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tic Works,1 the world's premier multilateral copyright treaty. This international convention has several provisions that conflict with current American copyright law. In addressing these conflicts, the implementing legislation employs a minimalist approach, making only those changes to American copyright law that are clearly required under the treaty's provisions.

The benefits of the legislation will be multifold. United States adherence to the Berne Convention will establish multilateral relations with twenty-four countries with whom such relations do not currently exist. Further, U.S. membership in the Berne Union is a part in the larger picture of reform of our trade laws, as the Berne standards, it is hoped, will ultimately serve as standards for the General Agreement on Tariffs and Trade (GATT). Since the United States runs a positive balance of trade for copyrighted items, Berne membership should contribute to a continuation of that net advantage. Moreover, the legislation is rooted in the proposition that the United States can join the Union while maintaining a strong and vibrant Library of Congress, which of course serves the public by being a depository of our cultural heritage. Last, by placing American copyright law on a footing similar to most other countries, especially in the industrial world, our domestic law as well as the international legal system are improved. The net benefits will flow to American authors and to the American public.

II. STATEMENT OF LEGISLATIVE ACTIONS

The Committee, acting through the Subcommittee on Courts, Civil Liberties and the Administration of Justice, has devoted a great deal of time to the inquiry about whether the United States should adhere to the Berne Convention and if so, what sort of implementing legislation is necessary.

On March 16, 1987, Subcommittee Chairman Kastenmeier introduced H.R. 1623. In his floor statement, he explained that the proposed legislation was designed "to raise all the questions that must be asked for the fullest range of public and private interests to be aware of what Berne adherence will mean now and tomorrow." 2 On July 6, 1987, the Administration requested introduction of legislation that would make American copyright law compatible with the provisions of the Berne Convention.3 Shortly thereafter, on July 15, 1987, Congressman Moorhead introduced H.R. 2962, the Administration drafted bill.4

Both bills were based, in part, on the toil of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, a group of individuals who joined together in 1986 at the request of the State Department to identify provisions of U.S. law relevant to Berne and to analyze their compatibility with Berne. Under the leadership of its Chairman, Irwin Karp, and the guiding hand of Harvey Winter,

1 Hereinafter the Berne Convention for the Protection of Literary and Artistic Works will be referred to as the "Berne Convention." When necesssary, a particular Act of the Berne Convention is identified. Where a particular article is cited, the reference is to the Paris Act of 1971. unless some other Act is mentioned.

2 133 CONG. REC. 1293, 1294 (daily ed. March 16, 1987). H.R. 1623 is cosponsored by Mr. Moorhead, Mr. Boucher, Mr. Bryant and Mr. Bustamante.

See Letter from Hon. Malcolm Baldrige to Hon. Jim Wright (dated July 6, 1987).

* See 133 CONG. REC. E2897 (daily ed. July 15, 1987).

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Office of Business Practices in the Department of State, the Working Group issued a final report and formally submitted it to the executive and legislative branches. 5

Prior to creation of the Ad Hoc Working Group, and indeed prior also to the 100th Anniversary of the Berne Convention (which occurred on September 9, 1986), there was heightened interest in the United States accession to the Convention. This interest was manifested during the 99th Congress, when two days of hearings were held by the Senate Judiciary Subcommittee on Patents, Copyrights and Trademarks. After the hearings, a bill was introduced in the Senate by Senator Mathias.7

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During the 100th Congress, a total of six days of hearings were held in the House of Representatives by the Subcommittee on Courts, Civil Liberties and the Administration of Justice on the two pending legislative proposals (H.R. 1623 and H.R. 2962).8

The first two days of hearings were general in nature, covering all issues raised by U.S. adherence to the Berne Union. On June 17, 1987, the Subcommittee received testimony from the Register of Copyrights (the Honorable Ralph Oman) and a law professor (Professor Lyman Patterson, School of Law, University of Georgia). On July 23, 1987, the Subcommittee heard from a panel of Administration witnesses (the Honorable Malcom Baldrige (the late Secretary of Commerce); the Honorable Clayton Yeutter (United States Trade Representative); and the Honorable W. Allen Wallis (Under Secretary of State); and the Ad Hoc Working Group on U.S. Adherence to the Berne Convention (Mr. Irwin Karp).

On September 16 and 30, 1987, the Subcommittee held hearings on the specific issue of moral rights and the Berne Convention. On September 16th, the Subcommittee heard from Peter Nolan, for the Motion Picture Association of America, and Kenneth Dam, representing IBM, both of whom advocated adherence to Berne, but who testified that current U.S. law on moral rights is sufficient for adherence. The Subcommittee also heard from David Ladd, for the Coalition to Preserve the American Copyright Tradition, and John Mack Carter, for the Magazine Publishers' Association, both of whom opposed adherence to Berne, principally on moral rights grounds. On September 30th, a panel of artists testified in favor of a strong moral rights provision, which would permit certain artists to object to modifications in their works. Those testifying were Sydney Pollack, a film director; Frank Pierson, a screenwriter; William Smith, a visual artist; and Elliot Silverstein, a film director.

* See Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, reprinted in 10 COLUM.-VLA J. LAW & ARTS 1 (1986) (hereinafter referred to as Ad Hoc Working Group Final Report].

See Hearings on U.S. Adherence to the Berne Convention Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary, 99th Cong., 1st & 2d Sess. (1985-86) (hereinafter referred to as Senate Hearings, 99th Congress].

7 See S. 2904, 99th Cong., 2d Sess. (1986); 132 CONG. REC. S14508 (daily ed. Oct. 1, 1986). Two bills are pending in the United States Senate: S. 1301 (Senator Leahy) and S. 1971 (Senator Hatch, on behalf of the Administration). Two days of hearings were held by the Judiciary Committee Subcommittee on Patents, Trademarks and Copyrights: the first day was held on February 18, 1988, and the second on March 3, 1988. On April 13, 1988, the Subcommittee marked-up S. 1301 and reported it favorably, as amended, to the full Committee. On April 14, 1988, the Committee reported favorably S. 1301 unanimously by voice vote.

"See Hearings on Berne Convention Implementation Act of 1987, Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary, 100th Cong., 1st & 2d Sess. (1987-88) [hereinafter referred to as House Hearings].

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Professor Edward Danich of the George Mason University Law School; also testified in support of a strong moral rights provision. On February 9, 1988, the subcommittee conducted a fifth day of hearings, with particular focus on the jukebox compulsory license, formalities and architectural works. Testimony was received from a panel of witnesses on jukebox issues: Gloria Messinger, representing the American Society of Composers, Authors and Publishers (ASCAP); Robbin Ahrold, representing Broadcast Music, Inc. (BMI); and Wally Bohrer, representing the American Music Operators Association (AMOA). A second panel presented testimony on formalities and architectural works: Dean David Walch, on behalf of the American Library Association; and David E. Lawson, for the American Institute of Architects.

On February 10, 1988, the subcommittee held a sixth and final day of hearings. Testimony was presented on all issues by Professor Paul Goldstein, School of Law, Stanford University; Barbara Ringer, Former Register of Copyrights; August W. Steinhilber, Chairman, Educators Ad Hoc Committee on Copyright Law; and Morton David Goldberg, Information Industry Association.

In addition to the six hearing days, during a congressional recess that occurred in November 1987 (during the Thanksgiving holiday week), a delegation of five Committee Members travelled to Geneva, Switzerland, and Paris, France, for consultations with foreign copyright experts from government, academia and private industry on whether the U.S. should join the Berne Convention and, if so what changes would be necessary in our current copyright law. The trip was the first time any country has ever requested foreign consultation on domestic legislation required to join an international intellectual property treaty. Recognized experts in international copyright law from major industrial nations (the United Kingdom, France, West Germany, the Netherlands, Spain, Switzerland, Denmark, Sweden, Finland, and Israel), a socialist country (Hungary), and one developing nation (India), met with the Members in Geneva at the World Intellectual Property Organization— an arm of the United Nations. Bringing to bear their diverse experiences on the question of U.S. adherence to Berne, the consensus of the consultants was that the U.S. should and can adhere to Berne without making major changes in U.S. law. 10

In Paris, the Members met with international film producers and also with international film directors. The former expressed their concern about moral rights, contending that such laws impinge on the rights of copyright owners and their ability to make and effectively exploit films. They favor a system akin to the one currently in effect in the United States, where the producer, rather than the director or screenwriter, has final control over a film. The directors, on the other hand, advocated stronger moral rights laws in the United States, and decried changes in films made without the consent of the director and screenwriter. Additionally, while in Paris, the Members met with representatives of the French govern

10 A transcript of the W.I.P.O. consultations was prepared and is available as an appendix to the hearing record produced by the Subcommittee on Courts, Civil Liberties and the Administration of Justice, supra note 9. See Roundtable Discussions on United States Adherence to the Berne Convention (November 25-26, 1987) [hereinafter referred to as Roundtable Discussions].

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ment (Ministry of Culture and Communications) and a performing rights society (SACEM). The French public and private representatives all generally expressed support for U.S. adherence to the Berne Union.

On March 9, 1988, the Subcommittee on Courts, Civil Liberties and the Administration of Justice marked-up H.R. 1623. After general debate, the subcommittee-a quorum of Members being present-approved a substitute amendment. Conceptually, the amendment-offered by Chairman Kastenmeier-adopted a minimalist approach: that is, the adherence of the United States to the Berne Convention can be accomplished with only minimal changes to United States law.

The amendment eliminated sections in H.R. 1623 relating to moral rights and architectural works. It was premised on a finding that current American law is adequate on those subjects to allow the United States to join the Berne Convention. By removing all references to moral rights in the bill, the amendment leaves current law exactly where it is and allows it to develop-or not develop-in exactly the same way it would have developed-or not developed-had the United States not adhered to Berne. As to architectural works, the amendment was premised on the conclusion that the United States should not move precipitously on an issue that touches very fundamental concepts, long drawn in law, with respect to the non-protection under copyright of creativity more appropriate to design or patent protection. In this regard, the amendment merely clarified that architectural plans are already protected under the general category of pictorial, graphic and sculptural works. Last, the amendment made it abundantly clear in the bill's findings and declarations that Berne is not self-executing. After the vote on the substitute amendment, the subcommittee voted to report the measure to the full Committee in the form of a clean bill.

On March 28, 1988, the clean bill-H.R. 4262-was introduced by Subcommittee Chairman Kastenmeier, with twelve cosponsors: Mr. Moorhead, Mr. Synar, Mrs. Schroeder, Mr. Crockett, Mr. Berman, Mr. Bryant, Mr. Cardin, Mr. Fish, Mr. DeWine, Mr. Coble, and Mr. Slaughter (of Virginia).

On April 28, 1988, the Committee considered H.R. 4262. After general debate, two amendments were offered by Chairman Kastenmeier. The first confirmed and clarified the provisions of the bill relating to moral rights and self-execution of the treaty. The second made technical changes to the sections of the bill relating to coin-operated phonorecords (jukeboxes). Both amendments were adopted by voice vote. Then, with a quorum of Members being present, H.R. 4262 was favorably reported by voice vote, no objections being heard.

III. BACKGROUND

This background statement places U.S. adherence to the Berne Convention, and the proposed implementing legislation, in the larger context of three subject matter areas: first, the Berne Convention in international copyright law; second, the Berne Conven

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tion and international trade; and, third, the underlying philosophy of the implementing legislation.

A. THE BERNE CONVENTION IN INTERNATIONAL COPYRIGHT

In order to appreciate the importance of U.S. adherence to the Berne Convention, it is useful to start with the Convention's history and successive revisions, its role in international copyright, administration of the Convention by the World Intellectual Property Organization, the relationship of Berne to the Universal Copyright Convention, and Berne and developing countries.

The Berne Convention is the oldest and most respected international copyright treaty.

In 1886, the Convention was concluded at Berne, Switzerland and the Berne Union came into being. Since then, the Convention has been successively completed and revised seven times: at Paris (1896), Berlin (1908), Berne (1914), Rome (1928), Brussels (1948), Stockholm (1967), and most recently, at Paris (1971). From an initial membership of eight states, the Union now boasts seventyseven members, adhering to one or more of the principal Acts of the Union.

The Berne Union includes nations from all regions of the globe, at all levels of development. In the Western Hemisphere, Canada and 10 Latin American Republics adhere to Berne; in Europe, virtually every major state in Western and Eastern Europe adheres. Twenty-four states of Africa and 10 from Asia and the Pacific adhere. Membership includes highly industrialized nations such as Japan, Canada and France; industrializing countries such as India, Brazil and Mexico and developing countries such as Benin and Sri Lanka.

Major states not members of the Berne Union include the Soviet Union, China and the United States of America.

1. History of the Convention

The Berne Convention of 1886 culminated over 25 years of study and conferences which were undertaken by representatives of authors and artists, journalists, publishers, academics and governments, acting to replace the growing patchwork of European bilateral copyright arrangements with a simple, multilateral treaty respecting authors rights. These bilateral agreements often imposed a variety of conditions and restrictions upon rights as well as a variety of formalities which had to be complied with as conditions of protection.

In 1878, during a Literary Congress at Paris, the International Literary and Artistic Association was founded. In 1882, the Association adopted a resolution stating "that the need for the protection of intellectual property was the same in all countries, and that complete satisfaction of this need could only be obtained by the constitution of a 'union for literary property'

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Between 1884 and 1886, the Swiss Federal Council convened three sessions of a diplomatic conference to develop an internation

11 S. LADAS, 3 THE INTERNATIONAL Protection of Literary and Artistic Property 75 (1938)

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