ity of too much controversy. I recall, either last week or the week before, we had two sets of publishers testifying before us.

One group is in favor of it, and said you don't have to worry a lot about the moral rights issue because it is not self-executing and would have to be followed with positive legislation so that battle will be fought another time.

Another group said no it is implicit in what is in there. When you can't get two groups some of which support the idea to even agree on what they think the extent of it is, it is a troubling facet of this issue.

I guess one of the things we fear the most in the Congress is uncertainty, is the unknown. I guess, one of the things I would say is I suppose the burden would be on those in support of a change to show that the present condition is no longer acceptable. For a lot of members who don't have a great deal of knowledge on this the first instinct is going to be if it is not that bad, why should we venture into it, because we don't know what we will be creating. That is not satisfying, but is a rational observation of the mine field in which you are playing here legislatively.

Mr. POLLACK. We would love to have the opportunity to be a part of making that decision or at least the opportunity to try to present you with facts or statistics or cases, examples of case law or anything that might help you to come to a decision over whether or not present United States law is sufficient to even begin to address the spirit of Berne.

Our position is that when you have a treaty the very essence of which is to protect the artistic rights of authors, when it starts with Victor Hugo and it continues on from there, our position would be that we would feel awful if we sat by and watched the implementation of a treaty started by a great writer, specifically, to give authors redress for damage done to their work, if we use that as a vehicle to only strengthen our economic interests abroad, and let the artists' position be status quo. That would be very depressing, indeed, and if there is someway that we can be of help in either as you say, this is a cloudy issue for you.

Maybe it needs the record of all case law where it has been attempted. Maybe we need examples of egregious mutilation to a work where there has been no redress.

Whatever it is as you say, if that is our job to help supply you with that then we would like very much to be a part of that. Mr. BERMAN. Would the gentleman yield?

Essentially what you were saying there is law pertaining to collective bargaining and management rights which defines how much you can cut into management rights in negotiations. Then there is the other question of society's interest in protecting its works of art. Is it fair to say then that what you are interested in, in the context of Berne and moral rights, is not the abuse of, and unfairness to artists on a work-for-hire system, but the societal question? Many people have come to me on the question of abuses of work for hire. Magazine photographers take incredible pictures and the editor or the publisher of the magazine files them away for some story, doesn't use them and the photographers can never get them back and use them for anything else five or ten years down the road. That could be viewed as abuses of the individual's rights.

Is the question here on Berne something different than that or is this a labor relations kind of thing?

Mr. SILVERSTEIN. Perhaps the issue can be clarified for you by a story told by our colleague, Melos Gorman who left Czechoslovakia some years go and is now an American citizen.

He tells the story that under the Communist regime in Czechoslovakia, he made a film which the government disapproved. They put it in a vault unchanged.

He says that that film some day will be released as he made it. They haven't changed the frame of it even though they didn't like it.

Here, however, if his superiors didn't like it, they would change it and it wouldn't be his film anymore. It was ironic he pointed out that under a totalitarian regime, he received more protection for the art than he did under a democratic regime.

Mr. BERMAN. But he got more money under the democratic regime. This is not for you an economic problem? Mr. POLLACK. The answer is yes.

Mr. BERMAN. I have been taking too much time here.

Mr. PIERSON. I would like to come back to the publishing in the same area. I think that the situation for the publishers is—we are a different case as the directors and writers in the motion picture basis. We are a very special case.

We are related in our working situation on the issue of moral right to a certain degree, but it is not-it does not follow a parallel all the way down the road.

The only point that I want to make and make it again and again to allay some of the fears and anxieties expressed by the publishers is we do not perceive the issue of moral rights as intruding into the actual workplace, which I think from reading Mr. Ladd's statement that they interpret this as reorganizing the balance of power between editors and publishers, et cetera.

There is a parallel in a newsroom and the motion picture business in terms of working against a deadline and balancing the needs of editors versus writers.

If we have to stop and deal with the moral right of the reporters and writers who are there working for hire and the contributors who have contributed pieces on piece work, well, it is 2:00 o'clock in the morning and you have got to get the copy to the presses by 4:00 o'clock in the morning. It would wreak havoc, no question, and that is why we suggest that they can be relieved of that anxiety if they understand this only comes into play at the time the movie is published.

Mr. LUNGREN. What you describe would remind me of the Congress of the United States, 435 of us trying to write a novel. We would probably meet that deadline as well as we do the budget.

Mr. SMITH. Čould I add something to what Congressman Lungren said. I think that in view of the way the moral rights principle is stated, I think it is important to answer one part of your hypothetical question by saying that the aspect of doing damage to my reputation is a critical thing here and so let me change your example just slightly.

You can take that picture-there have been French cases that were comparable to what you suggest you can take that picture

and put it in your closet, you can do privately-it does no damage to my reputation.

However, if you take the painting that you have bought from me, make drastic changes in it, my name still remains on it, and you exhibit it, this can be very harmful to my reputation. The moral rights principle as stated in the Berne Convention protects me and my reputation from such as assault.

Thank you.

Mr. KASTENMEIER. If there are no further questions-and the committee may have some questions for you, but I think if it has any additional questions, we can present them to you perhaps in letter form and you can reply for the record-that will conclude the panel's presentation this morning and we wish to thank for their contributions Mr. Pollack, Mr. Pierson, Mr. Smith, and Mr. Silverstein.

Thank you, gentlemen.

Mr. KASTENMEIER. Our next and last witness today is Prof. Edward Damich, a professor of intellectual property law at George Mason University School of Law.

Professor Damich has written extensively on the issue of moral rights for artists and we are delighted to have him here this morning after a rather long session with our panel.

Professor Damich, you have a statement before us, which is together with the appendices-you may proceed as you wish.

TESTIMONY OF EDWARD J. DAMICH, ASSOCIATE PROFESSOR OF LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW

Mr. DAMICH. I will summarize, Mr. Chairman.

To begin with, I think I should point out that I feel as if I labor under three disadvantages.

The first is that I am last the second one is that I am following a creative and entertaining panel; and I don't have the luxury of saying that I am not a lawyer.

With that, I will identify myself for the record as an associate professor of law at George Mason University.

I would like to express my appreciation for this opportunity to appear before you today.

I want to point out the views that I express are my own. I am not acting as a paid advocate of any group. I wish to explore with you the legal ramifications of this important subject.

My impression from reading the testimony on adherence to the Berne Convention is that the prevailing sentiment is in favor of U.S. adherence.

Although I agree with this sentiment, I am puzzled by the attempts of the proponents of adherence to minimize the differences between U.S. law and the requirements of the language of Article 6bis-the moral rights provision.

I am puzzled because it seems inconsistent with one of the most often repeated benefits of Berne viz-a-viz obtaining for the United States a leadership role in world copyright developments.

As I see it, one does not become the moral leader of the Berne Union by "squeaking by"-by explaining away one's noncompli

ance with the language of the convention by saying, "A lot of other members don't either.'

This seems to be an unpersuasive response to the pirating nations' challenge to "practice what you preach."

In short, can we insist on the provisions of Berne that help us economically and at the same time pay only "lipservice" to the provisions that discommode us?

I think not, so the thrust of my remarks here and of the written testimony that I would like to now make part of the record, with your permission, sir

Mr. KASTENMEIER. Without objection, your written testimony will be made a part of the record.

Mr. DAMICH [continuing]. Is that any Berne implementation bill ought to contain a moral rights provision that fairly complies with the language of article 6bis.

The first topic I would like to take up is the Ad Hoc Working Group's final report on U.S. adherence to the Berne Convention.

I think the group is to be commended for an excellent and thorough job in raising the issues that are to be addressed. However, as I stated in my comment to the preliminary report, I find that I disagree with their conclusions in part.

I disagree specifically where the final report states that there is substantial protection available for the "real equivalent" of moral rights under American statutory and common law.

I wish to quickly add, however, that if the issue or if the question is one of can we adhere to Berne, that is, will anyone object to our adherence or will we be prohibited in any way from adhering to Berne even if we never change the law, I think the answer has to be no.

I think we can join and I think that we will not face opposition in that regard.

As a matter of fact, I understand that Dr. Bogsch, Director General of the World Intellectual Property Organization, is on record as saying a similar thing.

The problem that I have is that the issue I don't think really is membership in the Berne Union, but the question is leadership in the Berne Union, which seems to be as I said before one of the reasons why we should join the union in the first place.

With that in mind, I think that the United States should adhere not to the standard of the lowest common denominator perhaps of the Berne Union, but rather to the language of Article 6bis, because I think it is the language that we will be pointing to with the pirating nations.

In my comments to the preliminary report, I stated looking at it from this viewpoint, "A comparison of the language of Article 6bis with the protection afforded moral rights in the U.S. leads to the inescapable conclusion that this protection is virtually nonexistent."

The reasons in brief I will state now, I go into them in detail in my written testimony.

With regard to the right of attribution, which is a word I prefer to the right of paternity, because I think it is gender neutral, there is no clear authority in American law that there is a right of attribution.

A lot is said in the final report about misrepresentation questions, that is, where the author is credited with work he did not write or if he has written a work and someone else is given credit for it.

But there is no authority cited in the final report that you have an affirmative right of attribution; that is, if there is nonattribution or if the name is removed, that you can insist on being associated with the work.

Second, the right to prepare derivative works does not compare with the right of integrity.

Third, there is more and clearer case authority for the nonexistence of moral rights as such than there is case authority to the contrary.

I think also that the Lanham Act will not solve the problem because it is ultimately always subject to being undercut by the possibility of waivers or disclaimers.

Finally, with regard to defamation and causes of action similar to those, namely those which are reputation based, they don't seem to address the Berne language regarding honor as well as reputa

tion.

Having said that, I don't think current law meets the standards of the language of Article 6bis.

I want to set the other boundary, which is that I disagree with what Mr. David Ladd said representing the American publishers, the Coalition to Preserve American Copyright Tradition. Moral rights are not alien or totally foreign to U.S. copyright tradition and purpose.

I think that if you look at the common law, the doctrine of common law copyright, you will see that there is concern not only for economic interests, but also for what I would call personal interests, which I think is a better term actually than moral rights, although I will concede and use the common term moral rights.

But I think it is important always to consider the theory, which is the fact that we are talking about the personality of the artist embodied in the creative work. Common law copyright in this country, which stems from before the Constitution, had these concerns in mind.

Further, I want to point out to the committee the recent case of Harper & Row v. Nation which also indicates that-expressly states that-there is a personal aspect to copyright.

Of course, despite the fact that the interests protected by moral rights are not alien to American copyright law, this does not mean that the law currently includes protection of the kind contemplated by the language of article 6bis.

As I have observed, even when noncopyright causes of action are added to the consciousness of the personal aspect of artistic creativity found in copyright law, it cannot be said that U.S. law attains this stature.

My final point is that I think a well-crafted legislative provision can accommodate the legitimate concerns of commercial interests. Much has been said about the dislocations that would occur if moral rights became a part of American copyright law. I think that some of these claims are alarmist in tone and do overstate the case,