Subcommittee Hearing Is Next Step

WASHINGTON, D.C.-In normal circumstances, parties come to lawmakers to convince them to remedy some important problem or concern.
If the effects of such a proposed new law, or a change to current law, are substantial and affect the rights of others or the common good, then a member introduces it as legislation.
As such, it will be subject to the 211-year-old congressional process forged by the framers of the Constitution and will be subject to discussion and debate in hearings before committees in both chambers of Congress.
If approved at committee level, it then must be debated and approved in a floor vote by both the House and Senate and reconciled in a final version before it can be sent to the president to be signed into law.
In the case of the amendment to the Copyright Act, which designates sound recordings as works made for hire, the recording industry brought this change in the law to Congress and characterized it as a "technical correction."
A technical correction is a fairly common device used by lawmakers to fix a badly drafted section of a recently passed law or to correct minor glitches that might inadvertently affect another party or impede smooth enactment. As a rule, its subject matter must be noncontroversial and be approved by the lawmakers, who are usually advised on any possible negative repercussions by their staff.
The sound recording work-made-for-hire provision was represented as a noncontroversial technical correction by the staff member who brought it to the attention of lawmakers late in the last session of Congress. The staffer characterized it as a way to ensure that recording artists were included and protected in an anti-cyber-squatting measure.
The recording industry asserts that because of the wording of the cyber-squatting bill, in order for artists to have protection from cyber-squatters, their sound recordings would have to be works made for hire.
Lawmakers who inquired were told there were no negative ramifications to the change and no opposition.
The measure was inserted into an unrelated Satellite Viewer bill as a noncontroversial technical correction to the then current law. It was then folded into a huge omnibus spending bill.
However, as soon as representatives of the artist community heard about the provision, they opposed it at once.
They and many copyright law experts (including the register of copyrights) vehemently disagreed with the idea that the measure was simply a technical correction. They saw it as a substantial change in the law with many repercussions, most important the loss of the once-guaranteed termination rights by which recording artists can reclaim authorship of their sound recordings.
The artist community discovered the provision too late: Once inserted in the final conference report version of the omnibus spending bill, which Congress needed to pass before adjournment, it could not be removed.
The forthcoming May 25 hearing on the change will give lawmakers an opportunity to examine this new law and decide whether to repeal it or to correct any damaging loss of author rights and other consequences or ramifications that may have been overlooked.
It also puts the controversial issue back into the normal pattern of policy-making checks and balances that the constitutional framers developed.

THE PROCESS
A measure that has been introduced by a lawmaker, or a review of a law that opponents say is harmful, is referred to a committee that has jurisdiction over that area. In the case of an issue affecting intellectual property (copyright) matters, the Judiciary Committee has jurisdiction.
Since the work-made-for-hire item was first inserted on the House of Representatives side of the aisle, it will be the House Judiciary's Crime and Intellectual Property Subcommittee that gets it.
In congressional hearings, there are panels of witnesses, chosen by the subcommittee to present particular points of view and to give testimony (and air grievances) as to whether the new law is fair to all parties.
In this case, testimony will focus on whether the work-made-for-hire provision should be considered a technical correction or a substantial change in the law, and whether the law will harm recording artists and their heirs and will serve the public interest.
Congress holds the view that there must be a fair balance between owners or creators and users of copyrighted material.

WITNESSES & TESTIMONY
Witnesses are expected to have already filed complete written testimony with the subcommittee for the record of the proceedings and are usually allocated five minutes to present an oral summary. They are also asked to reply to questions posed by the members of the subcommittee about various aspects of the law.
In this case, the witnesses will present personal or summative oral presentations as well as in-depth written testimony, including cited copyright-law legal arguments buttressing their positions.
Also, the witnesses on both sides of the issue will present arguments on how the change in the law affects their part of the business, particularly the impact of the ownership of "content" sound recording copyrights in the digital age.
Language to remove the alleged negative repercussions of the work-for-hire law may be alleviated by the lawmakers with another technical correction, should they vote to do so, or it may require the introduction of legislation.

THE NEXT STEP
If the change is introduced as legislation, the subcommittee members, after studying and weighing the testimony (written and oral) at a hearing, will vote for or against the legislation in a "markup" session. If the measure is passed, it is then forwarded to the next level, the full committee.
In most cases, the full committee holds another hearing to discuss and debate the legislation, sometimes with more invited witnesses, but not always.
In both hearing arenas, lawmakers listen very closely to arguments pro and con offered by constituents from their congressional districts.
If the committee votes in favor of the bill, it is "reported" to the floor of the chamber, where the entire body has the opportunity to debate and vote on the legislation.
If a bill is introduced and passed by that body, it is then sent to the other chamber for approval. Often, there is a similar "companion bill" offered by another legislator in the other chamber, and that bill goes through the same hearing process.
If the bill is accepted by the members of both chambers, the two versions are sent to a joint conference committee where members from both bodies forge a single, final bill. Often provisions of either bill are either dropped or, if noncontroversial, added.
The conference report describes the intent and scope of the legislation, impact on existing laws and programs, the position of the executive branch, and views of dissenting members. There was no such language in the report related to the provision that made sound recordings works made for hire. The provision was inserted at this stage in the Senate/House conference report because it was represented as simply a technical correction to the existing law.
Once the lawmakers approve these changes, no provision in the final conference report can be removed, despite opposition, and the final version of the legislation is sent to the president for his signature.
In this case, President Clinton signed the huge omnibus spending bill containing the four-line work-for-hire provision on Nov. 29, 1999.