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called into question by some language of the Berne Convention.64/

The permissible exceptions created by Article 10(2) of Berne for educational purposes would appear to allow several of the limitations of the performance right established by section 110. But, section 110 covers a rather wide range of public performances, some "live" and others of a "broadcasting" nature. A number of the exceptions in section 110, particularly section 110(4) and (5), are clearly unusual insofar as the practices of Berne states are concerned. The delicacy of compromises within the Berne Union on "minor reservations" to non-broadcast public performance rights makes it desirable for the United States to examine its law carefully in this area. The Ad Hoc Working Group found the section 110 exemptions to be substantially compatible with the Berne Convention, with minor questions of compatibility existing with respect to section 110(2) and (9).65/

Of course, section 110 as a whole represents a difficult and important reconciliation between our rightsholders and user groups. Our own compromises should not, we suggest, be disturbed except upon the most pressing need and clear conflict with Berne. Congress, should it determine that incompatibilities exist between Berne and parts of section 110, may wish to examine structural rather than substantive changes in affected provisions.

6. Cable Retransmission. Under the Paris text of the Berne Convention, Article 1lbis covers broadcasting, cable originations, and cable retransmissions. That provision, in its entirety provides:

Article llbis

(1) Authors of literary and artistic works shall enjoy
the exclusive right of authorization:

64. The primary questions appear limited to sections 110(4), of our law. The first two are discussed in this part. discussed, supra, part II (B)(3).

65. Ad Hoc Working Group Report at 521.

110(5), and 116

Section 116 is

45

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(11) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

(iii) the public communication by loud-speaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

(2) It shall be a matter for legislation in the
countries of the Union to determine the conditions
under which the rights mentioned in the preceding para-
graph may be exercised, but these conditions shall
apply only in the countries where they have been
prescribed. They shall not in any circumstances be
prejudicial to the moral rights of the author, nor to
his right to obtain equitable remuneration which, in
the absence of agreement, shall be fixed by competent
authority.

(3) In the absence of any contrary stipulation,
permission granted in accordance with paragraph (1) of
this Article shall not imply permission to record, by
means of instruments recording sounds or images, the
work broadcast. It shall, however, be a matter for
legislation in the countries of the Union to determine
the regulations for ephemeral recordings made by a
broadcasting organization by means of its own facili-
ties and used for its own broadcasts. The preservation
of these recordings in official archives may, on the
ground of their exceptional documentary character, be
authorized by such legislation.

When considering U.S. adherence to the Berne Convention, it is important to determine whether the compulsory licensing provisions of section 111 of the U.S. Copyright Act of 1976 66/ meet the requirements of the Convention.

66.

In the case by copyrighted works transmitted as part of cable originated programming, the Copyright Act accords an exclusive right of public performance and the compulsory license does not apply.

The obligations imposed on Berne members by Article 1lbis have been the subject of controversy for a number of years. At present, no consensus has arisen. In general, the debates over Article 1lbis reveal two differing views. Under one view, Article 1lbis gives authors and copyright proprietors an exclusive right to authorize retransmission which may be restricted only after actual private negotiations have failed to produce satisfactory results (sometimes referred to as "agreed licensing"). Under a second view, adhering nations have wide discretion in determining "the conditions" under which the cable retransmission right is exercised, provided some form of equitable remuneration is established. 67/ Further, there is a difference of views on the basic question of when any liability for cable retransmission of broadcast programming arises for local or distant signals, or both, and whether such distinctions may apply to foreign broadcasts.

Recently, a document addressing the obligations under Article llbis was prepared by the International Labor Office (ILO), the Secretariat of UNESCO, and the International Bureau of the World Intellectual Property Organization (WIPO).68/ Following a protracted and sometimes heated debate, the Berne, UCC, and Rome (1961) Subcommittees agreed that:

149. The solution of the issues in question should be found at the national level in each country according to the social and political conditions prevailing there and subject to the country's international

67. A nation taking this latter view is Austria. Under section 17 (3) of the Austrian copyright law, no protection is granted against simultaneous cable retransmissions of the programming of the Austrian national broadcasting organization. The Austrian statute provides that licenses for the broadcasts of this state broadcasting organization include cable retransmission within Austria. In addition, under section 59(a) a compulsory licensing system is established for the retransmission of certain foreign broadcasts; authors may exercise their right for equitable remuneration only through licensing bodies.

68. Annotated Principles of Protection of Authors, Performers, Producers of Phonorecords and Broadcasting Organizations in Connection with Distribution of Programs by Cable, reprinted in 20 Copyright 131 (1984).

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obligations.

The subcommittees are of the opinion that the draft annotated principles, together with the observations contained in the said report, could form an important element in the consideration of such issues at the national level.69/

While the draft principles are only an extended commentary on the equities and law surrounding the retransmission and origination activities of cable television systems, they are nonetheless an extraordinary window looking out upon the tumultuous development of cable, principally in Western Europe. The principles document and, more importantly, the development of national laws on cable television should be carefully examined by the Congress as a key issue affecting United States adherence to the Berne Convention.

Our preliminary view is that it is possible to conclude that the 1976 Copyright Act's treatment of cable television meets the standards of the Berne Convention. The Ad Hoc Working Group reached the same conclusion.70/ The legislative history behind section 111 reveals a Congressional concern that a requirement of prior consent for the retransmission of broadcast signals was not practical; we agree that cable retransmissions are a public performance; we seek to provide an equitable remuneration under due process of law; we generally impose full copyright liability for cable originations including altered or non-simultaneous retransmissions; and the "moral" interests of the author are protected by section 111(c)(3), which prohibits the alteration of the broadcast programming.

69. Report, Subcommittees of the Berne Executive Committee, Intergovernmental Copyright Committee of the UCC and Intergovernmental Committee of the Rome Convention, para. 9 (Geneva, Switzerland, 5-7 December 1983), reprinted in 18 Unesco Copyright Bulletin 78, 102 (1984).

70. Ad Hoc Working Group Report at 519.

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"Works of

...

7. Architectural Works. architecture" and "threedimensional works relative to ... architecture" are specifically listed in Article 2(1) of the Berne Convention in the enumeration of copyrightable subject matter. These works are listed separately, moreover, from "works of applied art" and "illustrations ... relative to architecture." Although the plain text of Berne appears to require copyright protection for original three-dimensional manifestations of an architect's work (which is clearly not the current United States law), the practice of Berne states should be surveyed to identify more precisely the nature of the Berne obligation.

...

Under present United States law, copyright for two-dimensional technical drawings (like architect's blueprints) does not protect the utilitarian object portrayed. 17 U.S.C. $113. The original artistic features of utilitarian articles can be protected by copyright, but only to the extent that the "design incorporates pictorial, graphic, or sculptural features that can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C. $101 (definition of "pictorial, graphic, and sculptural works"). The overall shape of a utilitarian article is not protected by United States copyright, no matter how artistic or attractive the shape may be.

The Ad Hoc Working Group concluded that, at least with respect to works of foreign origin, the United States law provides insufficient protection to buildings and other works of architecture for adherence to Berne. The Working Group noted that buildings and other structures are explicitly protected by statute in France, Japan, and the United Kingdom.71/

71. Ad Hoc Working Group Report at 605, 607-609.