There are only minimal changes in U.S. law that have to be made for us to adhere, and the enabling legislation need make only those minimal changes. There are a few U.S. copyright provisions that do have to be changed because they are formalities that interfere with what Berne calls, and I quote, "the enjoyment and the exercise" of copyright rights. Those formalities are prohibited by Article 5(2) of Berne. That is the core article, I should point out, the substance of which has been in the Convention for over 100 years. It expresses the essence of Berne's existence as a treaty free of formality. Berne would permit a so-called two-tiered approach, as was discussed earlier, under which we could discriminate against American authors and copyright owners by applying different rules to works of U.S. origin and works of foreign origin. But that discrimination would be grossly unfair, like the discrimination against Americans under our late-and unlamented-Manufacturing Clause. I'll be pleased to go into that, Mr. Chairman, during Q and A if you wish. We note that neither H.R. 1623 nor H.R. 2962, nor indeed, in the Senate, S. 1301 or S. 1971, adopts that kind of discriminatory approach. We concur with all of the bills in that respect and we strongly urge the committee not to retreat from the one-tier position of fundamental fairness. I think everyone concurs that our mandatory requirements for copyright notice under sections 401 and 402 are incompatible. The IIA concurs as well, and we agree with the approach in the bill, that is, making copyright notice optional and providing incentives to induce people to use the optional notice. We also agree wholeheartedly with the Copyright Office that the mandatory deposit provisions of section 407 are fully compatible with Berne. They mandate that published works be deposited with the Library of Congress to enrich the valuable cultural collections of this country. They are compatible with Berne because they are not a condition for copyright protection in any way. If you don't comply with section 407, you can be fined, but you don't lose your copyright protection. section 407 does not prevent you from enforcing it. The Register of Copyrights has testified in support of the deposit provisions that appear in H.R. 1623, and we support those provisions as well. Let me point out that the bill would mandate the deposit even of published works that contain no copyright notice whatsoever. That would make the deposit provision even broader in its sweep than it is under present law. It would bring in additional works for the Library of Congress. The registration provision of section 408 is essentially compatible with Berne because it is permissive; it is not mandatory. The provisions of sections 410(c) and 412, that give substantial advantages when you register promptly, are also compatible, because they are not conditions of protection. Section 410(c), as I believe you know, makes a registration certificate prima facie evidence of copyright validity in infringement suits, and section 412 makes available the further inducements of statutory damages and attorney's fees. As I have already indicated, they are powerful incentives to IIA members to seek registration and to continue to do so, and we are pleased that they will be retained under both H.R. 1623 and H.R. 2962. The IIA concurs with the Ad Hoc Working Group, however, that registration and recordation as prerequisites to suit under sections 411 and 205(d)—the latter of which, incidentally, is a real trap for the unwary-that they are incompatible with Article 5(2) of Berne. They are incompatible because, although in theory you may have the copyright rights, as a practical matter you can't enforce them against an infringer. So you are really denied what Berne requires that you be permitted, that is, the enjoyment and exercise of those rights. For that reason, Mr. Chairman, we believe those requirements should be deleted in the enabling legislation. All of the reasons I have outlined are explained in much more detail, of course, in our written statement. We strongly support U.S. adherence to the Berne Convention with only the minimal changes in our law that adherence requires. I would be pleased to respond to any questions you may have. Thank you, Mr. Chairman. [The statement of Mr. Goldberg follows:] Information Industry Association 555 New Jersey Avenue, N.W., Suite 800 Washington, D.C. 20001 202/639-8262 Cable: INFORMASSN WASHINGTON UNITED STATES ADHERENCE TO THE BERNE CONVENTION Statement of Morton David Goldberg for the Information Industry Association before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice Committee on the Judiciary House of Representatives 100th Congress, Second Session on H.R. 1623 and H.R. 2962 February 10, 1988 Summary of the Statement of Information Industry Association The Information Industry Association (IIA) strongly supports U.S. adherence to the Berne Convention, because of the IIA's perspective on the importance of effective copyright protection in areas of new technology in the United States and abroad. IIA members create and distribute information products and services in a global marketplace, where the pace of piracy makes effective protection essential. Berne adherence provides IIA members numerous benefits, including: the high standards of protection it requires for works of new technology; more reliable protection in Berne countries without needlessly expensive and uncertain "back door" publication; copyright relations with additional countries; more effective participation in the development of international copyright policy for works of new technology; and, in combatting international piracy, a better bargaining position, both bilaterally and multilaterally in the GATT. Berne adherence will enhance the substantial contribution of copyright revenues to our balance of trade, and strengthen our international competitiveness. Berne requires only minimal changes in U.S. law, and the enabling legislation should make only those minimal changes. No change is required in U.S. law on moral rights, because protection under common law, various state statutes and the Lanham Act already complies. However, a few U.S. copyright provisions must be changed because they are "formalities" prohibited by Berne. The mandatory notice requirements of $5401 and 402 should be made optional, and $5403 and 404 should be revised to reflect this change. Sections 405 and 406 should be amended to limit their application to copies distributed prior to the effective date of the enabling legislation. The registration provision of $408 is essentially compatible with Berne, because it is permissive, not mandatory. The registration provisions of $410 (c) (prima facie evidence) and $412 (statutory damages and attorney's fees) provide valuable incentives to IIA members to register, and should also be retained, because they are not conditions for copyright protection. We also urge retaining the compatible provisions of $5205 (c) 205 (e), which, in the context of recordation, provide additional incentives to register. and The IIA concurs with the Ad Hoc Working Group, however, that registration and recordation as prerequisites to suit under $411 and $205(d) are incompatible with Article 5(2) of Berne because they interfere with "the enjoyment and the exercise" of copyright rights. For that reason, those requirements should be deleted in the enabling legislation. Sections 410 (c) and 412 (together with $5205 (c) and (e)) provide powerful incentives for registration, and IIA members and most other copyright proprietors will continue to seek such registration. Our national library system serves a most important role, and Berne compatibility fortunately requires no significant change in the valuable provisions of $407, since non-compliance results only in fines but does not affect the enjoyment and the exercise of copyright rights. Mr. Chairman, I am Morton David Goldberg, a member of the New York law firm of Schwab Goldberg Price & Dannay, Proprietary Rights Counsel to the IIA, the Information Industry Association. I am an Honorary Trustee and former President of The Copyright Society of the U.S.A.; an Honorary Council Member and former Chairman of the American Bar Association Section of Patent, Trademark and Copyright Law; and have been actively involved in copyright and other intellectual property matters for almost three decades, including the efforts in the 1960's and 1970's leading to the enactment, under your leadership in Congress, of the overall revision of the copyright law in the Copyright Act of 1976. I have served in a number of governmental advisory positions, including membership on the Panel of Consultants to the Register of Copyrights on the General Revision of the U.S. Copyright Law, and on the National Copyright Office Advisory Committee. I have also had the privilege of serving, with some other witnesses before you, on the Ad Hoc Working Group on U.S. Adherence to the Berne Convention which, at the request of the State Department, prepared the 1986 Report which was submitted to this Subcommittee on July 23, 1987 by Mr. Irwin Karp, its Chairman. |