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APPENDIX

Proposed Amendments to Title 17

Section 106 (a) (new) :

An

individual who is the author of a literary, artistic or musical work shall have the right-

(1) to claim authorship of the work; and

(2) to object to any distortion, mutilation,
or other alteration of the work that will
prejudice the author's honor or reputation.

The rights conferred in this section shall be referred to in this title as "moral rights."

Section 107 (revised):

Notwithstanding

the provisions of section 106, the fair use of a copyrighted work is not an infringement of copyright.

(a) The use of a work which does not conflict
with the normal exploitation of the work and
does not unreasonably prejudice the
legitimate interest of the copyright owner is
a fair use. See Berne, Article 9(2).

(b) The use of a work for purposes of news
reporting by one in the regular business of
news reporting is a fair use. See Berne,

Article 10.

(c) The use of news of the day, political
speeches, and material used in the course of,
or which result directly from, legal
proceedings is presumed to be a fair use. See
Berne, Article 8 (2)

(d) The use, by scholars and students for
purposes of research, study or the creation
of learned works, of unpublished archival
materials placed in a library to which the
public has access without restrictions

imposed on the use of the materials by the
author or an assignee of the author is a fair

use.

(e) The use of a literary, artistic or
musical work for purposes of parody, satire
or criticism which does not unreasonably
prejudice the legitimate interest of the
author or copyright owner is presumed to be a
fair use.

(f) The use by the subject of a work that is
a parody, satire or criticism in response to
that parody, satire or criticism is a fair

use.

Section 202 (a) (new) :

The transfer of copyright, or any of the rights thereof shall not divest the author of moral rights in a literary, artistic, or musical work. The moral rights shall be inalienable, and shall be enforceable against any assignee of the copyright or of any of the rights thereunder for the life of the

author.

Section 501 (amended):

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, or who imports copies or phonorecords into the United States in violation of section 602, or who, as an assignee of the copyright or a right thereunder, violates the author's moral rights, is an infringer of copyright.

Mr. KASTENMEIER. Very interesting and informative quite brief presentation.

On balance, you have a point of view as to whether we ought to adhere to Berne or not?

Mr. PATTERSON. Mr. Chairman, I think that depends upon the implementing legislation.

Congress can provide implementing legislation that would enable us to join Berne. And if it's properly done, we can protect and preserve our traditions of copyright.

I would not certainly have any objections to our joining Berne under those circumstances.

Mr. KASTENMEIER. You have correctly suggested that there are two different theories. We have been operating under a different system than the natural or the moral rights theory that's inherent in Berne.

The implication is quite apart from theoretical rights and wrongs; now adherence to a system which is predicated on a different theory might be unwise. I mean, after all, we developed our own copyright law, the basis of this is in the Constitution, it has a different theory. Why should we sacrifice that?

Mr. PATTERSON. Mr. Chairman, there is something of a paradox here.

If we analyze the copyright statute carefully, we will find that Congress clearly legislates copyright in terms of the constitutional theory that a copyright is the grant of a limited statutory monopoly.

On the other hand, the courts tend to interpret that statute more in line with the Berne theory of copyright. And there are certain advantages to Berne that we can pick up and improve our copyright statute.

The Fair Use Doctrine is an example. Under our theory, the copyright monopoly is essentially a monopoly of the market to protect the work for the purposes of the market.

Our Fair Use Doctrine is an equitable doctrine intended to protect the market. Therefore, any use, any use of the copyrighted work may very well be alleged to be an unfair use rather than a fair use.

Under Berne, it's the work that is the important thing, it's the work that is protected. Berne recognizes that there are certain kinds of works that should not have complete copyright protection, such as news reports, judicial decisions and so forth. And they make a specific exception.

So I think that we could do ourselves a great service by picking up the philosophy of Berne on this point and incorporate it into our Fair Use Doctrine and clarify it.

Mr. KASTENMEIER. I yield to the gentleman from Virginia.

Mr. SLAUGHTER. No questions.

Mr. KASTENMEIER. The gentleman from Maryland.

Mr. CARDIN. No questions.

Mr. KASTENMEIER. Well, I know the hour is late, but you would encourage us to make more profound change in our law. And while I think I can understand that theoretically, as one who has followed the laws before 1976, you must understand how difficult that

is because of conflicting interests, economic interests if you will, in this country.

Mr. PATTERSON. Mr. Chairman, I am not only familiar with that problem from 1976 events, I'm familiar with that problem from 1709 because I've studied copyright history, and that is the problem that we've suffered from throughout the history of Anglo-American copyright.

Mr. KASTENMEIER. As one who has wrestled with fair use to try to reconcile fair use problems more ideally in a sense, to revisit that question, reopen it in the broadest context would be, I think, as difficult as Berne adherence.

But, nonetheless, I think still you are correct in raising that issue. I think we will somehow have to look at it.

Mr. PATTERSON. Mr. Chairman, if I might add, I think one of the things that all groups I mentioned have got to realize, is that since copyright law has to accommodate the interests of these three groups, there has to be some compromise on the part of each group in the interest of a balanced copyright law.

Mr. KASTENMEIER. One last question.

Do you have any problem about incorporating other subject matter that we haven't heretofore covered, such as architecture, design, type face, et cetera?

Mr. PATTERSON. Yes, sir, I do. I think that represents a serious problem. But I also think that that is a problem that can be solved through the Fair Use Doctrine.

It's one thing to make a use of the architectural plans; it's another thing to make use of a building that has been made from those architectural plans.

One of the problems without a Fair Use Doctrine, as I see it, is the copyright law is primarily a matter of form and, therefore, courts are not able to make distinctions between the policy considerations that might very well be involved in different kinds of copyrighted works. That could be effectively done with properly drafted legislation.

Mr. KASTENMEIER. Professor Patterson, we appreciate your words of advice and your presentation which, of course, will appear in its entirety together with the appendices in the record.

I thank you for coming and being with us today.

Mr. PATTERSON. Thank you, Mr. Chairman.

Mr. KASTENMEIER. This concludes today's hearing. Until the next hearing date on this subject is announced, the Committee stands adjourned.

[Whereupon, at 3:20 p.m., the Subcommittee adjourned, subject to the call of the Chair.]

BERNE CONVENTION IMPLEMENTATION ACT OF

1987

THURSDAY, JULY 23, 1987

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES

AND THE ADMINISTRATION OF JUSTICE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:20 a.m., in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman) presiding.

Present: Representatives Kastenmeier, Synar, Berman, Boucher, Bryant, Cardin, Moorhead, and Coble.

Staff present: Michael J. Remington, chief counsel; David W. Beier, counsel; Thomas E. Mooney, Joseph V. Wolfe, associate counsels; and Audrey K. Marcus, clerk.

Mr. KASTENMEIER. The committee will come to order. Without objection, the subcommittee will permit the meeting to be covered in part by television broadcast, radio broadcast, and/or still photography, pursuant to Rule 5 of the committee rules.

The Berne Convention for the Protection of the Literary and Artistic Works, Paris Act of 1971, is still considered the world's most important copyright treaty. The treaty has 76 member nations, most of which are industrialized. The current trade crisis, the domestic budget deficit, the need to preserve American jobs and to promote the creative genius of the nation, make United States adherence to the Berne Convention, at least in my opinion, a significant intellectual property issue. It is perhaps the most important issue to be considered by the 100th Congress.

The Copyright Revision Act of 1976 took giant steps to in part place our law in conformity with Berne. Nonetheless, the United States still does not have a copyright law system which would allow Berne absent changes in the law. Since Berne is not self-executing, the task of this subcommittee is to determine what needs to be done to our domestic statutes in order to adhere, and whether the ensuing result is, indeed, a worthy objective.

This is not an easy assignment. This morning the subcommittee continues in its learning or input mold. On June 17, we held an initial day of hearings on the subject receiving testimony from the Register of Copyrights and a law professor, Professor Ray Patter

son.

In the interim, the Administration has forwarded an executive communication to the Congress expressing support for American

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