STATEMENT OF L. RAY PATTERSON Before the Subcommittee on Courts, Civil Liberties H. R. 1623 Mr. Chairman, I am L. Ray Patterson, Pope Brock Professor of Law at the University of Georgia. I very much appreciate the opportunity to present to the Subcommittee my views on the adherence of the United States to the Berne Convention, but I would like to interpose a caveat. I am not an expert on the Berne Convention and I do not propose to comment on such matters as notice, deposit and registration, as I do not feel that I have anything useful to contribute on these issues. I do believe, however, that I have a useful perspective to offer on the bill under consideration by reason of my work in the history and theory of American copyright law. Because I consider myself primarily a theoretician, my comments are intended to be analytical, not judgmental. The Berne Convention is based on the natural law theory of copyright as an author's property right. Title 17 is based on the theory that copyright is the statutory grant of a monopoly primarily for the benefit of the public. For unlike Berne, copyright in this country has a constitutional basis. As Congress attempts to accommodate American copyright law to Berne requirements, my perception is that there is a danger that Congress may unwittingly enable the courts to move American copyright law further from its constitutional foundations than is already the case. In dealing with copyright, it is helpful to view it as a tripartite concept which must serve the interest of three groups: the entrepreneur (who distributes the work); the author (who creates the work); and the consumer (who uses the work). The scheme is as follows: American copyright law Property treats the rights of the entrepreneur and author as one, that is as economic rights which are property. The moral rights of the author have been ignored, and the rights of the consumer under the fair use doctrine are minimal and continually minimized. Berne deals with all three rights, and if the United States is to adhere to Berne, it would be wise to amend the Title 17 to accommodate all three interests in a manner compatible with Berne and consistent with the copyright clause of the Constitution. Although the copyright theory of Berne is the natural right of the author and the American copyright theory is the grant of a statutory monopoly, the theory is only the starting point. I am somewhat surprised to find that in many respects, Berne is more compatible with American traditions than is American copyright law. Perhaps this is because Berne has more integrity as a body of copyright law than the American law. We continually speak of copyright as an author's right, but we treat it as a publisher's right, and while Congress enacts copyright legislation in the public interest, courts tend to interpret that legislation in the interest of the copyright proprietor. Thus we have long ignored the moral rights of the author, and our fair use doctrine is more fiction than fact. The moral rights amendment to Title 17 proposed in H. R. 1623, if enacted, will contribute to the lack of integrity in American copyright law for two reasons. First, it turns the moral right of the author into a property right; second, it is designed to do as little harm to the copyright owner as possible: What it gives the author in section 7 of H.R. 1623 it takes away in section 9, Limitations on the Moral Rights of Authors. The limitations effectively give the assignee of the copyright the right to exercise the moral rights of the author. My conclusion as to the inefficacy of the proposed amendment is based on my reading of copyright history. For if that reading is correct, the result of the amendment will be to enhance the power of the copyright owner as opposed to that of the author simply because of the relative bargaining positions of the parties. The problem as I see it is that the proposed amendment does not take into account the fact that protection of the moral rights of authors has two dimensions: protection against the assignee of the copyright; and protection against third parties. The amendment, dealing as it does, with the problem of protection against the assignee of the copyright, does not do a very good job for several reasons. First, the moral right is made independent of copyright. Second, it contains limitations that effectively negate the right against the assignee. It is, for example, freely alienable. Third, it places the burden on the author to exercise the right when another prepares the works for dissemination. But the amendment may be all too effective against third parties, because it will surely serve to inhibit comment, parody, satire and criticism, and thereby pose a threat to free speech rights. The failure to recognize these points, I assume, is the failure of analysis because the concept of moral rights is foreign to the concept of American copyright law as embodied in the various copyright acts over the years. Moral rights protect the author's personal rights, as opposed to his property rights. American copyright statutes, on the other hand, protect the property rights of the copyright owner, not the author. My point here is twofold: first, Congress should not be misled into thinking that this amendment provides adequate protection for the author's moral rights against the assignee of the copyright, the person against whom protection is most needed; second, the amendment implicates free speech concerns because of its inhibiting effect on parody, satire, and criticism. For the separation of the author's moral rights and copyright may well have an effect that Congress does not intend. It will make copyright a dual monopoly, one for the author, one for the copyright owner. The chilling effect that this result will have on free speech rights is very real simply because of the in terrorem use that may be made of the moral rights doctrine as proposed. The mere threat of a lawsuit is an effective deterrent in most instances. The protection the author needs is against the assignee of the copyright, not third parties. Copyright infringement is the remedy against others. Because the moral rights doctrine is for the author, it would seem to be appropriate to consider it in conjunction with the one provision of the statute that is solely for the author's benefit, the termination right, which is inalienable. The termination right of the author gives the author a remainder interest in his works which provides a basis for recognition of his right to protect the integrity of the work and therefore his or her reputation in conjunction therewith. Even if the moral rights amendment as proposed is accepted, the author continues to have a remainder interest in the copyright after assignment, and, I believe, would have a cause of action for mutilation of the work against the assignee on the ground of harm to his or her reversionary interest. A moral rights amendment should make clear that an infringement of moral rights is an infringement of copyright; it should make clear that moral rights, being personal in nature, are inalienable; and it should limit the moral rights to be coextensive with the life of the author. But it should not be subject to the technicalities that are imposed upon the author for the exercise of the termination right. The second respect in which Berne is characterized by more integrity than Title 17 is in regard to fair use. The importance of the fair use doctrine is that it implicates free speech rights, that is the public interest which exists in the right of access to copyrighted material that is publicly disseminated. The problem is one that has come to the fore in the United States with the elimination of publication as a condition for statutory copyright and the application of copyright to electronic media of communication. Congress dealt with the problem after a fashion in section 107 of Title 17, the fair use doctrine. The fair use doctrine codified, however, is a nineteenth century doctrine created in conjunction with the use of printed materials, not electronic communication, and courts have not given it a warm reception. The core problem is that the copyrightability of works is a matter of form, not content. Under the statute, the televised evening newscast is entitled to no less copyright protection than the motion picture Gone With the Wind. Yet, from a public policy standpoint, the two works involve completely different considerations. The Berne Convention deals with the problem of fair use more directly and effectively than section 107. For one thing, it permits the use of a work that does not conflict with the normal exploitation of that work. See Article 9 (2). For another, Article 2(8) of the Berne Convention provides that: "The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information." A closely related provision is Article 2bis, which leaves the protection of political speech and speech in legal proceedings to member nations. The importance of the fair use doctrine stems from three factors: first, copyright law is a law of communication which allocates rights in, and to the use of, ideas expressed in a tangible medium; second, copyright law must accommodate the interests of three groups--the author, the entrepreneur, and the user; third, the only provision of Title 17 which recognizes the interest of the user is section 107, the fair use provision. At the very least, material which is vested with a large public interest as news reports and judicial decisions should not be as closely bound by copyright as works which represent the creative endeavors of an author and which give rise to moral rights. Section 107 is the most logical place to make the distinction to ensure that copyright protection for works so critical to the free marketplace of ideas does not remove those works from that marketplace. To paraphrase Macaulay, the use of copyright to infringe free speech rights makes the circumstances of the public worse, the author's none the better. The time has come to recognize that copyright law in this country is moving further and further away from its constitutional moorings, and the danger is that it will not be long before it slips those moorings altogether. To enlarge the interpretation of the copyright clause to accommodate new technology is one thing; but to eschew the constitutional purpose of copyright in doing so is another. The constitutional purpose of copyright is to facilitate the flow of ideas in the interest of learning; its function is to protect the economic interest of the author. The function should serve the purpose, but we are rapidly reaching, if we have not gone beyond, the point where the function governs the purpose. When courts allow copyright owners to inhibit public access to what is essentially public domain material, as they recently have done in case dealing with news reports and judicial decisions in the context of electronic communication, the time has come for Congress to take notice. There is a touch of irony in the fact that the theory of Berne is such that moral rights do not give rise to the dual copyright monopoly that the proposed amendment will create; and that Berne provides protection for the public interest in a manner wholly consistent with American traditions of free speech that our copyright statute does not. My own view is that Congress can amend Title 17 to accommodate the adherence of the United States to the Berne Convention in a way that protects both the rights of authors and the traditions of copyright and free speech envisioned by the framers in the copyright clause of the Constitution. To demonstrate my point, I have attached an appendix to this statement which contains proposed amendments to Title 17 which, I believe, accomplish these goals. |