Mr. KASTENMEIER. That, as I say, concludes the hearing today. We will stand adjourned until 9:30 tomorrow morning at which time we will proceed with the concluding hearing date on the subject of the Berne Convention. [Whereupon, at 11:35 a.m., the subcommittee was adjourned, subject to the call of the Chair.] BERNE CONVENTION IMPLEMENTATION ACT OF 1988 WEDNESDAY, FEBRUARY 10, 1988 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE, Washington, DC. The subcommittee met, pursuant to call, at 9:40 a.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Berman, Hyde and DeWine. Staff: Michael J. Remington, chief counsel; David W. Beier, counsel; Thomas E. Mooney and Joseph V. Wolfe, associate counsel; and Audrey K. Marcus, clerk. Mr. KASTENMEIER. The committee will come to order. The gentleman from Ohio. Mr. DEWINE. Mr. Chairman, I ask unanimous consent that the subcommittee permit the meeting today to be covered in whole or in part by television broadcast, radio broadcast, and/or still photography, pursuant to Rule 5 of the committee rules. Mr. KASTENMEIER. Without objection, the request is agreed to. This morning the subcommittee is having its sixth and final, we hope, day of hearings on legislative proposals designed to allow the United States to adhere to the Berne Copyright Convention. When I introduced my bill, H.R. 1623, a little less than a year ago, I said it was designed to raise all the questions that might be asked for the fullest range of private and public interests, to be aware of what Berne adherence might well mean now and for the future. The primary goal of the bill was to stimulate debate about issues and to further understanding about the Berne Convention in an open and public setting. Following the introduction of my bill, Mr. Moorhead introduced the Administration bill in the House, and the Senate bill was introduced by Senator Hatch. Another bill, yet a third form of Berne adherence proposal, was introduced subsequently by Senator Leahy. Today marks the end of the hearing process, which has not only consumed six legislative days for us here, but five days of consultations with European and other copyright experts abroad. With that in mind, I would like to offer the transcript of the roundtable discussions on U.S. adherence to the Berne Convention that occurred (663) in Geneva, Switzerland on November 25 and 26 and is currently available. If there is no objection, that can be received and made a part of the record. [The transcript is reprinted as Appendix follows:] Mr. KASTENMEIER. Next week, I am informed, the Senate starts its hearings on the proposed legislation. Normally, copyright bills evoke some form of controversy, and these bills are no exception. Controversy has swirled around what the Congress is required to do with respect to U.S. law in order to adhere to the Berne Convention. This is especially true in the areas of moral rights, architectural works, and there is increasing debate to an extent about what might have appeared to be a lesser issue in terms of formalities. I would observe that the compulsory license, particularly with respect to jukebox, seems to be less of a problem than might have been forecast. When I introduced the bill originally, I observed that in the best of circumstances this faces an uphill climb, but I think that a good part of the climb has been accomplished through the hearing proc ess. In this concluding morning we have several expert witnesses, guides to help us along our path toward the end. First we will hear from Professor Paul Goldstein from Stanford University Law School. Professor Goldstein has been of enormous assistance to the subcommittee over the past several years, including being the rapporteur of the 1984 Congressional Symposium on Copyright and Technological Change, and the chairman of the OTA advisory panel on intellectual property rights in the age of electronics and information. I have asked Professor Goldstein to review previous testimony presented to the committee, and then to report his conclusions. Professor Goldstein, we have your statement and would like to call you first to come forward. We are delighted to greet you here this morning and to listen to what you have to say. You may proceed as you wish, either from your statement, or if you wish to abbreviate your statement, you may do so. Actually, your statement is only 81⁄2 pages long. TESTIMONY OF PAUL GOLDSTEIN, STELLA W. AND IRA S. Mr. GOLDSTEIN. I will abbreviate my already abbreviated statement, and would ask that the statement itself be accepted for the record. Mr. KASTENMEIER. Without objection, that will be done. Mr. GOLDSTEIN. Thank you, Mr. Chairman, for inviting me to testify on the important questions raised by the H.R. 1623 and H.R. 2962. I should note for the record that in testifying before you today I speak strictly for myself and not on behalf of any client, organization or institution. My testimony divides into three parts. The first two parts draw directly on testimony previously presented to your subcommittee and distill two central themes: the dollars and cents of adhering to Berne, and the ethical sense of adhering to Berne. The third part of my testimony addresses questions to be considered in adjusting U.S. law to meet Berne standards. Before addressing these issues, two preliminary points are in order. First, Mr. Chairman, in reviewing the testimony presented to your subcommittee, I was struck by the depth and overall balance of the views presented. I congratulate your subcommittee and staff for assembling an array of views that is as diverse as it is well-informed. The record that you have assembled will substantially support informed legislative action on Berne. Second, I should note that I was particularly struck by the testimony of Register of Copyrights Ralph Oman, most notably by the last section in which he contrasts the arguments for and against adherence to Berne. I have no where seen a clearer, more objective analysis of the competing views. Let me first turn to the dollars and cents of adherence to Berne. Berne's proponents cite four principal benefits that would flow from adherence, ranging from the concrete to the abstract. At the concrete end of the spectrum is the simple fact that adherence to Berne will relieve American artists, authors, publishers and producers of the highly wasteful costs they must incur to get Berne protection through the back door of simultaneous publication in a Berne country. Second is the related risk that, if we do not adhere to Berne, Americans will find the Berne back door slammed in their faces. Third, and somewhat less concrete is the proponents' claim that membership in Berne will strengthen this country's hand in its bilateral and multilateral trade negotiations and will enhance United States leadership in the international copyright community. Finally adherence will strengthen the convention itself and thus the cause of copyright and authors' rights throughout the world. Berne's opponents argue that adherence promises no benefits over the short term and that the long-term benefits are speculative at best. The back door to Berne, they say, is neither cumbersome nor costly. Further, even without being a member of Berne, the United States has achieved considerable success in bilateral and multilateral negotiations. By reason of its economic importance, the United States already occupies a central role in international copyright policy making. While membership in Berne may strengthen the convention, opponents say, it will weaken the United States by limiting Congress' options in resolving issues created by emerging technologies. Finally, opponents argue that the changes required to conform U.S. law to Berne standards will plague our law with uncertainty and with all of the costs that attend uncertainty. The concerns expressed by Berne's opponents have merit. But they do not rebut the affirmative case for adherence to Berne. First, recourse to Berne's back door will always have some positive cost. Although the other benefits to adherence to Berne may be long term and, in that sense, speculative, their speculativeness makes them no less real. I can think of no more concrete evidence that adherence to Berne will strengthen this country's hand in its bilateral and multilateral treaty negotiations than the testimony given to that effect by the very administration officials who are charged with implementing our trade policy. Whether, and to what |