rooted in the Constitution, arising from Article I, Section 8, or for other reasons? Secretary WALLIS. Well, I would have to ask a lawyer for the exact legal basis for it, but the Constitution, of course, unless it were made clear that this is not a self-executing treaty, would say the treaty has the force of constitutional law. We do not think that we ought to get ourselves into that situation in either this case or any similar case. Mr. KASTENMEIER. It is true that we do not disagree about whether it is self-executing or not. I guess the question that the committee is interested in is the basis of the Administration's position uniquely with respect to intellectual property derived from Article I, Section 8, which provides Congress shall have the power to enact the nation's copyright and patent laws, or is the basis for the position derived from a different policy? Secretary WALLIS. There is the provision you mention, but we do think it would be essential in the bill for Congress to explicitly state that it is passing this law only subject to that condition, that Congress retains that power, and that this does not become an overriding constitutional power the way treaties can become. There is a provision in the Berne Convention itself that suggests that it is not self-executing. That was only put in 1967. Prior to that, the State Department had taken the position that if we were to join it, it would be self-executing. But after the change in 1967, the Department changed its position. Mr. KASTENMEIER. I see. I appreciate the clarification. I have only one last question. I would not call it a political question, but Mr. Yeutter anticipated or responded to the views of some who have reservations about adherence. And I think it is fair to say that within this country there are groups, whether these are industrial groups or otherwise, that have a strong interest in copyright law, but they do not have an interest particularly in international trade. The nature of their industry is such that it is essentially a domestic interest that they have. Accordingly, I assume that they, and there may be more than one industry involved, feel that current copyright law is adequate for their purposes, and that adherence to Berne may raise questions or rock the boat, or propose issues for them in future years which they do not care to confront. Therefore, although you, I think, made the argument that they need not fear Berne on that account, nonetheless there is certainly no inducement for them to solicit Berne adherence. And there may be other industrial or commerce groups or other organizations in the country that may have that point of view. I just wanted to raise that and see if you had any other observations to make with respect to that, Mr. Yeutter? Mr. YEUTTER. No. Only to say that first of all I do not believe that there is a risk of any consequence at all to them in this exercise. I indicated that earlier. And if there be fears in that area, my judgment would be that they are irrational fears. This would not be the first time that irrational fears have been articulated either to the Congress or to the Administration so we obviously must deal with those when they emerge. But we should not make public policy decisions on such a basis. Mr. KASTENMEIER. May I just interrupt to say I am talking not about user groups. Mr. YEUTTER. Yes. Mr. KASTENMEIER. I could introduce another range of interests which would be essentially user groups. I am talking about proprietary groups. Mr. YEUTTER. Yes, I understand. And I would hope that their fears can be satisfied or that all of us can demonstrate to them that the concerns really are not legitimate or practical concerns. Aside from that, though, I would have to say that they ought to be appreciative of the fact that there are others in this country who do have an interest in this subject on an international basis, and they should appreciate the fact that the United States as a nation has an interest because here is an area which has very substantial export potential, and a very substantial opportunity to add to our standard of living maybe for Americans as a whole. It may not affect them at all, but it may affect a lot of other Americans. But we have to be very careful that we are not hypocritical, and that we do not articulate double standards in the world. Our objective here is to try to give some protection to American copyrights. In this case, patents, trademarks, trade secrets, and a lot of other things around the world where, as Secretary Baldrige indicated, we are now the victim, and it is important to us as a nation to remove as many opportunities, as we can, for that kind of reprehensible conduct to occur and to adversely affect many of our businesses and our people. To the degree that joining the Berne Convention will contribute in a positive way to that outcome, and we believe it will, then that is a laudable objective for Americans as a whole even though it may be of no relevance to some segments of our society. Secretary BALDRIGE. Mr. Chairman, if I could add one point to that, speaking practically, politically on a change like this? There are a lot of people in the United States of America who simply do not care. They do not know enough about it. It does not affect them at all, they do not think, although they could be wrong. If you put those people to one side and just lined up all of the people and institutions who had either an interest in seeing this pass or an interest in seeing it not pass, those who have an interest in seeing it passed would far, far, far outweigh those who have reservations. I am sure that Clayton Yeutter's experience is the same as mine. We are deluged with businesses who have real problems in theft and piracy along intellectual property lines, and while they are not all copyrights-some of them are patents, some of them are just standard ripoffs, copies and so forth-those groups all have a common interest. Where you strengthen copyrights, it cannot help but help you on patents and so forth. Mr. KASTENMEIER. Thank you. The gentleman from California, Mr. Berman. Mr. BERMAN. Just hearing that last answer, I am wondering are countries like Thailand, Taiwan, Indonesia, are they members of the Berne Convention? Maybe I should put it more diplomatically. Are the countries where some of the major copyright counterfeiting and pirating alledgedly going on, are these countries basically in the Berne Convention? Mr. YEUTTER. A number of them assuredly are. Secretary BALDRIGE. Thailand is. Indonesia is not. Thailand is a member of Berne. Indonesia is not. We have been talking to both those countries bilaterally. And we have been using bilateral means. If we did join Berne, it would help us in most of those cases. Mr. YEUTTER. If I may just add to that, that simply indicates that there are two challenges in this area. One is to get the countries, the major countries of the world to adopt standards that are deemed desirable in this area including us. We have not joined it either. And then, two, once they have adopted the standards, to follow them. And the second challenge is that there are nations that are members of Berne just as there are nations that are members of the UCC who simply ignore their responsibilities to undertake what they have agreed to do. That is a separate problem. Mr. BERMAN. You have had a lot of success, I think, with Singapore? Mr. YEUTTER. Yes. We have been working that issue very hard in Asia and we have now begun to work it very hard in Latin America, in particular. But we do not intend to ignore anybody around the world. Mr. BERMAN. Let's take a question that staff raised. It relates to the whole issue of whether we need separate implementing legislation, whether the chairman's approach as opposed to the Administration's approach, and this question of defamation causes of action and protection of authors for the period of the copyright, the life plus 50 years. I remember most defamation actions basically extinguished with the life of the injured party. Berne seems to require as to these kinds of misuse of an author's work, seems to require a longer period where the cause of action remains alive. Is this not just one example of an area where we might need to legislate and amend existing law? Secretary BALDRIGE. May I ask Mr. Keplinger to answer that because he is closer to the legal aspect than I am? Mr. BERMAN. Sure. Mr. KEPLINGER. The whole issue of moral rights is a very complex one. This particular issue of the duration of the right is a difficult issue. I am sure that Mr. Karp will testify in some detail about some of these provisions. But one of the features of the copyright law actually provides some basis for the assurance of moral rights protection in this country. And that is the right, exclusive right of the copyright owner to authorize the preparation of derivative works, and that right is one which gives the author the ability to safeguard himself against uses of the work that he does not want. And that right, of course, would endure for the full period of the copyright. Mr. BERMAN. That is one part of it. If you are talking about derivative works. Mr. KEPLINGER. Yes, sir, that is true. Mr. BERMAN. Anyway, I guess these are the kinds of issues we are going to be considering as we move ahead on all of this. I have no further questions, Mr. Chairman. Mr. KASTENMEIER. I thank my colleague. That concludes the questioning. On behalf of the committee, I want to express our gratitude to this distinguished panel for their contributions, individually and collectively, this morning. Secretary Baldrige and Ambassador Yeutter and Secretary Wallis, and also Mr. Keplinger, thank you for your contributions this morning. And we will doubtless be in further touch during the course of movement on this and other related issues. The last witness this morning will be Mr. Irwin Karp, a friend and familiar face to the subcommittee. He will be testifying in his capacity as chairman of the Ad Hoc Working Group on the U.S. Adherence to the Berne Convention. The Ad Hoc Working Group, as we learned from Secretary Wallis' testimony, was created at the suggestion of the State Department with the assistance of Mr. Harvey Winter who also is here this morning, and who is one of the government's leading experts on international intellectual property. The Ad Hoc Working Group has prepared a report on the compatibility of domestic law and Berne, and so I am very pleased to greet Irwin Karp and to recognize him for his own explanation of the report of the working group. Mr. Karp. STATEMENT OF IRWIN KARP, CHAIRMAN, AD HOC WORKING GROUP ON U.S. ADHERENCE TO THE BERNE CONVENTION Mr. KARP. I would like to thank you for the invitation to testify on the report prepared by the Ad Hoc Working Group. I would ask that my statement be included in the record along with a forward of the report and such other portions of it as you wish. Mr. KASTENMEIER. Without objection that will be done. [Statement follows:] SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES COMMITTEE ON THE JUDICIARY Statement of Irwin Karp on H.R. 1623, July 23, 1987 Mr Chairman, my name is Irwin Karp. I am grateful for your invitation to testify on the Final Report of the AD HOC WORKING GROUP ON U.S. ADHERENCE TO THE BERNE CONVENTION (the "AD HOC GROUP"), and to comment on some of the Report's conclusions which bear on key provisions of H.R. 1623. The Bill, introduced by you and Representative Moorhead, would amend the Copyright Act to implement, and permit U.S. adherence to, the Berne Convention.* Berne is the 100-year old international copyright treaty which has established effective standards for copyright protection in 76 countries, including all major copyright nations except the Soviet Union and the United States. I was Chairman of the Ad Hoc Group, which dissolved after the publication of its Final Report in the Summer of 1986. Copies of the Report and comments from interested parties, as published in the Columbia-VLA Journal of Law & the Arts (Vol. 10, No.4), have been provided to the Subcommittee [cited as "VLA, p. "]. The Report also * I also will comment on conclusions of the Report as they bear on the Berne Implementation Bills introduced in this session by Senator Leahy (S. 1301) and by Representatives Moorhead and Fish (H.R. 2962). |