Mr. KASTENMEIER. Mr. Lawson, we quite candidly have not had a great deal of interest expressed in this particular aspect of adherence to the Berne Convention, that is to say anything relating to our architectural works. I am not clear on whether architects generally care very deeply about this, among others.

Let me ask you, can the United States adhere to the Berne Convention without modifying current laws for protection of architectural works in your view? Have you studied that aspect?

Mr. LAWSON. I am not an attorney, but it is my understanding that the implementation of the provisions of the Berne Act would not change current law, and we would support that position. Mr. KASTENMEIER. You said what?

Mr. LAWSON. It is my understanding the implementation of the provisions of the Berne Act would not change current law. In fact, the main procedure, as I again understand it, and I am certainly not an attorney, is that the fact of a building being constructed would fall under rights of the copyright with provisions of the Berne Act which are not the condition with current copyright law, only the drawings which are instruments of the service are copyrightable.

Mr. KASTENMEIER. You are saying there would be under these statutory provisions a difference?

Mr. LAWSON. Yes.

Mr. KASTENMEIER. A different impact, but you are not saying whether or not we must have such provisions in order to adhere to Berne. Do you happen to have a view about that?

Mr. LAWSON. I really don't, because I am not assured on that sort of legislation.

Mr. KASTENMEIER. If we had an extensive provision on architectural works and if we had also some reference to moral rights in that connection, it would be my first reaction it would apply substantially to architectural works. That is to say, there is very likely to be an alteration, let's say, in a building, if it refers to the building or in designs of building in the future, and whether the original architectural design was so modified in contradiction to what the original architect had in mind that might be a fairly frequent subject of implementation of moral rights.

Mr. LAWSON. I just, Mr. Chairman, do not feel that it is a practical concern as it relates to architecture. It is traditional in this country a man's home is his castle, a person's building is something that is their building. And they ultimately have control over it. A recent example we would have in our practice is we put a substantial addition onto a major existing office building, and in the process we re-faced a whole series of span drill panels which changed the character of that building, but it was done for the purpose the gold tiles, which were falling off this building, could no longer be obtained from Italy, from the seven families that created them 15 years ago. So I see that as a practical problem as it relates to architecture.

Materials change, things evolve that are perhaps better for buildings 10 or 15 years from now, and I see the owners updating their buildings at that time.

Mr. KASTENMEIER. Thank you.

Dean Walch, I take it one of your concerns is not perhaps so much for every library but certainly for the National Library, the Library of Congress, in terms of depositing works. If there were no requirement for registration or deposit of works, as a librarian you would feel deeply we would be missing the deposit of artistic, literary and other works in the National Library. That would be of concern to you, is that correct?

Mr. WALCH. That is correct.

Mr. KASTENMEIER. Is there anything that we might do, even if we did change these requirements, to still induce the deposit of these works short of making it a condition of copyright protection in some form or another, some other method of continuing to acquire the broad range of creative works in this country in the National Library?

Mr. WALCH. It would be difficult to respond to that. There is nothing that jumps into my mind as comprehensive as the present procedure which now stands for including those items, getting them into the Library of Congress. I don't know of anything that would be as comprehensive as that. If you left it to a voluntary basis, I am sure there would be a shortfall.

Mr. KASTENMEIER. One other question. Although you have limited your statement here this morning to formalities, is there anything else about Berne adherence in implementing legislation that might injure in some respect the American library that you see? Mr. WALCH. No. I believe that the position of librarians is thatwell, as I have noted, many librarians are not conversant with the Berne Convention. I think that those of us that have studied the matter to a degree have taken the position we wish to be cooperative, we don't see anything that is particularly so negative we strongly oppose. There is concern if the Berne Convention were embraced what might happen to certain procedures and laws that are now in place. Would some things come in which we are just not sensitive to now?

Mr. KASTENMEIER. You indicate a widespread concern about the new technology and resultant difficulties, for example, computer software, digital software, electronic transfer of information. But those are contemporary problems for the library irrespective of whether we have Berne or not. Berne presumably will not either complicate or solve any of those problems. Is that not basically correct?

Mr. WALCH. I think that is correct. They are really on the leading edge of problems that libraries are facing now in trying to accommodate the utilization of those materials on a fair basis for both libraries and those who produce them.

Mr. KASTENMEIER. Thank you. The gentleman from North Carolina, Mr. Coble.

Mr. COBLE. Thank you, Mr. Chairman.

Mr. Lawson, I believe you touched on this in response to one of the chairman's questions, but let me put it to you again. It seems to me it is clear. Do you agree it is clear in the legislation that the owner of the building, as distinguished from the owner of the copyright, would have the final word as to what could be done with the building once it is constructed?

Mr. LAWSON. That is the general case. Our documents state that the architect is the owner of the documents in that no substantial alterations can be made without proper compensation to the architects. In many instances, that is a negotiable item with owners, particularly public owners who are sure they are going to be putting on additions at a later date.

The problem in our area has really been exacerbated by the professional liability crisis that has hit our industry quite severely or our profession, and if there is an unauthorized construction using our documents or parts of our documents, we can be held liable, even though we knew nothing about the construction. That is why there is a completely renewed interest in this area which prior to a couple years ago architects were not terribly concerned about. Does that answer your question?

Mr. COBLE. Yes. Do you want to be heard on that, Dean Walch? Mr. WALCH. No.

Mr. COBLE. Gentlemen, what problems do you anticipate, if any, might develop if we use the "artistic character" concept contained in H.R. 1623? Let me read that: "The exclusive rights of a copyright owner in an architectural work shall apply only to the work's artistic character and artistic design and shall not extend to processes or methods of construction."

Now, I guess what I am saying in another way is do you fear that that might be leaving the door too wide ajar?

Mr. LAWSON. As it relates to architecture, the protection of idea

Mr. COBLE. I am not suggesting that it does. I just wanted to hear what you all had to say in response.

Mr. LAWSON. As it relates to architecture, the protection of an idea is not one that is extended by copyrighting. However, the design of the originality and the assembly of these ideas into a structure would be copyrightable in our understanding of this.

To try and legislate or have a court determine what is artistic and what is not artistic is a very, very difficult process. I, personally, was involved in a group that we wrote an urban design ordinance for the City of Madison, and there has been some implementation of that, but it is one judged by a series of professionals that are in the design profession. How this could translate to a court would be difficult for me to understand. I think just simply using the word "original" or "original expression" would be adequate. Mr. COBLE. So I guess what you are saying, Mr. Lawson, is that maybe it might open the door too widely.

Mr. LAWSON. Yes.

Mr. COBLE. Dean, do you want to be heard on that?

Mr. WALCH. No comment.

Mr. COBLE. Thank you, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from California, Mr. Lungren. Mr. LUNGREN. No questions, Mr. Chairman.

Mr. KASTENMEIER. The gentleman from Maryland.

Mr. CARDIN. I have just one question of Mr. Walch.

Can you think of any incentive that Congress could give in order to get voluntary filings with the Library of Congress on works other than as a precondition to protection under copyright law or a precondition to a lawsuit?

Mr. WALCH. There is nothing that leaps to mind at this moment that impresses me that it would, that the procedure would be as comprehensive as it is now. Right now we look to the Library of Congress as being the depositor of all those works, and they are registered, and that is a very comfortable feeling for libraries, knowing there is at least one place in the United States all these items are placed.

I think we could study that matter and perhaps come up with some suggestions, but nothing comes to mind.

Mr. CARDIN. It might be helpful if you want to go back and talk to some of your colleagues, it seems to me some statement by Congress could in fact be extremely helpful if we were to eliminate the formal requirements. There may well be some action that Congress could take that would encourage the continuing filing, even though it is admittedly voluntary, not as a precondition to protection? Mr. WALCH. Fine.

Mr. CARDIN. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Are there any other questions of the witnesses? If not, I wish to thank the two witnesses. I think Mr. Lawson has raised some questions about inclusion of architectural works which, frankly, has been a neglected area in terms of study with respect to inclusion. So it is most helpful. Both of you have been helpful to the committee. We appreciate your contribution.

This concludes today's hearing. Without objection, I would like to include for the record a letter, and it is from Irwin Karp, dated yesterday, together with a statement of the National Committee for the Berne Convention relevant to some of the questions raised this morning.

[The information follows:]

The National Committee for the Berne Convention respectfully submits the enclosed statement for inclusion in the Subcommittee's record of its hearings on pending bills to implement U.S. Adherence to the Berne Convention. Attached, is a list of groups which subscribed to NCBC's memorandum: WHY THE UNITED STATES SHOULD JOIN THE BERNE CONVENTION.

The statement comments on the bills' provisions concerning copyright notice, registration and recordation of copyright transfers -- the basic "formalities" required by the Act. In summary, the statement notes:

1. To be compatible with the Berne Convention, the U.S. Copyright Act should not provide that the exercise or enjoyment of rights it grants are "subject to any formality"; Article 5(2) of Berne precludes such conditions.

2. Section 401 on notice of copyright is made compatible with Berne; the bills provide that notice shall be voluntary rather than mandatory. But the proposed abolition of section 404 would deny the benefit of voluntary notice to many authors/publishers of articles, poetry, etc.

3.

Section 411 makes registration of copyright, and section 205(d) makes recordation, a condition for infringement suits; they are incompatible with Berne and should be repealed. However, 3 bills retain these conditions, while S. 1301 adds an unnecessary and harmful new penalty.

4. Sections 411 and 205(d) were not meaningful incentives for registration prior to 1978. The new Copyright Act created far more powerful new incentives after 1977: section 412, compelling registration as a condition for the essential remedies of statutory damages and attorneys' fees; and section 410(c) which conditions mandatory prima facie effect of a copyright certificate on registration within 5 years of publication.

Sincerely yours,

Irwin Karp,

The National Committee for

The Berne Convention

CC:

Members of the Subcommittee