8. Works of Applied Art. The Berne Convention states that it shall be a matter for legislation in member countries to determine the term of protection of works of applied art in so far as they are protected as artistic works but that such term shall endure at least 25 years from the making of such a work. It seems clear that on this point the United States copyright law is in compliance with the Convention.

As discussed above, pictorial, graphic, and sculptural works are copyrightable, and they include works of applied art to the extent that such works contain features which are original works of authorship and can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the work. Works of applied art are protected for the normal terms of copyright.

Apart from duration of protection, it may, however, be useful for the Congress to consider the practices of Berne states with respect to the extent of protection for "works of applied art" under copyright or other statutory schemes. Congress has expressed an interest in the consequences of extending copyright to forms of industrial creativity, and the relevance of Berne to this concern may merit further study.

9. Works Made For Hire. United States copyright law differs from that of most Berne members in that it treats works prepared by employees within the scope of their employment and certain other specially ordered or commissioned works as "works made for hire." The employer/commissioner is treated as the author and initial copyright owner72/ and the copyright lasts for either 75 years from publication, or 100 years from creation, whichever term expires first.73/

72. 17 U.S.C. $201 (b). 73. 17 U.S.C. $302(c).

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Neither of these principles is expressly addressed by the text of the Berne Convention, but neither appears to conflict with it. Article 1 states that the purpose of Berne is the "protection of the rights of authors in their literary and artistic works." But "author" is not defined, and the Guide to the Berne Convention states that this is because "on this point too, national laws diverge widely, some recognizing only natural persons as authors, while others treat certain legal entities as copyright owners, some imposing conditions for the recognition of authorship which others do not accept."74/

Thus the fact that copyright vests initially in corporate or other entities in the United States under the "made for hire" doctrine probably poses no problem with regard to potential United States adherence. The Ad Hoc Working Group reached the same conclusion.75/ As to term, since Article 7(3) requires that anonymous or pseudonymous works be protected for fifty years "after the work has lawfully been made available to the public," and the term under United States law applies to these works as well as to works made for hire, it seems reasonable that the term is sufficient. Indeed, it is intended in practice to approximate 50 years after the author's death.76/

10. Mechanical Reproductions of Music. Article 9 of the Convention states the general principle that authors of literary and artistic works, including music whether or not accompanied by words, have the exclusive right of authorizing the reproduction of those works in any form. Article 13 of paragraph (1) contains a limitation of the author's exclusive rights in regard to the recording of musical works. Each member country of the Union may

74. Wipo Guide at 11.

75. Ad Hoc Working Group Report at 613.

76. S. Rep. No. 473, 94th Cong., 1st Sess. 121 (1975).

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impose its own reservations and limitations on the author's exclusive right to make recordings of music once the author has already authorized the making of a recording of his music, provided that the author receives equitable remuneration. Member countries thus may provide for compulsory licenses to record musical works in their domestic legislation.

Section 115 of the United States Copyright Act makes nondramatic musical works subject to compulsory licenses, permitting the making and distribution of phonorecords of such music by others after phonorecords of the nondramatic music have been distributed to the public in the United States under the authority of the copyright owner. Section 115 provides that a person may obtain a compulsory license only if his or her primary purpose in making phonorecords under the license is to distribute them to the public for private use. This section also provides the procedures to be followed in paying royalty fees to the copyright owner and specifies the amount of the fee. The compulsory license provisions of section 115 of the United States Act seem to be in harmony with Article 9 of the Berne Convention.77/

11. Public Broadcasting Compulsory License. As noted earlier, Article 1lbis of the Convention grants, to the author, the exclusive right to broadcast his or her work to the public. Paragraph (2) of this article, however, provides that it is a matter for legislation in the countries of the Union to determine the conditions under which the exclusive right may be exercised.

Section 118 of the United States Copyright Act constitutes a compulsory license for noncommercial (public) broadcasting. The compulsory license is limited to two categories: published nondramatic musical works and

77. The Ad Hoc Working Group reached the same conclusion. Ad Hoc Working Group Report at 31.

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published pictorial, graphic, and sculptural works. The Copyright Royalty Tribunal is charged with the duty of establishing the terms of the compulsory licenses and the schedule of the rates to be paid, if voluntary negotiations fail. In addition to the performance or display of eligible works, public broadcast entities may also engage in the production, reproduction, and distribution of transmission programs containing eligible works, for the purpose of public broadcast transmissions.

The provisions of section 118 seem generally to be in harmony with Article libis paragraph (2) of the Berne Convention, even if the "agreed licensing" interpretation is the correct one, although the reference to "moral rights" may require further study.

The Ad Hoc Working Group concluded that the public broadcasting compulsory license is compatible with the Berne Convention in the performing rights area, but that it is unclear as to whether the license is compatible in the reproduction rights area, since independent, nonbroadcasting organization program producers have the benefit of the license to make recordings, and recordings made by those producers are not justified under the "ephemeral recording" provision of Article 1lbis(3). It is arguable whether the grant of a compulsory license to reproduce would qualify under the "special cases" exception under Berne Article 9(2).78/

12. Fair Use. Berne member states' handling of this often thorny issue, known in the United States as "fair use," is anything but uniform. Here it must be understood that the general language of Berne acquires meaning only in the context of national legislation.

78. Ad Hoc Working Group Report at 561-563.

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Among the Berne "fair use" provisions with which United States law appears largely compatible, and which receive no detailed treatment here, are Articles 2bis(1) [political and courtroom speeches], 10(1) [quotations], 10(2) [fair use for teaching purposes], and 10bis(1) and (2) [current events, economic, political and religious reportage and broadcasting].79/

These provisions cover much of the "traditional" scope of fair use, but not the type of "whole-work" duplication which has led to the disputes in Congress and the courts over the photocopying of whole works80/ and the magnetic tape duplication of cinematographic works81/ and sound recordings.82/

Among the members of the European Economic Community (all of whom are Berne members), the copyright laws and practices of Denmark, the Federal Republic of Germany, France, Italy, Luxembourg, and the Netherlands all permit private copying of works for personal use. 83/ The Federal Republic of Germany provides for a levy on equipment and media to generate funds to compensate copyright owners for the income lost by the existence of private copying.

79. This compatibility is due either to Berne's permitting the outright exclusion of the subject matter from copyright or permitting states to exempt certain reproductions and performances from copyright liability. 80. Williams & Wilkins Co., Inc. v. United States, 487 F.2d 1345 (Ct.C1. 1973), affirmed by an equally divided court, 420 U.S. 376 (1975). For a discussion of the intricacies of U.S. law concerning photocopying, see H. R. Rep. No. 1476, 94th Cong., 2d Sess. at 66-79 (1976); H.R. Rep. No. 1733, 94th Cong., 2d Sess. at 70-74 (1976); and the Report of the Copyright Office on Library Photocopying at 24-58 (1983).

81. Universal City Studios, Inc. v. Sony Corp. of America, 464 U.S. 417 (1984); Encyclopaedia Britannica Educ. Corp. v. Crooks, 558 F. Supp. 1247 (W.D.N.Y. 1983); 447 F. Supp. 243 (W.D.N.Y. 1978).

82.

83.

See generally the legislative history of the Record Rental Amendment of 1984, which amended 17 U.S.C. $$109 and 115. H.R. Rep. No. 987, 98th Cong., 2d Sess. (1984); S. Rep. No. 162, 98th Cong., 1st Sess. (1983).

G. Davies, Private Copying of Sound and Audiovisual Recordings 2 (1984). See note 94 supra for a list of countries that provide a royalty or tax on the equipment or media used for copying of audio and video materials.