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A. Self-execution.

H.R. 1623 declares that the Berne Convention is not a self-executing treaty. This means that its terms only become law through enactment of implementing legislation. Rights allegedly established under the Convention but not recognized under U.S. law could not be maintained in U.S. courts.

In general, treaties are either "self-executing" or "executory." Treaties in the latter category require implementing legislation. In order for a treaty to be self-executing, it must contain stipulations to that effect. As noted in Part III, some provisions of Berne appear sufficiently explicit to be capable of direct application. We know the Convention is applied directly in some countries. Article 30 provides that accession to Berne automatically entails acceptance of all the provisions both as to obligations of countries and rights of authors. To avoid direct application by United States courts, a Congressional declaration like that in H.R. 1623 is essential. Moreover, the Copyright Act itself must be amended to include the declaration regarding nonself-execution. H.R. 1623 also guards against Berne self-execution by making the amendments to the Copyright Act take effect after United States adherence to Berne. This should make the statute superior to the treaty under our Constitution since it is later in time.

B. No Retroactive Effect.

In the past retroactivity has clearly been a major stumbling block
The Senate in the 1954

to United States adherence to the Berne Convention.
ratification of the Universal Copyright Convention (which is expressly not
retroactive) identified retroactivity as one of the reasons we were unable to
ratify Berne. 100/ Section 15 of H.R. 1623 expressly states that works which

100. Report of the Senate Foreign Relations Committee, supra note 12, at 3.

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have fallen into the public domain in this country prior to United States adherence to Berne would not be protected anew after adherence. The rejection of any retroactive effect is consistent with American traditions against the removal of works from the public domain. In addition, the retroactive application of the Berne Convention might raise serious Constitutional concerns which, as of yet, have not been fully studied.

On its face, however, Article 18 of the Berne Convention appears to require some recapture of Berne Convention works protected in the country of origin. The Ad Hoc Committee identified five areas where recapture was arguably mandated. 101/ The actual practices of Berne Convention members, however, are considerably less clear. No other country has maintained formalities as long as we have, and therefore no one has faced a retroactivity problem of the same magnitude. No consensus has yet arisen concerning the obligations imposed by Article 18. On this issue, it would appear that testimony from European experts on the Berne Convention familiar with retroactive applications would be helpful. if United States courts were to rule that section 15 breaches the Berne Convention, would we have any choice but to amend our law?

Query:

101. Ad Hoc Working Group Report at 589-590. The five areas are as follows: (1) published works that did not meet the national eligibility requirements of the 1909 or 1976 Copyright Act upon first publication. (2) Works, other than those subject to ad interim copyright, first published outside of the U.S. without notice prior to January 1, 1978. (3) Works first or subsequently published within the United States without notice prior to January 1, 1978. (4) Works published on or after January 1, 1978 and prior to Berne adherence, other than in compliance with the notice provisions of 17 U.S.C. Ch. 4, where such omission is not excused and can no longer be cured. (5) Works published prior to January 1, 1978, in violation of the domestic manufacturing and ad interim provisions of the 1909 Act.

Under H.R. 1623, section 101 of title 17 would be amended to include

a definition of a "Berne Convention work." In addition, section 104 concerning eligibility to claim copyright would be amended to entitle Berne Union members to U.S. protection. These provisions would appear to be noncontroversial and necessary in order seriously to consider Berne Convention

adherence.

D. Architectural Works.

Under H.R. 1623, section 102 of title 17 would be amended to include "architectural works." Section 101 would define such works as "buildings and other three-dimensional structures of an original artistic character, and works relative to architecture, such as building plans, blueprints, designs, and models." New section 120 of title 17 would create several limitations on the exclusive rights in architectural works. Protection would be limited to a building's "artistic character and artistic design" and would not extend to processes or methods of construction. Pictorial representations of architectural works would be permitted and remedies of injunction and demolition would be curtailed. The owners of a building embodying an architectural work, without the consent of the author or copyright owner, would be entitled to make "minor alterations" or "other alterations to such building in order to enhance the utility of the building."

In studies on the Berne Convention, a consensus has been reached that protecting "architectural works" is a mandated obligation of the Convention. H.R. 1623 meets this obligation by enumerating "architectural works" as

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a category of copyrightable subject matter in section 102. The limitations on this right by section 120 do not appear to violate mandated Berne Convention protection.

Protection for architectural works would be a major change in American law, and represents a major obstacle to United States adherence to the Berne Convention. Protection would be limited to the "artistic character" of the building. This is consistent with Berne Union concepts on the subject. Yet, it is unclear how many of the total number of buildings constructed in the United States contain an "artistic character." Of all the homes built in the United States in 1986, what percentage would have been copyrightable had H.R. 1623 been in effect: 1%, 5%, 25%, 50%, or 90%.? The question is, of course, impossible to answer. It can only be said that H.R. 1623 makes substantial changes in a large domestic industry, but the scope and nature of the change must await clarification at future hearings.

H.R. 1623 could also impact the rights of home owners, commercial real estate owners, developers, and public agencies regulating land use. Several questions occur. Would the provision preclude the Owners of copyrighted buildings from making substantial cosmetic changes without the consent of the copyright owner? Would it preclude the owners of a copyrighted building from demolishing the building in order to erect a new structure? Would it limit the discretion of local zoning boards? Changes such as these could portend major shifts in business practices in the United States.

E. Moral Rights.

H.R. 1623 would establish the moral rights of "paternity" and "integrity," subject to some important limitations. Section 106 would be amended to establish independently an author's right "to claim authorship of

the work," and "to object to any distortion, mutilation, or other alteration of the work that would prejudice the author's honor or reputation... The language of the bill repeats almost verbatim the text of Article 6bis(1) of the Convention. New section 119 would make moral rights freely alienable. In addition, standard industry practices of editing and adapting a work for publication or use in broadcasting, motion pictures, or phonorecords would be permissible in most instances.

The formal recognition of a paternity right would change some existing case law on the subject. The prevailing view in the United States has been that an author does not have an inherent right to be credited as the author of the work.102/ H.R. 1623 would apparently alter this position. Legal opinion is divided about the extent to which existing state law or federal trademark law protects against distortion or other alterations prejudicial to the author's reputation. It seems obvious that few, if any, states have settled rules regarding the integrity right.

F. Jukebox Compulsory License.

H.R. 1623 modifies, but does not repeal, the jukebox compulsory license. The change basically allows negotiated licenses between copyright owners and jukebox owners to supercede the statutory compulsory license presently in the law. In absence of agreements, however, the statutory scheme mandated in the current Copyright Act would continue.

The Berne Convention requires the owners of musical compositions to be accorded an "exclusive" right for performance by means of records. Some Berne Union countries do regulate organizations representing authors and

102. Vargas v. Esquire, Inc., 164 F.2d 522 (7th Cir. 1947), cert. denied, 335 U.S. 813 (1948); Peckarsky v. American Broadcasting Co., Inc., 603 F. Supp. 688 (D.D.C. 1984).