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Subject: 1998CRH1456A COPYRIGHT TERM EXTENSION ACT, Part 4/4
Date: 1998/03/26
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[[Page H1477]]
Mr. SOUDER. Mr. Chairman, reclaiming my time, I would hope that there
is an understanding in general when it is background music and not
primarily, something that is the primary business of the company that
is playing the music.
But there is an understanding that this helps promote, to some
degree, the music involved with the individuals, and they are not going
to be helped by restaurants going silent. They are not going to be
helped by higher prices in restaurants either. That is really what I
have a question about in this Republican controlled Congress. Are we,
in effect, going to pass another backdoor tax increase?
Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the
requisite number of words.
Mr. Chairman, to begin, I want to answer the question posed by the
gentleman from Indiana about whether Members of Congress who play music
when people are on hold are paying ASCAP.
My understanding of this bill is that you incur that obligation if
you are charging people, that is, if you are selling them a meal. So I
assume those Members who have charged people to call them would owe
ASCAP money. So if you have a separate line for contributors, then you
better talk to ASCAP.
For those of us who do not charge our constituents to call us, I
think we are probably not in this situation. Although I do not play
music on my phone, I do not sing or dance for my constituents, I have
more mundane services I try to perform for them.
But I would say to the gentleman, if you are charging people to call
you, then you better be in touch with BMI and ASCAP.
{time} 1300
Mr. SOUDER. Mr. Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Indiana. A
microphone will probably help. The gentleman will not be charged for
using it.
Mr. SOUDER. Mr. Chairman, my understanding is that it is a violation
of Federal copyright law if one is not paying a licensing fee, whether
or not it is for profit.
Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, if the
gentleman is simply playing it in his office.
Let me put it this way to the gentleman. There is a commercial nexus
here. No, not every time one turns on the radio and someone else
listens does one have to pay the fee. If one turns on the radio in
one's office and people wander in to talk, one does not owe them a
thing, and that is the point that some of the opponents I think are
missing here.
This is a charge for people who are charging the public to come in.
Owners of businesses are not irrational, they do not do things
randomly, at least not as a whole. When the owner of a restaurant plays
music, he or she does it to enhance the attractiveness of the
restaurant; it is part of the package of things that bring people in.
And what we are saying is, yes, if you are going to use other people's
work product to enhance the attractiveness of your commercial
establishment, you should pay them something.
I was surprised to hear this referred to as a tax. I thought a tax
was when one collected the money for the government. I do not think
enforcing an obligation that one private owner owes another is a tax.
People play the music in the restaurants or elsewhere because it brings
in more customers. If not, there would not be a problem.
People say, well, it would cost more for the consumer. That is true.
And if one could get one's food for free, it would be cheaper for the
consumer. If one could get people to work for free, that would be
cheaper for the consumer.
Mr. SCARBOROUGH. Mr. Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from Florida.
Mr. SCARBOROUGH. Mr. Chairman, there is a misperception with what the
gentleman said, and knowing the gentleman, I know that he did not
intend to make this mistaken statement, but he is talking about, it is
going to be a new back-door tax increase, it is going to be a new
expense. The gentleman was talking about a new expense.
It is not a new expense. It is existing, it is already there. In
fact, even this compromise language subtracts how much restaurants
would have to pay a hundredfold.
Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think
the gentleman is correct. We are talking about enforcing the existing
obligation, and I guess if we agreed with the gentleman, we would have
to assume that if the amendment of the gentleman from Wisconsin would
pass, restaurant prices would drop, because suddenly they would not owe
as much.
I do not think anyone in this building believes that.
Mr. BERMAN. Mr. Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from California.
Mr. BERMAN. Mr. Chairman, I guess if the gentleman from Wisconsin had
offered an amendment saying that everyone who owns a restaurant gets to
deduct 50 percent of their lease price, the gentleman from Indiana
would say, in a Republican-controlled Congress, we have to support that
amendment; otherwise, we will have an unnecessary tax increase on the
patrons of that restaurant.
Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, I think
the gentleman is right. We are talking about an existing obligation.
But I want to talk about what it is all about. What we are saying is,
if one earns money in part by playing music, then one should share some
of that with the people whose music one is playing. There was reference
to the fact that well, it might be played on one television on the
local station and the network will charge in the long term; yes,
because they want to make money off of it. Yes, the network makes money
off the program, they sell advertising, and then the local people do
it. This notion that there should only be one source of revenue for
each program does not comport with reality.
This is the principle: If one is enhancing one's own money-making
ability, which is a good thing, by playing music and increasing the
attractiveness of one's place, one owes some small percentage. The
gentleman calculated that it would only be about 5 percent of income.
Well, I do not think any of us think a 5 percent reduction in income
is a minor or trivial matter. If we were talking about .005, maybe we
would be in that category, but a 5 percent reduction in one's income
seems to me a significant factor, and we ought not to be doing it.
I want to stress one other very important point here which will cause
problems if we adopt the amendment of the gentleman from Wisconsin. We
spend a lot of time, overwhelmingly supported in this Congress, in
trying to enforce American intellectual property rights overseas.
The CHAIRMAN pro tempore (Mr. Gutknecht). The time of the gentleman
from Massachusetts (Mr. Frank) has expired.
(By unanimous consent, Mr. Frank of Massachusetts was allowed to
proceed for 3 additional minutes.)
Mr. FRANK. Mr. Chairman, as was pointed out by the gentleman from
Florida, the amendment of the gentleman from Wisconsin, unlike that of
the gentleman from Florida, abolishes the doctrines of vicarious and
contributory liability here.
What that means is that if one is not the one who is actually playing
the music, even if one is facilitating that in various ways through
one's economic arrangements with them, we cannot go after them and they
may have deep pockets.
Here is the problem. If the United States Congress, in this, so
substantially diminishes this notion of contributory and vicarious
liability and exempts people who are making money by playing other
people's music, or maybe showing other people's movies, or in other
ways using other people's products, if we exempt them in some ways, we
drive a hole in our efforts to enforce American intellectual property
rights overseas that is enormous.
Think what the People's Republic of China could do with the amendment
of the gentleman from Wisconsin. All they would have to do is say,
okay, we are going to take these principles that the American Congress
has adopted; there will be no vicarious and contributory liability. If
you catch the individual, that is fine; otherwise, no, there is
[[Page H1478]]
no liability. And if it is only incidental to some other use, there is
going to be no liability.
We severely threaten our ability to protect one of the major sources
internationally by which America profits, and that is intellectual
property.
Mr. BERMAN. Mr. Chairman, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from California.
Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding. Let us
follow that a little further.
If a company in Russia proliferates missile technology in Iran, we
are not going to make the Russian Government responsible. They did not
make the decision, it was just some company in Russia. It undermines
every aspect of enforcement here when we eliminate the major inducement
to do something to ensure the law is not violated.
Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, let me
stress that because the doctrines of contributory and vicarious
liability are not obscure, what they say is, if one has rented the
premises to people, and as I read the amendment, even if one has rented
the premises and one knows what they are using them for and one knows
there is this symptomatic effort to violate other people's rights, one
is not at all liable.
I ask Members to think what the People's Republic of China and other
notorious abusers of intellectual property rights could do with these
principles, and I guarantee the Members that if we enact these into law
here in the United States House of Representatives, efforts by the
United States Trade Representative or any others to enforce
intellectual property overseas goes down the drain.
We are talking about movies. We are talking about books. We are
talking about music. We are talking about a number of very important
efforts. I do not think that this is an enormous burden.
By the way, we have heard from restaurant owners. People have said,
well, it is a problem for appliance owners, this one, that one,
convention centers. Nobody has heard from the convention centers of
America complaining about this.
What this amendment does, the underlying amendment of the gentleman
from Wisconsin is to make it very, very difficult for us
internationally to defend our intellectual property rights. The
gentleman from Florida has responded sensibly to the complaints of
restaurant owners. He exempts most restaurant owners. He says, if one
is a larger restaurant and playing this music enhances one's ability to
make money, one will share a little with those who created it. That is
a reasonable approach.
Mr. COBLE. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, about 8 or 9 months ago, 4 or 5 of us from the
Subcommittee on Courts and Intellectual Property were chatting one
night, and in the group was the late Sonny Bono. One of the Members, I
do not recall his identity, but one of the Members said to Sonny, Bono,
you are a restaurateur, you are a song writer. Who do you support on
this issue?
Sonny said, can we not support both? He said, must I reject one in
favor of the other?
And I said to him, amen, Sonny.
The gentleman from Florida (Mr. McCollum) has crafted such a
compromise, a compromise I am told that the song writers and the
restaurateurs, neither of whom is completely ecstatic, but both of whom
can live with.
I have said before, Mr. Chairman, I am a friend of restaurants in my
district. Restaurateurs speak to me frequently, and if anybody accuses
me of trashing restaurants just because I am supporting the McCollum
amendment, I will meet him in the back lot, because that is simply not
the case. But restaurateurs come to me and say, this issue is
important, but there are other issues that are far more vital to us as
operators of restaurants than music licensing. You all get that over
with, and there will be other issues on our agenda that we want you to
visit before you adjourn in the fall.
We had conducted 2 hearings on this, Mr. Chairman. Fair and open-
minded, we invited all parties who had interest in the matter to
appear. The second hearing occurred in Washington last July. One of the
witnesses, a tavern and restaurant owner from Mr. Sensenbrenner's home
State of Wisconsin, in his testimony in response to a question, he
admitted that his gross earnings for the current period were in excess
of $400,000, and he furthermore admitted that his payment to play music
was $500. Some of the folks almost fell out of their respective chairs
when he announced that his gross was over $400,000, yet he was only
required to pay $500.
Now, I am not suggesting, Mr. Chairman, that that gentleman typifies
restaurant and tavern owners around the country; I am suggesting that
he was the witness who was selected to appear by the coalition that the
gentleman from Wisconsin (Mr. Sensenbrenner) represents.
Now, Mr. Chairman, these are issues that talk about big business
versus little business. That is not the case at all, and I tried to
portray that earlier. I think both sides of the aisle have portrayed
it, Republicans, Democrats, liberals, conservatives, mugwumps, if there
are any, everybody has come to the plate on this.
Mr. CLEMENT. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I rise to express my strong opposition to the amendment
of the gentleman from Wisconsin (Mr. Sensenbrenner) and also my strong
support for the McCollum amendment.
The Sensenbrenner amendment would be devastating to our Nation's song
writers. Rather than deny their right to make a living, Congress should
recognize the importance and significance of these gifted and talented
individuals. As a Representative from Nashville, Tennessee, or as I
might say it, Music City, USA, I am deeply concerned about this
amendment's effort to compromise the intellectual property rights of
our song writers and assault their ability to make a living.
Mr. Chairman, this amendment devalues the achievements and diligent
efforts of our song writers and musicians. The property rights of any
individual should not be considered secondary to the rights of others.
For Congress to single out song writers would send a signal to both the
American creative community and to the world at large that intellectual
property no longer holds any value in the United States.
John F. Kennedy once said,
I look forward to an America which will reward achievement
in the arts as we reward achievement in business or
statecraft. I look forward to an America which will steadily
raise the standards of artistic accomplishment and which will
steadily enlarge cultural opportunities for all of our
citizens. I look forward to an America which commands respect
throughout the world, not only for its strength, but for its
civilization as well.
Songs are born in any number of magical and mystical ways. But what
might appear to take 15 minutes to create often takes 15 years of hard
work, sacrifice, dedication, practice, and persistence. We should be
rewarding these creators and not punishing them by the Sensenbrenner
amendment.
Mr. Chairman, I strongly urge my colleagues to oppose this amendment
and support the McCollum substitute amendment in an effort to uphold
intellectual property rights for all.
Mr. HEFLEY. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I just want to say that I always thought that we were
great when we got behind Radio Free Europe and others, and I thought we
had free radio here in the United States. It is a shame to me that we
are even arguing over this.
Mr. Chairman, I yield to the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Chairman, I thank the gentleman from Texas for
yielding.
The gentleman from North Carolina, when he gave his statement,
referred to the testimony of a Peter Madland who used to be the
President of the Tavern League of Wisconsin, talking about how big his
place was and how much his gross income was.
{time} 1315
But what the gentleman from North Carolina did not tell us, and he
would not yield to me so I could enlighten him, is that under the
Sensenbrenner amendment, Mr. Madland's establishment would not be
exempt from paying ASCAP fees.
[[Page H1479]]
He testified before the subcommittee of the gentleman from North
Carolina (Mr. Coble) on July 17, 1997, that he has 20,000 to 25,000
square feet in his establishment. It is a big bar. I have never been
there, it is in the district represented by the gentleman from
Wisconsin (Mr. Obey). But the exemption contained in both the McCollum
amendment and the Sensenbrenner amendment goes to 3,500 square feet,
and Mr. Madland's establishment is way over that. He does not get a
free ride. He is going to pay the same ASCAP fee as he has paid before
because he has a big establishment.
For the gentleman from North Carolina, having presided over the
hearing where Mr. Madland testified on how big his establishment is, to
make a representation that this major operator was going to get a free
ride I think is regrettable.
Mr. SAM JOHNSON of Texas. Mr. Chairman, I move to strike the
requisite number of words, and I yield to the gentleman from North
Carolina (Mr. Coble).
Mr. COBLE. Mr. Chairman, I thank the gentleman from Texas for
yielding to me.
I want to formally apologize to my friend, the gentleman from
Wisconsin. Oftentimes, Mr. Chairman, in the heat of debate we become
embroiled, and I should have yielded to him. But I assume, I would ask
the gentleman from Wisconsin (Mr. Sensenbrenner), that he is not
suggesting that my testimony was inaccurate, or is he?
Mr. SENSENBRENNER. If the gentleman from Texas will yield to me, Mr.
Chairman, absolutely not. The gentleman from North Carolina (Mr. Coble)
might have forgotten that Mr. Madland testified on how big his
establishment is, and might not have made the connection with the
exemption contained in the Sensenbrenner amendment.
I am just here to inform the gentleman from North Carolina that Mr.
Madland would not be exempt, and representations that the operator of
that big an establishment, whether it is in Chetek, Wisconsin, or
anyplace else in the country, would be exempt, that person simply has
not read what is in the text of the Sensenbrenner amendment.
Mr. Madland pays, and anybody else that has that big an establishment
would pay under my amendment.
Mr. COBLE. If the gentleman would continue to yield, Mr. Chairman, I
just wanted to apologize to the gentleman from Wisconsin (Mr.
Sensenbrenner) and to the Members. I should have yielded, but we are
embroiled in this, and for that purpose, Mr. Chairman, I want to get
that on the record.
Mr. SCARBOROUGH. Mr. Chairman, I move to strike the requisite number
of words.
Mr. Chairman, I want to talk about a couple of issues that have been
brought up. The first has to do with what a good friend of mine, the
gentleman from Indiana, talked about. He talked about the back-door tax
increase. Again I want to reiterate to my friends who may be listening
to this, this is a red herring. It is not a back-door tax increase. It
is one small business owner paying another small business owner for
their property, for using their property.
Secondly, there will be no increase in payments. This is talking
about an existing payment that has to be done.
He also talked about the phone system. I think it is very important
to realize, we talked about incidental use, or we talked about using
music to enhance business, to make more money. There are marketing
firms out there that actually get paid to tell dentists what type of
music to play on their phone systems. I know, because I have a father-
in-law who is a dentist. There are marketing firms who pay people to
tell law firms what type of music to play on their phone systems to
help them lure more business, more money.
It is a means, music is a means to make more money. I think it is
unconscionable that all these people that have stormed Capitol Hill in
the name of property rights in 1994, just 4 years later want to take
away property rights from others, when it is clear that this property
is being used to make a profit.
I wonder if these bar and tavern owners that are so offended about
five different entities actually using the same property to make money
would be that offended when they charge five people to come into their
restaurant to use the same property, or 500 people? Or how about the
Titanic? If we have theater owners who allow people to see the Titanic
four or five times, do they pay once and get a free pass for the other
four times they see it? Absolutely not. This is ridiculous. They are
red herrings.
Unfortunately, a process was set up where reasoned people could get
together, could compromise, and regrettably, one party did not want to
compromise.
We have heard, talking about apologies on the floor, we have heard
the McCollum amendment called ``a sham,'' when most reasoned people
have said that the McCollum amendment was where the two parties were
going before one party went aside.
We also heard somebody talked about property rights for songwriters
being ``a scam.'' That is not the case. We have also heard people
parade up to the microphone saying they have to go to New York, they
have to hire a god-awful New York attorney. That is not the case
anymore. The McCollum amendment makes sure that we have boards go
throughout the land.
For those people to suggest that we set up an arbitration system with
absolutely no oversight whatsoever, we are talking about a wild, wild
West judicial system with no oversight, with no guidance, and would
lead to the most bizarre, inconsistent, crazy results. It is dangerous.
I hear people coming up to the microphone saying, well, there is no
such thing as a free lunch. Yet, they turn around and advocate an
amendment that provides a free lunch. We hear people coming up talking
about how the small restaurants will be hurt.
Let me tell the Members, again, it needs to be reiterated, CRS has
estimated a 406 percent increase in restaurants exempted under this
provision. There is 406 percent of restaurants that will be exempted
under this provision. Only the largest restaurants will pay any fee.
The average paid is $30 a month, $30 a month.
When I hear people come up talking about how this is going to be
crushing to small business, it is laughable. Small business is using
this property to make a profit. I am a capitalist, I am a supporter of
small business. I talk to the restaurant owners, I talk to the
restaurant owners that elected me, talk to the people that I fought
against the minimum wage for, talk to the people that I fought for to
eradicate the capital gains tax.
I believe in free enterprise. I believe in the free market system,
and I believe that if somebody has a product that helps somebody else
make money, then I am all for it. Get it out in the marketplace. But
let us forget this free market concept. Let us support the amendment
offered by the gentleman from Florida (Mr. McCollum), and let us make
sure people get paid fairly for their property rights.
Let us make sure we do not send the wrong message to China. China
feels very, very free in taking our property rights, be it CDs or
software. I do not hear anybody here saying Microsoft should only
charge once for their program. I have yet to hear one person say that.
Yet, it is the same concept. If you can copy a Microsoft program over
and over and over again without paying Microsoft, what is the
difference there? It is the same exact thing.
The CHAIRMAN pro tempore. The time of the gentleman from Florida (Mr.
Scarborough) has expired.
(By unanimous consent, Mr. Scarborough was allowed to proceed for 3
additional minutes.)
Mr. SCARBOROUGH. Mr. Chairman, I ask my conservative brethren that
came here in 1994 fighting for property rights, if they were to fight
for Bill Gates' right to make sure that he protects what is his to
protect, then we do the same thing for the small, struggling
songwriter.
Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Florida.
Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding. He
has eloquently expressed where we are at this point.
I just wanted the gentleman to yield to bring out the fact that we
are near the end of this debate, we may have one or two more speakers.
The bottom line is that what I am offering truly is
[[Page H1480]]
a compromise. I would like to make the point, and drive it home, that a
great many restaurants are going to be exempted by my amendment. We
have already talked about a 400 percent increase over the current law.
These folks have been paying, restaurants have been paying these
royalties, these fees for years. This is nothing new. We are talking
about exempting 75 or 80 percent of those restaurants. I think probably
it will be even more, because in this amendment we bumped up from what
the negotiated status was, which is what I am trying to offer, pretty
much, here; we bumped up the number of television sets you can have in
a restaurant that get you exempted, no matter what your square footage
is, to four. If you have six speakers in the restaurant you are
exempted, no matter what your square footage is, how big you are. I
think that takes care of anything but really big restaurants.
So I do not know what the squabble is about. We need to pass a
copyright extension bill, we need to get this debate passed, and we
need to do what the gentleman has suggested, and that is protect the
property rights interests of both the small business restaurateur and
the small business songwriter. Adopting the McCollum amendment
substitute to Sensenbrenner will do that. His will not do that. It is
not fair. I thank the gentleman for yielding time to me.
Mr. SCARBOROUGH. Mr. Chairman, I thank the gentleman for his
amendment.
I am reminded by the remark the gentleman from California said a few
minutes ago, that a lot of people would be absolutely shocked that they
would be coming to the floor voting for legislation such as the
gentleman's, an amendment such as that of the gentleman from Florida
(Mr. McCollum), because we have compromised so much, and yet we are
still told that is enough.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
Mr. SCARBOROUGH. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Chairman, on the international side,
people have said the restaurant owners should not have to pay because
someone has already paid for this once, the national TV, et cetera.
Put that doctrine in the hands of the Chinese or others overseas and
you say to them, okay, as long as something was once paid for in
America, this book, this movie, this recording, this CD, then I can
sell it without paying the owner, and you have destroyed our capacity
to defend American intellectual property overseas.
Mr. SCARBOROUGH. It would be absolutely devastating to the computer
industry, the software industry. It is a dangerous, dangerous
precedent.
Mr. GORDON. Mr. Chairman, I move to strike the requisite number of
words. Mr. Chairman, there has been a lot of rhetoric on both sides of
this issue. Let me just take a quick moment to try to summarize where
we are, please.
The main bill that we are debating today is the Copyright Extension
Act. What that does is extend the copyrights for music and film in this
country to the same level of other countries around the world. If we do
not do this, then the United States is going to lose hundreds of
millions of dollars in revenue from other countries that should come in
to the United States.
That is very reasonable, and I think most everybody agrees with that.
But then, unfortunately, the gentleman from Wisconsin (Mr.
Sensenbrenner) has taken this noncontroversial bill and added a
completely unrelated, very controversial amendment.
What the amendment offered by the gentleman from Wisconsin (Mr.
Sensenbrenner) basically says is that unlike the present and the past,
that restaurants and bars should not have to pay for the music or the
royalties for the music that they play in their establishments, which
amounts to just a little over $1.50 a day.
It really is somewhat amazing that the gentleman from Wisconsin, who
is a strong property rights advocate, it is really ironic, he would
never say that these same bars and restaurants should not have to pay
the supplier for the chairs and tables, for the paint on the walls, for
the chandeliers, or for anything else that helps them make the
atmosphere for that particular restaurant or bar. However, for some
reason they should not have to pay $1.50 a day for the music, knowing
that if this $1.50 is not worthwhile, if the music does not enhance
their establishment, they can turn it off. Nobody is telling them they
have to play it. Only that they need to pay for it if they use it, like
the tables and chairs.
Mr. Chairman, the gentleman from Florida (Mr. McCollum) has come
along and introduced an amendment to that of the gentleman from
Wisconsin (Mr. Sensenbrenner), a compromise, and is trying to bring
some rationality to this issue. He is, the gentleman from Florida (Mr.
McCollum), exempting the smallest bars and restaurants in the country;
as a matter of fact, two-thirds of the restaurants and bars in the
country, which is a very reasonable amendment. Because we have to
remember, if the songwriters are not paid, they cannot produce the
songs, and when they do not produce the songs, the music is going to
stop.
I would like to share with the Members a song that one of the
songwriters back home has written about this issue. I say to my friend,
the gentleman from Wisconsin (Mr. Sensenbrenner), I am going to spare
him me singing this, so I am going to read it here for the gentleman.
It is ``Dear, dear, U.S. Congress:
``Some merchants want to use my song, but they don't want to pay me,
and I think that is wrong. How would you like to have a job where you
work hard every day, you love what you are doing, but you don't get any
pay? I can't give away my songs for free 'cause this is the way I feed
me and my family. And if you merchants disagree, that's fine. Go write
your own songs, just don't use mine.''
Now, Mr. Chairman, let me ask the Members today to keep the music. Do
not stop the music from coming forward. I support a very reasonable
compromise offered by the gentleman from Florida (Mr. McCollum) to keep
the music for all America.
Mr. BONILLA. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, this is a debate that involves small business, and I
think all of us who believe in the American way and in driving the
American economy understand that small business is the backbone of that
culture that drives the American economy.
Too often this Congress dumps on them: more regulations, higher
mandated wages, taxes that are too high. So we have people, for
example, that are running small restaurants in this country that are
asking us not to dump on them one more time.
{time} 1330
In my hometown of San Antonio, small businesses and restaurants are
at the forefront of job creation and economic opportunity. Anyone who
has visited San Antonio and the River Walk know how these small
businesses enhance my town's premier tourist attraction.
These businesses cannot afford in many cases any more ruinous fees.
This amendment offered by the gentleman from Wisconsin (Mr.
Sensenbrenner), which I am supporting, provides a reasonable compromise
to protect jobs while protecting the copyrights of artists.
Simply put, the Sensenbrenner amendment makes needed changes in
Federal law by providing for local arbitration of music licensing fee
disputes. Small businesses will no longer be forced to travel across
the country to New York to make their case. They could not afford to do
that anyway. Today's small business has no local recourse. This is a
more than reasonable compromise the gentleman from Wisconsin is
offering in his amendment.
The amendment does not fully exempt businesses from paying royalties
or change existing penalties. It merely recognizes that changing
technology makes some of the current fees unfair and represents a
double charge for licensing.
Mr. Chairman, I cosponsored H.R. 789, the Fairness in Music Licensing
Act, because I believe it represents a responsibility compromise. I
urge my colleagues to please join me in voting for the Sensenbrenner
amendment, which will help ensure that small business remains the
engine driving our economy.
Mr. NADLER. Mr. Chairman, I move to strike the requisite number of
words.
[[Page H1481]]
Mr. Chairman, I rise to oppose strongly the Sensenbrenner amendment
and to support the McCollum amendment to the Sensenbrenner amendment.
The Sensenbrenner amendment would be essentially a license for
restaurants, taverns, and other establishments to use songwriters' work
product, their property, without paying for it. It would be a license
to steal from America's creative community and, therefore, I must
oppose it vigorously.
The late Justice Oliver Wendell Holmes said that, ``It is true that
the music is not the sole object, but neither is the food,'' referring
to a restaurant.
The object is the repast and surroundings that give
luxurious pleasure not to be had from eating a silent meal.
If music did not pay, it would be given up. Whether it pays
or not, the purpose of employing it is profit and that is
enough.
Mr. Chairman, several people have said, and I will say it for myself,
that I never thought I would come before the House, advocating support
of an amendment that would exempt an establishment as large as 3,500
square feet. The McCollum amendment, frankly, I think goes far too far.
But it is acceptable to the songwriters. I do not think they are
getting as fair a deal as they ought out of it, but I will support it
as the best we can get.
Mr. Chairman, I looked at this issue very carefully when I was a
member of the Subcommittee on Courts and Intellectual Property of the
Committee on the Judiciary, and I remember coming to several
conclusions after hearing from both sides. The first conclusion is the
question of equity. Ninety percent of songwriters make less than
$10,000 a year. Many make more, but are still struggling. The average
restaurant pays $400 to $450 a year for songwriter fees. The average
income of the restaurant makes that a small proportion, a very small
proportion, and yet for the songwriters it is very important. So as a
matter of equity, when something is very important for one side as a
percentage of their income and very small for the other, it makes sense
to go with the side that we would really hurt if we went the other way.
Second of all, and here I fail to see how some of my friends on the
other side of the aisle can even think of supporting this amendment, we
are talking here about private property. We are talking about private
arrangements between one group of property owners, the songwriters who
own the songs that they have produced, and another group of property
owners, the restaurant owners who want to purchase the use of those
songs.
I am not a total believer in the efficacy of the free market in all
circumstances, unlike some of my friends on the other side of the
aisle. But I do believe that before the government should come in and
pass a law dictating the terms of an arrangement between property
owners, before we should come in and say some can use that music for
free and some must pay, there has got to be a very, very strong showing
of the public policy necessity. There has got to be a showing of why
the free market and private negotiations cannot work its will to the
best interest of the economy and the people of the country, as it
usually does. One has to make a showing why the free market cannot work
in a situation before we ask for government regulation.
What do we have here? We have some people coming in, some people who
are normally great supporters of private property rights and against
regulation and, based on nothing at all, saying let us dictate the
terms of the arrangement and say to the restaurant owners they can use
the other people's property for free.
Why? What is the necessity? Why do we not trust the market to work
this out? Why do we not trust the songwriters and the restaurants to
negotiate deals as they have for the last, I do not know, 70 or 80
years?
I see no reason. We hear that here it is a question of secondary use;
that they have already paid once for it. Well, so what? So what? I
would not be permitted, none of us would be permitted to purchase a CD
or a tape of a movie, purchase it, go in and pay $15 for a tape of a
movie, and then going go to my machine and making a lot of tapes of it
and selling those. None of us would be permitted to do that. We are
using that property, and it is exactly the same thing.
So on these grounds I do not see why we should pass any amendment at
all on the subject. I will reluctantly go along with the amendment
offered by the gentleman from Florida (Mr. McCollum) as a reasonable
compromise, and certainly more reasonable than an attempt, frankly, to
appropriate the songwriters' property for free, for the benefit of
restaurant owners.
Mr. Chairman, I love restaurant owners. I have plenty of them in my
district. But they are not entitled to the free use of other people's
property. Period. So I urge my colleagues to oppose the Sensenbrenner
amendment and support the McCollum amendment to the Sensenbrenner
amendment.
Mr. WATT of North Carolina. Mr. Chairman, I move to strike the
requisite number of words.
Mr. Chairman, I will not take 5 minutes, but I rise in support of the
McCollum-Conyers substitute and in opposition to the Sensenbrenner
amendment.
I want to address two issues quickly. Number one, I do not think this
is an issue of big business against small business or a small business
issue. It seems to me that restaurants are small businesses, but music
writers are also small businesses. So either way we vote on this, we
are going to be trying to support, as all of us I believe do, small
business in this country.
The second is an argument that I have heard a number of restaurant
owners advance from time to time that music is just background music,
and we ought not be obligated to pay for it, even though we are using
somebody else's work product. And my typical response to that is, if
what they are saying is true, if this is of no benefit to their
company, if this is truly background music, cut it off. And if they cut
it off, then nobody obligates them to pay for the use of it.
So I just think, as a matter of fairness and equity, that a person
who has written a song and dealt with that song and put it in the
stream of our intellectual property ought to be compensated for the use
of it. And I think the McCollum amendment represents a reasonable
approach to it. I have some concerns about it also, but I will support
that substitute and vote against the amendment offered by the gentleman
from Wisconsin.
Mr. BONIOR. Mr. Chairman, will the gentleman yield?
Mr. WATT of North Carolina. I yield to the gentleman from Michigan.
Mr. BONIOR. Mr. Chairman, I thank the gentleman from North Carolina
(Mr. Watt) for his remarks and support him in his support of the
McCollum-Conyers amendment. I think the gentleman hit the nail on the
head when he talked about that these are small businesspeople, all of
the folks who write songs, who write music for a living. This is an
important work. It brings great joy and great dignity to our society.
They pour their heart and soul into their work.
Mr. Chairman, I am just finishing a book called Lush Life, the story
of Billy Strayhorn, one of the great song people of our time. And
reading that gives a sense of the dignity and the tough work, but the
joyous work of these individuals. And it just seems to me that they
need as much protection as the folks who own the bars and the
restaurants and all the other facilities that we have talked about.
So I thank the gentleman from North Carolina (Mr. Watt) for his
comments and his remarks, and I hope that we will adopt the McCollum-
Conyers amendment this afternoon.
The CHAIRMAN pro tempore (Mr. Sununu). The question is on the
amendment offered by the gentleman from Florida (Mr. McCollum) to the
amendment offered by the gentleman from Wisconsin (Mr. Sensenbrenner).
The question was taken; and the Chairman announced that the ayes
appeared to have it.
Recorded Vote
Mr. SENSENBRENNER. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN pro tempore. Pursuant to clause 2 of rule XXIII, the
Chair announces that he may reduce to not less than 5 minutes the
period of time within which a recorded vote may be taken without
intervening business on the Sensenbrenner amendment.
The vote was taken by electronic device, and there were--ayes 150,
noes 259, not voting 22, as follows:
[[Page H1482]]
[Roll No. 68]
AYES--150
Abercrombie
Ackerman
Allen
Baldacci
Becerra
Berman
Bliley
Bonior
Borski
Boucher
Brown (CA)
Brown (OH)
Bryant
Callahan
Canady
Capps
Carson
Clay
Clayton
Clement
Coble
Costello
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Dixon
Doggett
Dooley
Dreier
Ehrlich
Engel
Eshoo
Evans
Fattah
Fazio
Filner
Foley
Forbes
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gilchrest
Gilman
Goodlatte
Gordon
Gutierrez
Hall (OH)
Hansen
Hastings (FL)
Hefner
Hilleary
Hinchey
Hoyer
Hunter
Hutchinson
Hyde
Jackson (IL)
Jenkins
Kaptur
Kelly
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kilpatrick
Kim
Kucinich
LaFalce
LaHood
Lampson
Lantos
Lazio
Levin
Lewis (GA)
Lipinski
Livingston
Lofgren
Lowey
Luther
Maloney (NY)
Manton
Markey
Martinez
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McDade
McGovern
McKinney
Meehan
Meek (FL)
Meeks (NY)
Menendez
Miller (CA)
Mink
Moakley
Mollohan
Morella
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pascrell
Paul
Pease
Pelosi
Poshard
Radanovich
Rahall
Rivers
Rogan
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Scarborough
Schumer
Serrano
Shays
Sherman
Skaggs
Slaughter
Stokes
Stupak
Tanner
Tauscher
Thomas
Thurman
Tierney
Torres
Towns
Velazquez
Vento
Wamp
Watt (NC)
Waxman
Wexler
Wise
Yates
NOES--259
Aderholt
Andrews
Archer
Armey
Bachus
Baesler
Baker
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Bentsen
Bereuter
Berry
Bilbray
Bilirakis
Bishop
Blagojevich
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Boswell
Boyd
Brady
Bunning
Burr
Burton
Buyer
Calvert
Camp
Campbell
Castle
Chabot
Chambliss
Chenoweth
Christensen
Clyburn
Coburn
Collins
Combest
Condit
Cook
Cooksey
Cox
Coyne
Cramer
Crane
Crapo
Cubin
Cummings
Cunningham
Danner
Davis (FL)
Davis (VA)
Deal
DeLay
Diaz-Balart
Dickey
Dicks
Doolittle
Doyle
Duncan
Dunn
Edwards
Ehlers
Emerson
English
Ensign
Etheridge
Everett
Ewing
Farr
Fawell
Fossella
Fowler
Fox
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gillmor
Goode
Goodling
Goss
Graham
Granger
Green
Greenwood
Gutknecht
Hall (TX)
Hamilton
Hastert
Hastings (WA)
Hayworth
Hefley
Herger
Hill
Hilliard
Hinojosa
Hobson
Hoekstra
Holden
Hooley
Horn
Hostettler
Hulshof
Inglis
Istook
John
Johnson (CT)
Johnson (WI)
Johnson, Sam
Jones
Kanjorski
Kasich
Kind (WI)
King (NY)
Kingston
Klink
Klug
Knollenberg
Kolbe
Largent
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Maloney (CT)
Manzullo
Mascara
McCrery
McHale
McHugh
McInnis
McIntosh
McIntyre
McKeon
McNulty
Metcalf
Mica
Miller (FL)
Minge
Moran (KS)
Moran (VA)
Murtha
Myrick
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Oxley
Packard
Pallone
Pappas
Parker
Pastor
Paxon
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pickett
Pitts
Pombo
Pomeroy
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Ramstad
Redmond
Regula
Reyes
Riley
Rodriguez
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Ryun
Salmon
Sandlin
Sanford
Sawyer
Saxton
Schaefer, Dan
Schaffer, Bob
Scott
Sensenbrenner
Sessions
Shadegg
Shaw
Shimkus
Shuster
Sisisky
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (OR)
Smith (TX)
Smith, Adam
Smith, Linda
Snowbarger
Snyder
Solomon
Souder
Spence
Spratt
Stabenow
Stearns
Stenholm
Strickland
Stump
Sununu
Talent
Tauzin
Taylor (MS)
Taylor (NC)
Thompson
Thornberry
Thune
Tiahrt
Traficant
Turner
Upton
Visclosky
Walsh
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Weygand
White
Whitfield
Wicker
Wolf
Woolsey
Wynn
Young (AK)
Young (FL)
NOT VOTING--22
Brown (FL)
Cannon
Cardin
Conyers
Ford
Gonzalez
Harman
Houghton
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Kleczka
McDermott
Millender-McDonald
Payne
Rangel
Riggs
Rothman
Royce
Schiff
Stark
Waters
{time} 1400
The Clerk announced the following pair:
On this vote:
Mr. McDermott for, with Mr. Rangel against.
Messrs. SMITH of Texas, HULSHOF, DICKS, FOX of Pennsylvania, PICKETT,
THOMPSON, BATEMAN, COX of California, CUMMINGS, BERRY, Ms. STABENOW,
Mrs. FOWLER, Mr. UPTON and Mr. FARR of California changed their vote
from ``aye'' to ``no.''
Messrs. GUTIERREZ, MOAKLEY, SHAYS, Ms. LOFGREN, Mr. STOKES, Mr. RUSH,
Mrs. MORELLA, and Mr. HINCHEY changed their vote from ``no'' to
``aye.''
So the amendment to the amendment was rejected.
The result of the vote was announced as above recorded.
The CHAIRMAN pro tempore (Mr. Sununu). The question is on the
amendment offered by the gentleman from Wisconsin (Mr. Sensenbrenner).
The question was taken; and the Chairman pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. SENSENBRENNER. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The CHAIRMAN pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 297,
noes 112, not voting 22, as follows:
[Roll No. 69]
AYES--297
Aderholt
Andrews
Archer
Armey
Bachus
Baesler
Baker
Baldacci
Ballenger
Barcia
Barr
Barrett (NE)
Barrett (WI)
Bartlett
Barton
Bass
Bateman
Bentsen
Bereuter
Berry
Bilbray
Bilirakis
Bishop
Blagojevich
Bliley
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Borski
Boswell
Boucher
Boyd
Brady
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Carson
Castle
Chabot
Chambliss
Chenoweth
Christensen
Clayton
Clyburn
Coburn
Collins
Combest
Condit
Cook
Cooksey
Costello
Cox
Coyne
Cramer
Crane
Crapo
Cubin
Cunningham
Danner
Davis (FL)
Davis (VA)
Deal
DeLay
Diaz-Balart
Dickey
Dicks
Doolittle
Doyle
Duncan
Dunn
Edwards
Ehlers
Ehrlich
Emerson
English
Ensign
Etheridge
Evans
Everett
Ewing
Farr
Fawell
Foley
Fossella
Fowler
Fox
Franks (NJ)
Frelinghuysen
Frost
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Goode
Goodlatte
Goodling
Goss
Graham
Granger
Green
Greenwood
Gutknecht
Hall (OH)
Hall (TX)
Hamilton
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Hefner
Herger
Hill
Hilleary
Hinojosa
Hobson
Hoekstra
Holden
Hooley
Horn
Hostettler
Hulshof
Hunter
Hutchinson
Inglis
Istook
Jenkins
John
Johnson (CT)
Johnson (WI)
Johnson, Sam
Jones
Kanjorski
Kaptur
Kasich
Kim
Kind (WI)
King (NY)
Kingston
Klink
Klug
Knollenberg
Kolbe
Kucinich
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
Livingston
LoBiondo
Lucas
Maloney (CT)
Manzullo
Mascara
McCrery
McDade
McHale
McHugh
McInnis
McIntosh
McIntyre
McKeon
McNulty
Metcalf
Mica
Miller (FL)
Minge
Mollohan
Moran (KS)
Moran (VA)
Murtha
Myrick
Neal
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Obey
Oxley
Packard
Pallone
Pappas
Parker
Pascrell
Pastor
Paxon
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pickett
Pitts
Pomeroy
Porter
Portman
Poshard
Price (NC)
Pryce (OH)
Quinn
Rahall
Ramstad
Redmond
Regula
Reyes
Riley
Rodriguez
Roemer
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Rush
Ryun
Salmon
Sandlin
Sanford
Sawyer
Saxton
Schaefer, Dan
Schaffer, Bob
Scott
Sensenbrenner
Sessions
Shadegg
Shaw
Shimkus
Shuster
Sisisky
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (OR)
Smith (TX)
Smith, Adam
Smith, Linda
Snowbarger
Snyder
Solomon
Souder
Spence
Spratt
Stabenow
Stearns
Stenholm
Strickland
Stump
Sununu
Talent
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thompson
Thornberry
Thune
Thurman
Tiahrt
[[Page H1483]]
Torres
Traficant
Turner
Upton
Visclosky
Walsh
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
Weygand
White
Whitfield
Wicker
Wise
Wolf
Wynn
Young (AK)
Young (FL)
NOES--112
Abercrombie
Ackerman
Allen
Becerra
Berman
Bonior
Brown (CA)
Brown (OH)
Capps
Clay
Clement
Coble
Cummings
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dingell
Dixon
Doggett
Dooley
Dreier
Engel
Eshoo
Fattah
Fazio
Filner
Forbes
Frank (MA)
Furse
Gejdenson
Gephardt
Gilman
Gordon
Gutierrez
Hastings (FL)
Hilliard
Hinchey
Hoyer
Hyde
Jackson (IL)
Kelly
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kilpatrick
LaFalce
LaHood
Lampson
Lantos
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Maloney (NY)
Manton
Markey
Martinez
Matsui
McCarthy (MO)
McCarthy (NY)
McCollum
McGovern
McKinney
Meehan
Meek (FL)
Meeks (NY)
Menendez
Miller (CA)
Mink
Moakley
Morella
Nadler
Oberstar
Olver
Ortiz
Owens
Paul
Pease
Pelosi
Pombo
Radanovich
Rivers
Rogan
Roybal-Allard
Sabo
Sanchez
Sanders
Scarborough
Schumer
Serrano
Shays
Sherman
Skaggs
Slaughter
Stokes
Stupak
Tanner
Tauscher
Tierney
Towns
Velazquez
Vento
Watt (NC)
Waxman
Wexler
Woolsey
Yates
NOT VOTING--22
Brown (FL)
Cannon
Cardin
Conyers
Ford
Gonzalez
Harman
Houghton
Jackson-Lee (TX)
Jefferson
Johnson, E. B.
Kleczka
McDermott
Millender-McDonald
Payne
Rangel
Riggs
Rothman
Royce
Schiff
Stark
Waters
{time} 1414
The Clerk announced the following pair:
On this vote:
Mr. Kleczka for, with Mr. McDermott against.
Mr. MOAKLEY, Mr. FORBES and Mrs. KELLY changed their vote from
``aye'' to ``no.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
personal explanation
Mr. RIGGS. Mr. Chairman, on Rollcall Nos. 68 and 69, I was
unavoidably detained on other business and unable to be present in the
House Chamber. Had I been present, I would have voted ``no'' on No. 68
and ``yes'' on No. 69, respectively.
The CHAIRMAN pro tempore (Mr. Sununu). Are there any other
amendments?
If not, the question is on the committee amendment in the nature of a
substitute, as amended.
The committee amendment in the nature of a substitute, as amended,
was agreed to.
The CHAIRMAN pro tempore. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Gibbons) having assumed the chair, Mr. Sununu, Chairman pro tempore of
the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration the bill (H.R.
2589) to amend the provisions of title 17, United States Code, with
respect to the duration of copyright, and for other purposes, pursuant
to House Resolution 390, he reported the bill back to the House with an
amendment adopted by the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on any amendment to the committee
amendment in the nature of a substitute adopted by the Committee of the
Whole? If not, the question is on the adoption of the amendment.
The amendment was agreed to.
The bill was ordered to be engrossed and read a third time, was read
the third time, and passed, and a motion to reconsider was laid on the
table.