The U.S. Trade Representative has advised this Subcommittee that: U.S. adherence to Berne has become an That is ironic. For years, Canada has been intercepting U.S. television programming, distributing that programming via satellite, and rebroadcasting it on Canadian cable systems without any payment to, or authorization from, the copyright owners of these works. In response to this systematic theft, Senator Leahy introduced a bill in 1983 which would deny Canadian participation in the distribution of royalties under our cable television compulsory license. During Senate hearings on this measure, 107 the Copyright Office testified that this could not be done: the U.S., though not a member of Berne, does impose liability for cable rebroadcasts of television signals108 and, because of national treatment under the U.C.C., must provide similar compensation of Canadian works so used; even though Canada, while it is a member of Berne109, does not afford such copyright protection either to Canadian or U.S. works. 107 See Hearing on S.736 before the Subcommittee on Patents, Copyrights and Trademarks of the Committee on the Judiciary of the Senate, 98th Cong., 1st Sess. (Nov. 15, 1983). 108 17 U.S.C. § 111. 109 Canada subscribes not to the 1971 Paris text of Berne, nor even the 1948 Brussels text, but to the 1928 Rome text, which does not establish, as a minimum standard, liability for cable retransmission. Canada's upgrading of its Berne adherence from the 1928 text to the 1971 text is not necessary to resolve the U.S.Canadian dispute. All that is required is for Canada to amend its domestic law to grant to U.S. citizens (and its own) the equivalent protection that the U.S., without the compulsion of the Berne requirement, has long given to Canadians. "Acceptance of new Berne obligations" on the part of Canada may be useful in lobbying here for U.S. adherence to Berne, but it need not be "at the heart of important improvements we hope Canada will make." That requires only emulation of U.S. law. 2. China. The U.S. Trade Representative has also advised this Subcommittee that: [T]he Peoples Republic of China (PRC) is Not necessarily. China may be "considering" the Berne Convention, but China, like many countries, also may join the U.C.C.; and in that case, the U.S. will have multilateral copyright relations with China. 111 Further, our two nations already have a trade agreement requiring mutual copyright protection, and in the final analysis, China will not deprive itself of the U.S. market nor our Berne-level protection. 111 Agreement on Trade Relations, July 7, 1979, United States-People's Republic of China, 31 U.S.T. 4652, T.I.A.S. No. 9630. Finally, the U.S. Trade Representative has cited Thailand as: one example of the problems caused by our protection that other Berne members now enjoy This alleged "high level of protection" highlights the absence of any real benefit to Berne adherence. Thailand currently is a member of the 1908 Berlin text of Berne.114 Despite its Berne membership, Thailand is a center of piracy -- so much so that "on July 15th, the President initiated an investigation of Thailand's copyright practices under the GSP annual review measures."115 Thus, the United States, by joining Berne, can enjoy the same level of piracy "that other Berne members now enjoy," including the United Kingdom, a Berne member, which also has complained about piracy in Thailand.116' 114 As should be evident by now, the Berne Convention is not one uniform set of standards. A member state's obligations vary depending upon the particular Berne text it subscribes to. For example, rather than subscribing to the 1971 Paris text, regarded as requiring the highest levels of international copyright protection, Thailand subscribes to the 1908 Berlin Act, Canada subscribes to the substantive provisions of the 1928 Rome Act, while the United Kingdom, Argentina, Belgium, Israel, Norway, South Africa, Switzerland and Turkey subscribe to the substantive provisions of the 1948 Brussels Act. The Coalition is committed to the overall objectives of preserving, strengthening, and expanding copyright protection worldwide. The Coalition does not believe, however, that U.S. adherence to Berne is a necessary or desirable component of policy in achieving this goal. Adherence to Berne can be accomplished only by a fundamental change in our American copyright system - the introduction of the moral right into U.S. law. Its introduction would alter a carefully crafted balance and upset decades of settled practice, contract conventions, expectations, and risk allocations. Moreover, the benefits claimed to result from adherence are speculative and remote. Mr. KASTENMEIER. Thank you very much, Mr. Ladd, for that summary of the position of CPACT. Before we do open it up for questions, the committee would like to hear from Mr. John Mack Carter. STATEMENT OF JOHN MACK CARTER Mr. CARTER. Thank you, Mr. Chairman and members of the subcommittee, for this opportunity to submit testimony on behalf of the Magazine Publishers Association in such an important matter. Since I am going to jump quickly to accept your recommendation as well to summarize my statement, I request that my full statement be entered as a matter of record. Mr. KASTENMEIER. Without objection, your statement will be accepted and made part of the record. Mr. CARTER. Thank you. I am the editor-in-chief of Good Housekeeping magazine, and I am submitting this statement on behalf of the Magazine Publishers Association. MPA is an organization representing the interests of more than 200 publishing firms which publish over 800 consumeroriented periodicals with a circulation exceeding 290 million copies per issue. It is important to make that statement to indicate the size of the industry being directly affected in this matter. MPA opposed adherence to the Berne Convention. We commend Chairman Kastenmeier and Congressman Moorhead for constructive attempts to remedy Berne's problems in their bills. However, as Mr. Ladd has just testified, the fundamental problems created by Berne adherence cannot be solved by legislation. Mine is a different perspective from the three others who have testified this morning. Mine is the perspective of an operating officer, of an editor involved daily in carrying out this job of editing magazines. The American magazine industry as we know it today simply cannot comply with the moral rights provisions of Berne. Those provisions are foreign to American concepts, infringing on editors' freedom, making costly publishing delays inevitable, and possibly even creating a basis for injunctions to stop publication. I am not a lawyer nor an expert on copyright or on international trade, but I am here as an expert on editing a magazine, and I guarantee that adoption of moral rights would radically alter the way American magazines have been edited for over 200 years. The ramifications are enormous. The editor is responsible for seeing that each issue is published on time. Moral rights would curtail the editor's freedom of action and judgment, make the meeting of this responsibility exceedingly difficult, if not possible, and delays mean huge losses for the magazines. The editor has no choice. All materials must be ready by press time, and the closing of an issue requires that these materials be fitted, that some articles be cut in length or some language be added. It is the practice and the custom of the American consumer magazine industry that authors are not given final approval over the final editing of articles. Authors in the magazine industry are aware that such editing takes place. It would be an unfair burden |