, Communications 

and Technology Policy, American Enterprise Institute 

Oral Testimony ..................................................................................................... 60 

Prepared Statement ............................................................................................. 62 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from the Directors Guild of America (DGA) and the Writers Guild 

of America, West Inc. (WGAW) ........................................................................... 78 

Prepared Statement of the Library Copyright Alliance ....................................... 82 

Prepared Statement of Public Knowledge ............................................................. 86 

Letter from Sotheby’s, Inc, and Christie’s Inc. and Attachment ......................... 94 

Prepared Statement of the Visual Artists Right Coalition .................................. 111 

(1) 

MORAL RIGHTS, TERMINATION RIGHTS, 

RESALE ROYALTY, AND COPYRIGHT TERM 

TUESDAY, JULY 15, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 1:30 p.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Marino, Goodlatte, Chabot, 

Fartenhold, Holding, DeSantis, Smith of Missouri, Nadler, Conyers, 

Chu, Deutch, DelBene, Cicilline, and Lofgren. 

Staff Present: (Majority) Joe Keeley, Chief Counsel; Olivia Lee, 

Clerk; (Minority) Heather Sawyer, Minority Counsel; and Jason 

Everett, Counsel. 

Mr. COBLE. Thank you again, ladies and gentlemen, for your patience. We’re ready to get underway here. 

The Subcommittee on Courts, Intellectual Property, and the 

Internet will come to order. 

Without objection, the Chair is authorized to declare a recesses 

of the Subcommittee at any time. 

We welcome all of our witnesses today as well as those in the audience. I’ll give my opening statement at this point. 

This afternoon, ladies and gentlemen, the Committee considers 

several issues that focus on the rights of the creator, often referred 

to as the ‘‘little guy.’’ I have great respect for artists and musicians 

in our Nation, and they aren’t always treated as well by the copyright system as they should. Not everyone is big enough to retain 

counsel to fight infringement or a lobbyist to ensure their rights 

are protected as much as the ‘‘big guy.’’ 

Moral rights may not be as large in the U.S. as overseas, but as 

the co-chair of the Creative Rights Caucus, I’ve long believed that 

artists should get the credit they are due. Although vast financial 

rewards do not always follow the vast investment of a creator’s 

time, it doesn’t seem that much of a burden to assure that the creator’s work is recognized, as his is in the first place. Recognition 

may not fully replace financial reward when the mortgage comes 

due, but at least it preserves the ability to earn financial rewards 
2 

in the future time when someone hears that song or for the first 

time sees that photograph. 

As a fan of bluegrass and old time country, and old time bluegrass, for that matter, I’m sure there are a number of artists who 

would like to exercise their termination rights at some point. U.S. 

law has long permitted artists to reclaim their copyright, and it is 

worth learning how the termination process is or is not working 

today. 

As everyone knows, the Committee extended the term of copyright 20 years ago in 1998, and its decision to do so was upheld 

by the Supreme Court in 2003. Two of our witnesses today will 

speak primarily to this issue. 

Finally, the issue of resale royalties, one that my colleague from 

New York has taken a keen interest in. It does seem unfair to visual artists that those who profit from their efforts are usually not 

the artist themselves, but are those who see fine art as a financial 

investment. I would like to learn more about the resale royalty this 

afternoon, but I would say at this time that I am not uncomfortable 

with the notion of a resale royalty. 

Again, thank you for being here. And I am now pleased to recognize the distinguished gentleman from Michigan, the Ranking 

Member of the full Judiciary Committee, Mr. Conyers. 

Mr. CONYERS. Chairman Coble, I thank you very much for recognizing me. 

And to all of our witnesses, we apologize for having so few, but 

we ran out of table space and we couldn’t take on any more, but 

we welcome all of you. 

Because today’s hearing provides an opportunity to examine 

moral rights, termination rights, resale royalties and copyright 

terms. Mr. Chairman, we could have had at least four individual 

hearings on the subject that we are compressing into one. 

During our many times of reviewing the Copyright Act, I believe 

that we should work to ensure that the copyright system provides 

adequate incentives and fairly compensates its creators, and while 

we could probably hold a single hearing on each one of these topics, 

there are several things that should be observed as we study and 

review it today. 

I would like witnesses to examine whether the current approach 

to moral rights in the United States is sufficient. Moral rights refers to non-economic rights an author may have to control their 

copyrighted works. American creators frequently receive moral 

rights protections by entering into private contracts. In 1990, Congress created the only specific moral rights provision in Title 17, 

enacting the Visual Artists Rights Act, which is the first Federal 

provision directly addressing the Berne Convention moral rights 

provisions. 

While the VARA is the only Federal provision to deal with moral 

rights, it only covers visual art works, paintings, drawings, prints 

and sculptures. It also only covers the original copy of the work. 

Many courts, however, have struggled to interpret several provisions of the VARA. One of the major difficulties for the courts has 

been interpreting whether a work rises to the level of recognized 

stature to qualify for protection against any destruction. I would 

like to hear the witnesses discuss their thoughts about whether the 
3 

provisions of VARA are difficult to interpret, and if so, what 

changes might be recommended. 

Additionally, the Lanham Act, has been considered an important 

component of the patchwork approach to moral rights in the United 

States; however, the Supreme Court in Dastar Corp. v. Twentieth 

Century Fox Film, limited the use of Lanham as a basis for moral 

rights protections. The court unanimously held that there is no 

Lanham Act obligation to attribute the original creator or copyright 

owner as the origin of works that are in public domain. 

I would also like to be enlightened by some of you here whether 

they believe the Dastar decision has weakened the United States’ 

protection of moral rights, and if so, what we might need to do to 

address this potential challenge. 

Visual artists operate at a disadvantage under the copyright law 

relative to other artists. In the context of visual arts, moral rights 

concepts have led to the adoption in many countries of a resale royalty. Resale royalties allow artists to benefit from increases in the 

value of their works over time by granting them a percentage of 

the proceeds each time their work is resold. Visual artists are often 

less likely than other artists to share in the long-term financial 

success of their works. Because the United States doesn’t provide 

a resale royalty right, United States artists are prevented from recouping any royalties generated from the resale of their work in 

those countries that do have the resale royalty right. 

And so I commend the Ranking Member Mr. Nadler, for his leadership on this issue by his introduction of House Resolution 4103, 

the American Royalties Act, A-R-T, which would allow American 

visual artists to collect a resale royalty of 5 percent when their artwork is resold at a public auction. This bill would also allow U.S. 

artists to collect royalties when their works of art are sold abroad. 

These royalties would be distributed by visual artists collecting societies, which would be governed, of course, by regulations issued 

by the Copyright Office. 

So, I want to listen carefully from our experts gathered here this 

afternoon, to have to say about increasing the rights of creators for 

all of the topics we will discuss today. 

Creators place a high value on being able to control their own 

works, because these rights are personal, of course, to the creators 

themselves. Specifically for termination rights, we want to hear 

discussion of the 2010 analysis performed by the Copyright Office 

for a legislative change to Section 203 of Title 17, to clarify the 

date of execution of a grant can be no earlier than date of the creation of the work itself. Congress has yet to act on this suggestion, 

and we would like to find out what you think about whether or not 

it’s time to act. 

And for the issue of copyright term, I believe that the current 

length is appropriate, particularly in light of aspects of the law, including, for example, the fair use doctrine that mitigates the impact of any copyright term and I would like to hear whether some 

of you believe that any change to shorten copyright term would put 

the United States works at a commercial disadvantage in the European Union marketplace, which currently has a copyright term 

that mirrors ours. 
4 

And so it is in that spirit that I indeed welcome you here for this 

discussion that will take place this afternoon. 

I thank the Ranking Member, the Chairman, and I yield back 

the balance of my time. 

Mr. COBLE. I thank the gentleman. 

The Chair now recognizes the distinguished gentleman from Virginia, the Chairman of the full Judiciary Committee, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

This afternoon, the Subcommittee continues our review of our 

Nation’s copyright laws with a hearing on moral rights, termination rights, resale royalty, and copyright term. 

The U.S. joined the Berne Convention in 1998, a full 101 years 

after the convention was first drafted. The U.S. Government stated 

at the time of exesion that a combination of several of our then existing laws met the requirements of the Berne Convention, including the Lanham Act that was said to protect the right of attribution; however, only a few years after the signing of this convention, 

the Supreme Court in 2003 held that the Lanham Act did not, in 

fact, protect the right of attribution. Most commentators have described the American moral rights system as a patchwork of laws. 

So as the Subcommittee continues its copyright review, we should 

consider whether current law is sufficient to satisfy the moral 

rights of our creators or, whether something more explicit is required. 

Turning to the longstanding issues of termination rights and 

copyright term, I look forward to hearing about the impact of existing U.S. law in these areas and whether improvements can be 

made. Many of you know that the Register of Copyright has made 

several suggestions in these areas. 

Finally, the Copyright Office has recently released a lengthy new 

report on the resale royalty issue in which it changed its position 

on the merits of such a right from an earlier 1992 report. Legislation has been introduced on this issue on several occasions to allow 

visual artists to benefit from their works similar to other creators. 

This is an important issue for many visual artists. 

I look forward to hearing more from our witnesses today about 

all of these important issues. 

And, again, I thank all of you for appearing before this Subcommittee this afternoon. 

And I yield back to the Chairman. 

Mr. COBLE. I thank the gentleman. 

The Chair recognizes the distinguished gentleman from New 

York, the Ranking Member of this Subcommittee, Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

Today we consider a broad range of existing legal protections for 

artists and creators, including the moral rights of attribution and 

integrity, the right to terminate a transfer or license of one’s works 

under the copyright term. 

Congress has taken some steps to address these issues, and I 

welcome the opportunity to hear from our witnesses about how our 

current laws are working and what, if any, changes might be necessary and appropriate. 
5 

I also welcome this chance to examine resale royalties for visual 

artists. To date, Congress has failed to adopt a resale royalty right, 

a right which would grant visual artists a percentage of the proceeds each time their work is resold. Unlike other artists, for example, songwriters and performing artists who may receive some royalties whenever their works are reproduced or performed, our visual artists currently benefit only from the original sale of their artwork. This means that the artist receives no part of the long-term 

financial success of the work. For example, if a young artist sells 

a work of art for $500 at the beginning of his or her career and 

the same work is later sold for $50,000, the original artist gets 

nothing. It is the purchaser, not the artist, who benefits whenever 

the value of the artist’s work increases. 

The Berne Convention, to which the United States is a signatory, 

makes adoption of the resale royalty right optional, but does not 

allow artists in any country that fails to adopt this right to benefit 

from resale royalties in any other country. Because we do not provide this right, American artists are prevented from recovering any 

royalties generated from the resale of their works in countries that 

have resale rights. Seventy other countries now provide resale 

rights, including the entire European Union. 

Concerned about this lack of fairness for American artists, I have 

introduced a bill, H.R. 4103, the ‘‘American Royalties Too (ART) 

Act,’’ clever acronym, to correct this deficiency and injustice in the 

law. The ART Act provides for resale royalty of 5 percent to be paid 

to the artist for every work of visual art sold for more than $5,000 

at public auction. The royalty would be capped at $35,000 for 

works of art that sell for more than $700,000. The royalty right is 

limited to works of fine art that are not created for the purpose of 

mass reproduction. Covered artworks include paintings, drawings, 

prints, sculpture, and photographs in the original embodiment or 

in a limited edition. Small auction houses with annual sales of less 

than $1 million are exempt. 

I firmly believe that the time has come for us to establish a resale royalty right here in the United States. I’m not alone in this 

belief. The national arts advocacy organization, the Americans for 

the Arts, supports this legislation. So too does the Visual Artists 

Rights Coalition, VARC, which includes the Artists Rights Society, 

the Visual Artists and Galleries Association, the American Society 

of Illustrators Partnership, the National Cartoonist Society, the Association of American Editorial Cartoonists, and the Association of 

Medical Illustrators, among others. Especially for the politicians 

who are Members of this Committee, beware of the wrath of the 

Association of National Cartoonists. 

The United States Copyright Office, which once opposed adopting 

a resale royalty right, also now supports ‘‘congressional consideration of a resale royalty right, or droit de suite,’’ and pardon my 

French pronunciation or non-pronunciation, ‘‘which would give artists a percentage of the amount paid for a work each time it is resold by another party.’’ 

In its report in December of last year, Resale Royalties and Updated Analysis, the Copyright Office observed that visual artists 

operate at a disadvantage relative to other artists. It also noted 

that many more countries had adopted resale royalty laws since its 
6 

1992 report recommending against adoption of this right, and that 

the adverse market effects it feared might result from resale royalty laws have not, in fact, materialized. 

I welcome and look forward to hearing more from Karen 

Claggett, the Associate Register of Copyrights and Director of Policy and International Affairs, who is testifying on resale royalty on 

behalf the Copyright Office at the hearing today. 

By adopting a resale royalty, the United States would join the 

rest of the world in recognizing this important right and because 

these other countries have reciprocal agreements, they would then 

pay U.S. artists for works resold in their countries. This would ensure that in addition to resale royalties for works resold in this 

country, American artists would also benefit whenever and wherever their works are sold, whether in New York or London or Paris. 

Serious consideration of resale royalty right is long overdue. 

And I thank Chairman Coble and Chairman Goodlatte for including this issue as part of the Subcommittee’s review today of the 

Copyright Act. 

With that, I look forward to hearing from our witnesses, and I 

yield back the balance of my time. 

Mr. COBLE. I thank the gentleman. 

We have a distinguished panel today, whom I will now introduce. 

If you all will please rise, and I will administer the oath of office 

to you. 

[Witnesses sworn.] 

Mr. COBLE. I thank you for that. You may be seated. 

And let the record reflect that all witnesses responded in the affirmative. 

Our first witness this afternoon is Ms. Karyn Temple Claggett, 

Associate Register of Copyrights and Director of Policy and International Affairs at the U.S. Copyright Office. In her position, Ms. 

Claggett advises the Register of Copyrights, Congress and Executive Branch agencies on domestic and international matters of 

copyright law and policy. She received her J.D. from Columbia University School of Law and her bachelor’s degree from the University of Michigan. Ms. Claggett, good to have you with us. 

Our second witness, Mr. Rick Carnes, President of the Songwriters Guild of America. In his position, Mr. Carnes oversees the 

organization’s music creator and administration program. He currently serves as professor of music business and musical composition at Middle Tennessee State University, and he received his 

education from Memphis State University. Mr. Carnes, good to 

have you with us as well. 

Our third witness, Mr. Casey Rae, Vice-President for Policy and 

Education at the Future of Music Coalition, he is also a musician, 

recording engineer, educator, journalist and talking head. Mr. Rae 

received his degree in jazz composition from the University of 

Maine. Mr. Rae, good to have you with us, sir. 

Our fourth witness is Professor Michael Carroll, Professor of Law 

and Director of the Program of International Justice and Intellectual Property at the American University in Washington, Washington College of Law. Professor Carroll’s research focuses on the 

history of copyright music and balancing intellectual property law 

over time in the face of new technologies. He received his J.D. from 
7 

the Georgetown University Law Center and his bachelor’s from the 

University of Chicago. Professor, good to have you with us as well. 

Our final witness is Mr. Thomas Sydnor, Visiting Fellow, at the 

Center of Internet, Communications and Technology Policy at the 

American Enterprise Institute. Prior to AEI, Mr. Sydnor served as 

counsel for intellectual property and technology to Chairman Orin 

Hatch of the Senate Judiciary Committee. He received his J.D. 

from Duke University School of Law and his bachelor’s degree from 

the Ohio State University. 

Mr. Sydnor, my law school is located nine miles from your law 

school. I will hold you harmless if you hold me harmless. 

Mr. SYDNOR. I will do so. 

Mr. COBLE. It can be a delicate exchange, as you know. 

Good to have all of you with us. Folks, you will notice there are 

two timers on your desk. When the red light changes to amber, 

that is your warning that you have a minute to go. You won’t be 

severely punished if you go beyond the minute, but try to keep it 

within the minute if you can. 

Ms. Claggett, we’ll let you be our leadoff hitter. 

TESTIMONY OF KARYN A. TEMPLE CLAGGETT, ASSOCIATE 

REGISTER OF COPYRIGHTS, DIRECTOR OF POLICY AND 

INTERNATIONAL AFFAIRS, U.S. COPYRIGHT OFFICE 

Ms. CLAGGETT. Thank you. 

Chairman Coble, Ranking Member Nadler and Members of the 

Subcommittee, thank you for the opportunity to appear before you 

today to discuss the issue of resale royalties. The Copyright Office 

published an updated analysis on the subject in December 2013, 

our first review of the issue in more than 20 years. 

In simple terms, a resale royalty gives visual artists a percentage 

of the proceeds when their works are resold. Internationally, resale 

royalty rights are included in the Berne Convention, which the 

United States joined in 1989. However, under Berne, these rights 

are optional and reciprocal, meaning that no country is required to 

provide resale royalties under the treaty, but if it does not, its citizens may be precluded from collecting royalties even if their art is 

resold in countries where the right exists. 

The concept of a resale royalty develops because of the somewhat 

unique way in which certain visual artists are affected by the copyright system. Although visual artists, like all authors, enjoy the 

same exclusive rights set forth in the Copyright Act, as a practical 

reality, many visual artists are unable to fully benefit from exploitation of those rights. 

Unlike other copyrighted works, such as books and music, which 

are reproduced and sold in thousands, if not millions of copies, 

works of fine art are typically valued for their originality and scarcity. While it is true that some visual artists may sell mainstream 

reproductions or adaptations of their work, for example in the form 

of posters, these are often not a substitute for the fine art market, 

and under the First Sale Doctrine, visual artists will not ordinarily 

control or benefit from the resale or later display of their works. 

This means that visual artists derive most of their compensation 

from that initial sale and they are often excluded from the more 

significant profits that their works may generate over time. 
8 

A resale royalty allows an artist to benefit from the increased 

value of her work. For example, if an artist initially sells a work 

to a collector for a hundred dollars, and over time the artist’s popularity increases such that the work is later resold for, say, $10,000, 

assuming a resale of 3 to 5 percent, the artist would receive $300 

to $500 from the later sale under such a system. 

Since its inception in France in 1920, many other countries 

around the world have enacted resale royalty rights. Currently, 

more than 70 countries have adopted some form of resale royalties. 

Several other major economies, such as Canada and China, are also 

considering a resale royalty. This international trend is compelling, 

and because of reciprocity requirements, it means American artists 

are often not being paid. 

The Copyright Office first studied the issue of resale royalties in 

detail in 1992. Although we didn’t recommend adoption of a resale 

royalty at that time, we noted that Congress might want to take 

another look at the issue if resale royalties were adopted throughout the European community. In 2001, the European Union did 

just that and harmonized resale royalty laws across Europe. We 

were, thus, gratified that we were asked to review the issue again 

by Representative Nadler and then Senator Cole. 

In our more recent review, we concluded that visual artists may 

indeed operate at a disadvantage under the copyright law and that 

Congress may wish to consider resale royalty legislation to address 

this disparity. We highlighted the number of new countries that 

have enacted resale royalty laws. We also cited intervening studies 

failing to find demonstrated market harm in those countries with 

such a right. At the same time, we acknowledged that a resale royalty right is not necessarily the only or best option to address the 

position of visual artists under the copyright law. We also made 

some specific recommendations to include in any resale royalty legislations. 

We were pleased that the current American Royalties Too bill 

adopted a number of the office’s recommendations, including a relatively low price threshold for eligibility, a royalty rate that is consistent with international practice, a cap on the royalties available 

from each sale, and a request for further study from the Copyright 

Office, always a good thing. 

The issue of resale royalties is that its core an issue of fundamental fairness. Should visual artists be able to receive some compensation from the substantial increases in the value of their 

works over time to help ensure a fair return on works that are 

uniquely produced. Indeed, Congress has emphasized the concept of 

fair return as an appropriate consideration in copyright policy. 

The current termination provisions also being discussed today 

are specifically designed to allow all authors an opportunity to further share in the economic success of their works. These termination rights, however, may have little benefit for visual artists. 

Undoubtedly, the issue of resale royalties still raises complex 

questions. The true benefits of a resale royalty are difficult to accurately quantify and there are concrete administrative and logistical 

concerns that Congress may want to consider in reviewing this 

issue. For that reason, we also proposed alternative options Con-
9 

gress may wish to consider as a way to support and sustain visual 

artists. 

We, at the Copyright Office, look forward to assisting the Subcommittee as it continues to consider this issue and during the 

overall process of copyright review. 

Thank you. 

[The testimony of Ms. Claggett follows:] 
10 
11 
12 
13 
14 
15 
16 
17 
18 

Mr. COBLE. Thank you, Ms. Claggett. 

Mr. Carnes. 

TESTIMONY OF RICK CARNES, PRESIDENT, 

SONGWRITERS GUILD OF AMERICA 

Mr. CARNES. Yes. Thank you, Chairman Coble and Ranking 

Member Nadler for this opportunity to testify on moral rights and 

issues of enormous importance to American songwriters. 

My name is Rick Carnes and I’m President of the Songwriters 

Guild of America. SGA is the Nation’s oldest and largest organization run exclusively by and for songwriters and has been advocating for the rights of music creators since 1931. 

Do I need to turn this up? It got turned off for some reason. 

I’m a professional songwriter living and working in Nashville for 

over three decades. And while I’ve been fortunate enough to have 

had a modicum of success in my career, writing number one songs 

for Garth Brooks and Reba McIntyre, along with songs recorded by 

Dean Martin, Alabama and Loretta Lynn, among others, I am constantly aware of how copyright law controls my fate. More importantly, I’m concerned about the fates of my fellow music creators, 

many of whom, like my students at Middle Tennessee State University, are just starting out and may never have the opportunity 

to earn a living in their chosen professions. 

I am told that the term ‘‘moral rights’’ is the translation from the 

French term droit moral. Pardon my French, I’m not good at that. 

The concept relies on the intrinsic connection between an author 

and his or her creations. Moral rights are not easy to define, but 

they are generally regarded as protecting the personal, 

reputational and monetary value of a work to its creator. Many 

songwriters think of the connection to their songs as almost familial, as if each song we write is our baby, and we hope that one day 

the little fellow will grow up and make a name for himself and be 

able to earn a living. 

Throughout the world, an author is generally thought to have the 

moral right to control his or her work. This concept is reflected not 

only in national laws, but in international treaties and is part of 

the Universal Declaration of Human Rights, a basic restatement of 

natural laws to which the United States and most countries of the 

world are signatories. Although not specifically referred to as moral 

rights in the United States, the U.S. Copyright Act and other intellectual property-related statutes frequently incorporate moral 

rights concepts into American law. 

Now, I want to, you know, express I’m not French or a lawyer, 

so I’m not here to define the scope or definition of moral rights in 

domestic or international law, how it is or should be, but what I 

am is a professional songwriter, and the one thing we songwriters 

know something about and write frequently about, is what’s right 

and what’s good and what’s bad. 

And first and foremost, I want to point out the bedrock of moral 

rights principles is that a creator has the right to control the use 

of something he or she has created and to receive attribution for 

such, and these are rights that I have personally noted are widely 

embraced in the American public. 
19 

SGA applauds this fact, but also notes its longstanding support 

for the incorporation of various free speech concepts into the U.S. 

Copyright Act through the Fair Use Doctrine. On that point, I simply want to stress the importance of balance. Just as we never 

want to inhibit the free exchange of ideas and opinions in our society, we should similarly never allow the Fair Use Doctrine to 

threaten to overwhelm, control attribution and economic rights of 

creators, whereby the exception swallows the rule of protection. 

The Fair Use Doctrine, in other words, should just be left alone. 

In that same vein, it’s axiomatic that evaluating any proposals 

for expanding compulsory licensing of musical works to include the 

use of compositions and sound recordings in compilations known as 

mash-ups, the current system of combining the control of rights of 

creators with the rights under the Fair Use Doctrine have been 

more than adequate in creating a licensing marketplace that addresses and satisfies the needs of copyright users, including creators of derivative works and compilations. That system does not 

need to be nor should it would be disturbed. Similarly, suggestions 

that the United States should break with the rest of the world to 

reduce the current term of copyright protection should just be rejected outright. 

Having commented on the moral rights related areas about 

which the SGA asked Congress not to act, I would like to take this 

opportunity to reiterate SGA’s past statements in staunch support 

of the right of termination already enshrined in U.S. copyright law. 

SGA continues to believe that it is one of the most important reflections of moral rights Congress has ever included in American 

law. Congress has recognized that the value of musical works cannot be adequately determined at the time of their creation, and 

thereby, fairness and morality dictate that there must be a right 

of termination for creators. 

Finally, I would like to note the five key principles that SGA has 

identified on page 5 of our written hearing statement that I strongly believe are necessary for a moral copyright system that treats 

songwriters with dignity and respect. 

SGA truly appreciates the efforts of the Subcommittee on behalf 

of music creators. We look forward to working with you to revise 

U.S. copyright law in ways that help maintain the moral right of 

an essential connection between music creators and their works. 

Thank you. 

[The testimony of Mr. Carnes follows:] 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 

Mr. COBLE. Thank you, Mr. Carnes. 

Mr. Rae. 

TESTIMONY OF CASEY RAE, VICE PRESIDENT FOR POLICY 

AND EDUCATION, FUTURE OF MUSIC COALITION 

Mr. RAE. Members of the Subcommittee, it’s an honor to appear 

before you today to offer my perspectives on copyright issues that 

impact creators and the public. 

My name is Casey Rae and I’m the Vice-President for Policy and 

Education at Future of Music Coalition, a national non-profit education and research organization for musicians. In addition to my 

work in artist advocacy, I’m also a musician and I teach a course 

at Georgetown University on music technology and policy, so music 

is my life and it always has been. 

One of my earliest memories is drumming along on the side of 

a crib to Bee Gees records. I do wish it was something cooler, but 

you guys just put me under oath, so I have to tell you the truth. 

Most of my friends and peers are musicians, and those who 

aren’t, probably wish they were. It’s a colorful crowd that encompasses pretty much every view under the sun, personal, political 

and otherwise, so I feel very privileged that my job here in Washington is to help advance the artist’s perspective, where it’s crucial 

that those voices are heard. 

For 14 years my organization, Future of Music Coalition, has observed the changes to traditional industry business models, helping 

artists understand how policy and marketplace developments affect 

their livelihoods. 

On copyright issues, we tend to be pragmatic. We believe that 

musicians and songwriters should have a choice in how they exploit 

their copyrights, as well as the ability to reach audiences and take 

part in emerging innovations. Musicians are not a monolithic 

group, but my own experiences as part of this community have 

given me a sense as far as what’s at stake on some of the issues 

you’re considering today. 

I’d like to talk for a minute about termination rights. There is 

no question that termination rights, that musicians, songwriters, 

composers are eligible to terminate grants transferred after 35 

years under Section 203. Unfortunately, this statutory right is 

often muddied by major labels that want us to believe that sound 

recordings are somehow not part of the provisions that Congress 

laid out in 1976. While it’s true that the act exempts certain categories of works, it’s absurd to think that Congress intended to exclude recording artists from this fundamental right. It’s my view 

and also the view of the great many artist advocates, legal professionals and copyright scholars that Section 203 applies to all expressive works and authors. Current statute allows creators to file 

to reclaim their copyrights, and that right is important to maintain. 

At FMC, we think that artists should be empowered to make informed choices, so we’ve tried to demystify the termination process, 

but the important thing to remember here is that these are fundamental artist rights, and they’re crucial rights, not just for today’s 

artists, but for those yet to come. 
36 

Termination rights allow us to have another bite at the apple 

even if we end up regranting our rights to a label, publisher or another entity. Artists may have more leverage than they did at the 

time when they first signed, and using that leverage, we can negotiate more favorable deals or recapture ownership for the purposes 

of licensing directly. 

These rights are especially important today, given the evolution 

of the marketplace. For example, we now have an expanded range 

of licensing opportunities and uses that are still on the horizon. 

One huge development is the ability to sell music directly to fans. 

As an artist, I want to be able to participate directly in revenue 

streams generated from the use of my work, and that’s something 

I hear from other creators as well. Termination rights are part of 

our leverage and help ensure that we receive fair compensation. 

I’ve heard the major labels’ arguments that sound recordings are 

not eligible for rights recapture, and they simply don’t pass muster. 

If an artist is an employee, why aren’t they provided with a retirement package or health insurance benefits like executives or even 

office assistants? 

It’s important for those who make a monetary investment in creativity to have an opportunity to gain a return on that investment, 

but a grant of copyright isn’t the only way for that to happen. Today’s artists aren’t under an obligation to transfer their rights as 

a condition of entering the marketplace. I’m encouraged by new 

partnerships between artists and companies, sometimes labels, 

that don’t involve copyright transfer, but instead employ limited licensing or other arrangements. That said, if a full grant of copyright makes sense for an artist to achieve their goals, more power 

to them, but they must be able to benefit directly at a later point 

in the life of that copyright, and Congress has decided that that 

point is after 35 years. 

There’s two things that Congress can do here: first, make it plain 

that sound recordings are unambiguously eligible to termination; 

second, ensure that termination rights aren’t undermined in international treaty agreements like the Trans-Pacific Partnership. 

I’d now like to very quickly touch on two other issues before the 

Committee. Copyright terms are an ongoing topic of debate. That 

said, the Supreme Court did make its call, and we have life plus 

70; one reason is that the international community was trending 

in that direction, and we obviously want other countries to respect 

and honor our copyrights. 

I also believe that it’s important for statutory errors to benefit 

from the creative labors of their loved ones, but I don’t feel that 

terms should be extended any further; however, Congress might 

want to consider new proposals, for example, U.S. Register of Copyrights, Maria Pallante, recently offered a proposal that would involve a re-registration after 50 years. Perhaps there could be a provision in which if the copyright owner doesn’t come forward to reregister, the author has the opportunity to do so before that work 

enters the public domain. 

Lastly, moral rights are tricky. Artists in America definitely embrace free speech traditions and fair use, because they allow us to 

freely and creative express ourselves, but I can say the attribution, 

as part of a moral rights package, is something that’s supported by 
37 

every artist that I’ve ever spoken to, so if Congress can help with 

attribution, the creative community would likely respond favorably. 

Once again I thank the Committee for the opportunity to share 

my views and those of Future of Music Coalition and our allies. I’d 

be happy to answer any questions that you might have. 

[The testimony of Mr. Rae follows:] 
38 
39 
40 
41 
42 
43 
44 

Mr. COBLE. Thank you, Mr. Rae. 

Professor Carroll. 

TESTIMONY OF MICHAEL W. CARROLL, PROFESSOR OF LAW, 

AND DIRECTOR, PROGRAM ON INFORMATION JUSTICE AND 

INTELLECTUAL PROPERTY, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW, AND THE PUBLIC LEAD OF CREATIVE COMMONS USA 

Mr. CARROLL. Thank you, Mr. Chairman, Ranking Member Nadler and Members of the Subcommittee for inviting me to participate 

in this hearing. 

My name is Michael Carroll. I’m a law professor at American 

University, Washington College of Law. I’m also on the board of directors of a non-profit organization called Creative Commons, and 

I’m the lead of Creative Commons U.S.A., which is the United 

States chapter, if you will, for the organization. 

I want to make a few remarks about Creative Commons and 

then about the copyright term. Creative Commons was founded on 

the proposition that one size does not fit all. We’ve heard a little 

bit already about creators, but copyright is an automatic right applied to every work of authorship, and authors come in all shapes 

and sizes and are motivated by a variety of motivations. 

What Creative Commons did is create six copyright licenses that 

any creator can use to share their works with the public. The sharing is royalty free, but it is subject to certain conditions and in 

those conditions, we’ve learned a little bit that touch on some of the 

issues in the hearing today. 

So one of the issues is creators want attribution. So even the 

most liberal of the Creative Commons licenses still require that you 

give the creator attribution as they direct. 

Other conditions can include the requirement that you share 

alike any derivative works that are created or that you can’t create 

derivative works or that you limit your uses to non-derivative 

works. 

As you surf the internet, I will find more than 500 million works 

subject to these licenses. Every time you visit Wikipedia, you are 

experiencing a Creative Commons licensed work of authorship, 

which is the product of multiple different authors, motivated more 

by the desire for attribution than they are for compensation. 

We also have a little experience with the termination of transfer 

rule. Many authors would like to reclaim their copyrights, not for 

the purpose of compensation, but to make them available on the 

internet and those authors face an administrative gauntlet when 

they try to terminate their rights. And when they get to the end 

of that, they have to pay a filing fee of $105 for every work of authorship, or if they package it, a little bit less than the Copyright 

Office. And we’d ask whether the Subcommittee would consider a 

proposition that would waive that for the purpose of an author who 

wishes to share their work publicly rather than to try to monetize 

it. 

Finally, with respect to the copyright term, as I’ll mention in a 

minute, the copyright term is far too long and some copyright owners feel like they want the option to get out of the copyright sys-
45 

tem. We created a copyright waiver called CC0, that allows the 

copyright owner to give up their copyright. 

I would say that there is some question that some people have 

under U.S. law about whether one can truly dedicate the copyrighted work to the public domain or whether it is merely a transfer that is subject to the termination right. It would be very helpful 

if the Subcommittee would take up a measure that would clarify 

that a copyright owner has the right to permanently dedicate the 

copyrighted work to the public domain in advance of the expiration 

of copyright. 

Finally, with respect to the term of copyright, copyrights have to 

expire. The constitution says so. Congress’s power to grant the exclusive right to authors in their writings is for a limited time. That 

limited time currently lasts for the life of the author plus 70 years. 

From an economic perspective, to promote the progress of science 

means to provide a sufficient incentive for both the creator and the 

investors in the creative process to make a fair return on that investment. Life plus 70 is far longer than necessary to achieve that 

goal, and all of—the brief of the five Nobel laureate economists 

submitted in the Eldred v. Reno case in the Supreme Court makes 

this clear. For the purpose of brevity, I adopt my—I incorporate by 

reference the entirety of Justice Breyer’s dissenting opinion in that 

case, which lays out all of the reasons why copyright term is too 

long. 

As a practical matter, there are reasons why shortening the term 

may be difficult, but Representative Lofgren in 2003 and then 

again in 2005 offered a middle ground solution called the Public 

Domain Enhancement Act, which is what my co-panelist, Mr. Rae, 

was referring to that Maria Pallante supported. The idea is that 

after life plus 50, if the copyright owner still wants those last years 

of protection, they have to show us that they care. So just register. 

Just pay a dollar to the Copyright Office and Register, and you can 

get the remainder of the term. That would be compliant with international law, but it would put more works into the public domain 

quicker and so we’d get a little bit more of the balance. 

And with that, I conclude. Thank you very much for the opportunity to address this Subcommittee. 

[The testimony of Mr. Carroll follows:] 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 

Mr. COBLE. Thank you, Professor. 

Mr. Sydnor, we have a vote on now, but I think we’ll have time 

to get your statement in, and then we’ll go vote and promptly return, but you’re recognized. 

TESTIMONY OF THOMAS D. SYDNOR II, VISITING SCHOLAR, 

CENTER FOR INTERNET, COMMUNICATIONS AND TECHNOLOGY POLICY, AMERICAN ENTERPRISE INSTITUTE 

Mr. SYDNOR. Thank you, Mr. Chairman and Members of the 

Committee. 

My name’s Tom Sydnor. I am a Visiting Scholar at the Center 

for Internet, Communications and Technology Policy at the American Enterprise Institute. I’m testifying here today in my personal 

capacity, and I’d like to thank you for the opportunity to appear 

during the Subcommittee’s review of copyright law. 

And I am here today in part because AEI recently—the center 

asked me to look at a fairly simple question. The issue of copyright 

term has long been very controversial. I hope those controversies 

do not necessarily distract the Committee’s review from what I consider to be a more critical problem, and that is that right now 

today on the internet, with mass piracy being what it is, too many 

creators find that the practical term of their copyright protection 

is better measured in days or hours than decades. That enforcement problem is fundamental to the operation of the copyright system, and I hope the Subcommittee’s review will continue to focus 

on it. 

As far as the issue of term goes, many of the controversies surrounding it have really centered around the fact that it has 

changed over time, and there are competing explanations for that. 

We start out, for example, in 1790 with a 28-year maximum term 

of copyright protection; today under our current laws, the average 

term would be 95 years. It’s a significant change, and the question 

is why did it occur. Some say it’s all just special interest lobbying, 

others say that the changes have been principled. 

So what I have been doing with AEI is looking into those and 

trying to figure out, why did copyright term change over time, to 

what principles did those changes respond. The answer is fairly 

straightforward. If you look at the Copyright Act of 1790, the one 

that signed into law by President Washington and also James 

Madison, the others members, the other framers in the first Congress, if you look at its term-related provisions, you’ll see two principles revealed there. 

One, they wanted copyright term to last through the lifetime of 

an author plus a potentially short postmortem author period of protection. 

Second, the framers looked into international norms. The termrelated provisions of the 1790 Act are closely modeled on the best 

international model available to them, Britain’s 1710 Statute of 

Anne. Those principles for calculating term have not changed over 

time. They’re the same ones we use today. 

What has changed over time is the consequences of applying 

them to the situations that have changed over time. So for example, the framers’ first principle, copyright protection needs to extend through the lifetime of the author, dictated change in copy-
61 

right term over time. People began living longer. Today the average 

human life expectancy has increased about over 100 percent since 

1790. Those changes necessitated increases in copyright term. That 

is what happened in the Copyright Act of 1831, that also appears 

to be the principal driver for the extension of copyright term in the 

Copyright Act of 1909. 

The other factor that explains why copyright term has changed 

is the second principle that the framers looked to, and that’s looking to international norms. In the Copyright Act of 1976, we joined 

the Berne Convention—we moved towards—I’m sorry. We adapted 

our term provisions toward those in the Berne Convention. And a 

principle underlies the Berne Convention’s approach to calculating 

the postmortem author period for copyright protection. Basically 

you could call it three generation copyright protection: copyrights 

should last through the lifetime of the author, the author’s children, the author’s grandchildren, those likely to have known the 

author and heard their expressive intentions personally. 

This is a sensible approach to copyright term and those two factors; increasing life span of authors and the change in the principles we use to calculate the postmortem author period, can account for the changes in copyright term that we have seen since 

the first copyright that came along in 1790. Those changes have 

been principled. The decision in the Copyright Term Extension Act 

to go to a system of life plus 70 was in part a response to the Berne 

Convention’s 1948, established in 1948, rule of the shorter term. 

We have again looked to international norms as we have evolved 

our copyright laws. 

So I do believe the evolution of copyright term has been principled and the laws we have today make sense and that will certainly not end all controversies, but I do hope it helps inform the 

Committee’s review. Thank you. 

[The testimony of Mr. Sydnor follows:] 
62 
63 
64 
65 
66 
67 
68 
69 

Mr. COBLE. Thank you, Mr. Sydnor. 

We have a vote on the floor, folks, so we will be back on or about 

20 minutes. So you all rest easy in the interim, and we’ll see you 

shortly. 

[Recess.] 

[3:21 p.m.] 

Mr. MARINO [presiding]. This hearing will now come to order. I 

believe that everyone has made their opening statement. Is that 

correct, Mr. Sydnor? You made your opening statement? I had to 

step out for a moment. I had someone in the hall. 

Mr. SYDNOR. Yes, I did. 

Mr. MARINO. Okay. So now comes the time for our questioning, 

and I am going to as I traditionally do, I will go last regardless of 

who shows up and ask if my colleague, the Ranking Member, Mr. 

Nadler, would begin by asking you questions. 

Mr. NADLER. Well thank you, Mr. Chairman. 

Let me begin by asking a few questions of Ms. Clagett. How 

many other countries have a resale royalty for artists? 

Ms. CLAGGETT. We surveyed the international world to see how 

many resale royalties have been adopted, and we counted more 

than 70 countries with resale royalty rights. 

Mr. NADLER. And France first created this in 1920? 

Ms. CLAGGETT. Yes. They were the first country. 

Mr. NADLER. This is not a new concept? 

Ms. CLAGGETT. Not at all. 

Mr. NADLER. We have got plenty experience with it? 

Ms. CLAGGETT. Yes. 

Mr. NADLER. You mentioned in your testimony that the EU, the 

European Union, extended royalties to all EU member states. Do 

you agree that this constitutes a growing international consensus 

that artists deserve to benefit when their works of visual art are 

resold? 

Ms. CLAGGETT. Yes. As you mentioned this is an issue that has 

been debated and looked at since 1920, and it is something that 

more recently a number of countries have adopted. We counted just 

in the time between our 1992 report and our 2013 report, more 

than 30 countries adopting a resale royalty right. 

Mr. NADLER. More than 30 countries in the last dozen years, or 

20 years? 

Ms. CLAGGETT. Right. 

Mr. NADLER. Now, why do you believe there is a compelling 

international trend that makes U.S. review of the resale royalty 

timely an important? 

Ms. CLAGGETT. Because of the number of countries that are actually adopting a right. As I mentioned in my testimony, since the 

resale royalty right under the Berne Convention is reciprocal, that 

does in some sense work to disadvantage of American artists twice 

that is where they can be at a disadvantage because they don’t actually have resale royalties in the United States, but they are also 

disadvantaged because they don’t have the ability to actually take 

royalties in countries that do have the right and since more and 

more countries are adopting a right, that serves to put them at a 

disadvantage. 

Mr. NADLER. At a greater and greater disadvantage? 
70 

Ms. CLAGGETT. Yes. 

Mr. NADLER. Have you reviewed the American Royalties Too Act? 

Ms. CLAGGETT. Yes. 

Mr. NADLER. Does the legislation incorporate many of the recommendations of the Copyright Office, and do you believe it would 

benefit artists without harming the art market or unduly burdening auction houses that already administer resale royalties in 

other countries? 

Ms. CLAGGETT. We were certainly very pleased that the American Royalties Too Act adopted a number of our recommendations. 

As we had said in our report, we wanted to make sure that a royalties bill would be able to address the most number of artists with 

the least amount of harm to the art market, so some of the recommendations that were taken in the American Royalties Too Act, 

including the low eligibility threshold, the cap on a royalty rate, 

further study to see how things would operate in the market, were 

really key recommendations that we were very pleased that the bill 

adopted. 

Mr. NADLER. So from the experience in other countries and from 

your examination of the bill, do you believe that it would harm the 

art market? 

Ms. CLAGGETT. We were not able to find any direct studies or 

empirical evidence that a resale royalty bill would, in fact, harm 

the art market. That was one of the things we raised in our report. 

Mr. NADLER. When you say you haven’t found any empirical evidence—— 

Ms. CLAGGETT. No. 

Mr. NADLER [continuing]. In countries that have adopted it? 

Ms. CLAGGETT. Right. For example, the European Union did a 

study in 2011, I believe. The UK did a study in 2008. The UK, 

which is one of the largest art markets in the world, their study 

concluded they couldn’t find any harm or diversion in the art market from the UK after the adoption of a resale royalties right. 

Mr. NADLER. Now, you say that at its core the issue of resale royalties is an issue of fundamental fairness. Why do you believe it is 

critical for visual artists to be able to receive some compensation 

from the substantial increases in the value of their works over 

time? 

Ms. CLAGGETT. Well, it just goes back to the underlying premises 

of our copyright system, that by receiving economic compensation 

for the fruits of their labor, for their work, they will be incentivized 

to create more works and resale royalties helps to provide additional benefits for artists. They can use the payments that they receive from royalties to reinvest in their art and to be able to conduct their work full-time as an artist. 

Mr. NADLER. Now, in your testimony, you say, and I quote, ‘‘the 

office also cited studies indicating that the adverse market harms 

that have been predicted to result from such laws, had not materialized in countries that had enacted resale royalty legislation.’’ 

Why do you think that these adverse market harms that had been 

predicted to result from resale royalty works did not occur in the 

countries that enacted this kind of legislation? 

Ms. CLAGGETT. I think that one of the reasons is just the fact 

that a resale royalty is actually only going to be one small factor 
71 

that will affect the art market. These studies highlighted the fact 

that there are a number of factors that will affect, you know, where 

the market will be. 

For example, there are other fees and commissions that are often 

imposed on art transactions that also affect the art market. You 

can’t focus just on a resale royalty. Buyers commissions, for example, in auction houses are much higher than a resale royalty. I 

think the UK report noted that the cost of shipping art overseas 

actually might in some sense be more than a resale royalty. So, 

there are a lot of factors in how the art market operates, and trying to pin it on a resale royalty is something that, at least the studies we reviewed, weren’t able to do. 

Mr. NADLER. So the harms that were predicted did not occur? 

Ms. CLAGGETT. Yes. 

Mr. NADLER. And my last question really is, the large auction 

houses, specifically Sotheby’s and Christie’s, are lobbying against 

this bill very hard. They are saying it will harm the art market as 

it hasn’t done abroad. Are the big auction houses doing okay in the 

art market and sales abroad where they have the resale rights? 

Ms. CLAGGETT. I wouldn’t want to speak on the auction houses, 

I will say that we did note in our report that the auction houses 

had, for example, recently increased their buyer’s commission, 

which is another fee that is imposed on art transactions, and the 

art market was able to accommodate that fee without being 

harmed in any specific way. 

Mr. NADLER. So we have a robust market and an unfairness, and 

fixing the unfairness by passing this bill would not appear either 

theoretically or from experience over the last 20, 30 years to harm 

that market in any way? 

Ms. CLAGGETT. No. I mean, we did note that there are some continuing studies going on. For example, the UK is in the process of 

doing another study that we would obviously want to be able to 

consider as we review this issue, but for the work that we have 

done so far, we haven’t been able to find any evidence that there 

would be a significant harm in the market. 

Mr. NADLER. So we should join the rest of humanity in this respect. Thank you very much. 

I yield back. 

Ms. CLAGGETT. Thank you. 

Mr. MARINO. Chair recognizes Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman. 

I would like to begin with the Songwriters Guild president, and 

could you explain from your perspective how moral rights, specifically the rights of at attribution and integrity are important to the 

song writing community. 

Mr. CARNES. Yes. Certainly attribution is incredibly important if 

you are going to establish some sort of credibility as a songwriter. 

You know, songwriters sort of labor in the back stage part of the 

music business to begin with. So what we really need is for somebody somewhere to know that we wrote those songs and if we don’t 

have for instance, our names on the title and then our names underneath the title on some sort of album cover, or nowadays it is 

videos. They’ll show the video and if they don’t attribute the work 

to us, then we lose the you know, the credibility of being the writer 
72 

that wrote that song and unfortunately, most of the public thinks 

that the artists write all of their songs by themselves, and because 

of that it makes it harder for us to establish our careers. 

In terms of right of integrity, certainly when you have a song 

that is about something that you feel is significant and it is you 

know, like I had a song it was about my mother and the death of 

my mother. It was very important to me. I wouldn’t want to see 

that song played on you know, YouTube with somebody getting hit 

in the crotch with a baseball bat, for instance. I think that there 

are uses of songs that do actually hurt the integrity of the song, 

and that actually affects not just the moral rights but the economic 

value of the song. 

Mr. CONYERS. Well, thank you so much. 

Let me ask Mr. Rae of any recommended steps that we and the 

Congress may take to help with the attribution for moral rights? 

Mr. RAE. One of the issues that has bedeviled the music industry 

for a long time is the fact that we don’t have a lot of good information about who owns what, which is a fundamental first stage problem. 

And the second stage is also, yes, absolutely for the purposes of 

compensation, for the purposes of just being recognized for your 

work and having opportunities to get new work from that recognition, attribution is an important component. I think that within the 

area of attribution, also extending to termination rights and even 

copyright terms, all of our current tensions in the music industries 

at least, could be somewhat relieved by having better informational 

management systems. 

In a previous hearing on music licensing, a colleague Jim Griffin, 

spoke about ways forward to get those information systems in 

place, and I think that there could be a requirement for attribution 

in certain use environments that would be very, very helpful to 

musicians and songwriters. 

One of the issues from our research into sampling and remix culture, for example, has demonstrated very clearly that in many instances, even if it is not remuneration, that a recording artist 

seeks, it is certainly attribution. So I think attribution is a very important area that Congress could work to clarify. Any efforts in 

that direction would be greatly enhanced by having better informational systems about who owns what music, who performed on 

what songs and who wrote those songs. 

Mr. CONYERS. Mr. President of the Songwriters, do you think 

there needs to be more clarification on who owns what? 

Mr. CARNES. Well, yes, there does need to be, but it is very difficult to determine who is going to control that information, how 

difficult and costly it is to actually gather that information, how to 

get the societies that might have that information to cooperate with 

each other, what the data format might be for all that information 

to be shared and what systems will control it. It is a great concept. 

It is hard to actually effectively get that concept to work in the real 

world. I approve of the idea, certainly. 

Mr. CONYERS. So there is work going on to make sure that it improves? 

Mr. CARNES. Yes. We have been seeing that unfortunately go on 

for years and years and years. 
73 

Mr. CONYERS. Been going on for a while? 

Mr. CARNES. Uh-huh. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I will turn back any time that remains. 

Mr. MARINO. The Chair recognizes Mr. Smith. 

Mr. SMITH OF MISSOURI. Thank you Mr. Chairman. 

Mr. Carnes, it is a pleasure for you to be before our Committee 

as a songwriter who has wrote some songs for my favorite musical 

artist. I am not going to say her name, but she is clearly the queen 

of country music and let’s just say I can’t even get the blues no 

more. 

Mr. CARNES. There you go. 

Mr. SMITH OF MISSOURI. But my question would be, how does 

one balance the free speech principles with an artist’s desire to control downstream uses of his work? 

Mr. CARNES. Well, copyright itself has all kinds of protections for 

free you know, for free speech and First Amendment rights. As a 

matter of fact, copyright is the driver of free speech I think, and 

then you know, the Supreme Court has agreed with that. 

In terms of copyright limiting free speech, it is not free speech 

we are limiting. It’s, we have a unique expression. Like if I write 

a song about love, it is my unique expression of love. I am not 

keeping anybody else from writing a song about love. Right? So I 

think that all the protections for First Amendment free speech are 

in the copyright law because it is about my unique expression. I 

am not limiting anyone else’s expression. 

Mr. SMITH OF MISSOURI. Perfect. Thank you. 

Mr. Rae, in your testimony you talked about the term of copyright. In your opinion, what effects would extending the term of 

copyright do for independent artists and creators? 

Mr. RAE. I think one of the things that really needs to be addressed here is how do we advance fundamental respect for copyright, because at the end of the day, even for a small creator, especially for a small creator, copyright is one of the tools, perhaps one 

of the more important tools that you have at your disposal, to get 

paid and to protect your rights. 

The issue here is that in the public mind, perhaps wrongly, many 

people believe that copyright has been extended only for the benefit 

of corporations. So I think perpetuating that idea is very, very difficult, and I think further term extensions might actually exacerbate that fundamental disconnect from the value of a creative work 

and who benefits from its exploitation. 

I would like to see balance restored to copyright so we could feel 

confident that artists have an ability to be cut into the value generated from their works under whatever term Congress or you 

know, the Supreme Court previously decided, but certainly not at 

a point where it starts to cheapen the value of copyright in the eyes 

of the public that also benefits from its availability. 

Mr. CARNES. If I may interject real quickly because this is very 

near and dear to my heart, the copyright term. 

I would like to point out that when we talk about perhaps reducing the copyright term or making some sort of formalities happen 

at 50 years, it is time to stop and remember that the actual effective term of copyright right now with the piracy that is going on, 
74 

is from the time I write the song and the first recorded version of 

it gets uploaded to the internet, because the second it goes up 

there, I lose control of the copyright. 

Copyright becomes a voluntary opt-in system now because I have 

no effective way to enforce my copyright because I have to make 

a Federal case out of actually suing someone for infringement, and 

I don’t have a quarter of a million dollars to sue. Okay, so it becomes prohibitively expensive. If we had some sort of small claims 

venue perhaps, you know, like the Copyright Office is doing a study 

about that now, that might be a way in which we could actually 

enforce our rights. So that’s all I’m saying. 

The term of copyright we should just leave where it is right now 

because, like I say, it has been shortened drastically by piracy. 

Mr. SMITH OF MISSOURI. Thank you. 

Mr. Sydnor, would you like to respond to that question? 

Mr. SYDNOR. Certainly. Thank you. 

I think Mr. Rae made an important point when he said that public perceptions of copyright term may perhaps, wrongly, I think 

that the last two laws is the product of special interest lobbying. 

The simple truth of the matter is the term we have right now is 

there for reasons. We evolved to it for reasons that have never 

changed during the history of the republic. 

It is a sensible way of limiting copyright, basically cutting off 

copyright term during a period defined by the lives of the people 

who knew the author and his or her work personally, and are likely 

as an economic matter to be best situated to be able to decide how 

to exploit the expressive value of the work, which is what copyright 

protects. 

So what I hope my research helps clarify is that, in fact, what 

we have seen a principled evolution of copyright term where the 

principles haven’t changed. The consequences of applying them 

have, and I think that has given us the copyright term that we set 

out to create. 

Mr. SMITH OF MISSOURI. Thank you, Mr. Chairman. 

Mr. MARINO. Ms. Clagett, I am going to ask you a question, and 

if anyone else would like to respond to it down the line, please do 

so. 

There is a legal term, and I am sure you are aware of it of rule 

of perpetuity. Some countries allow, it is the law that family members will continue to inherit from a piece of work if there is something to inherit, meaning that the owner or the owner’s family will 

keep that in their possession forever. Would you please give me 

your insight on the up side or the down side to that concept? 

Ms. CLAGGETT. Well, with respect to copyright law, there certainly would be a down side if you were able to keep control forever. That would be against our Constitution which provides for a 

limited term of copyright and would upset the balance that our 

founding fathers had in terms of providing for economic rights for 

authors but also ensuring that public works or creative works 

would be disseminated to the public. 

Mr. MARINO. Anyone else? 

Mr. SYDNOR. One comment, I guess. I think Ms. Clagett is right. 

Obviously our copyright term has a limit, it can be and copyrights 
75 

are descendable. They can transfer down to descendants and survivors of descendants. It has been that way clearly since 1831. 

And the other point that might be worth mentioning on this, that 

it ties in with, we have been discussing termination of transfers in 

this hearing. It is also important to realize that in evaluating some 

of the controversies about termination of transfers, I do think it is 

important to recognize what it replaced. What it replaced was the 

two-part system of an initial and a renewal term of copyright protection that we relied on from 1790 until 1978. 

We replaced that system because it was intended to do what termination of transfers were intended to do. It was intended to provide a benefit for the artist, but people turned out to be not very 

good at marking their calendars 28 years in advance, and as a result, it simply ended up with a lot of copyrights, artists not having 

their copyrights at all. 

So termination of transfers is certainly a better way to pursue 

a goal that we have consistently, that has been part of our copyright law since 1790. 

Mr. CARROLL. I would just like to add I think that in the question it is implied that this idea of property is the same when we 

talk about land and when we talk about copyrights, and they are 

really quite different because scarce resources and ownership over 

scarce resources is different than ownership over information rights 

and that the founders recognized that difference when they put the 

limited times in the Constitution. 

And I read the history different than Mr. Sydnor about the two 

terms. I think most copyright owners didn’t have any economic use 

for their copyrights after the first term and didn’t bother to re-register, and so I think there is a lot of public benefit from a limited 

time, and any extension, any incursion into the public domain 

would actually harm the public. 

Mr. RAE. I would add that explicit in the compact outlined in the 

Constitution is the incentive to author benefit, but also it is to 

bring new creative works forward. 

But the issue sometimes that we bump up into in the music industry, is the Constitution is silent on intermediaries. It doesn’t 

mention anybody to whom those works are transferred. So somewhere before that work reaches the public domain in its natural 

life, whether that is life plus 70 or whatever the term is, artists 

still need to be able to tap into that value at the end of that life 

span and I think that that is definitely in favor of preserving, 

maintaining, and potentially clarifying termination. 

One other point that I would like to make is our music industries 

have also, artists within them have struggled because oftentimes a 

rights holder to whom a copyright is transferred, doesn’t publish 

the work, doesn’t bring that record album forward, doesn’t release 

the LP. 

And I think that another way Congress might be helpful is establishing a point by which an artist can recapture that right if the 

transferee, the label or the publisher does not exploit it. 

Mr. MARINO. Thank you. My time has just about expired. 

I see no other Congressmen or Congresswomen here to ask questions. 
76 

So as a result I want to thank the Committee for being here. I 

apologize again for interrupting, but you know how the votes go. 

This concludes today’s hearing. Thanks to all of our witnesses attending. Thanks to the people in the gallery for being here. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. This hearing is adjourned. 

[Whereupon, at 3:44 p.m., the Subcommittee was adjourned.] 
(77) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
78 
79 
80 
81 

f 
82 
83 
84 
85 

f 
86 
87 
88 
89 
90 
91 
92 
93 

f 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 
110 

f 
111 
112 
113 
114 
115 

Æ