the copyright owner or the owner of the exclusive right of publication is subject to fines.

Since the deposit requirements of $407, although mandatory, are not a condition of copyright protection, in our view they do not constitute a formality incompatible with Berne. We agree with the conclusion of the Ad Hoc Working Group to that effect. Ad Hoc Report, 10 Colum.-VLA J. Law & Arts at 566; Senate Hearings at 474.

The Ad Hoc Working Group also noted that a number of Berne member countries require deposits for national libraries. Ad Hoc Report, 10 Colum.-VLA J. Law & Arts at 574; see 575-80; Senate Hearings 482; see 483-88. We believe that the Library of Congress plays a valuable role in the words of Ralph Oman, Register of

in our society by Copyrights

-

"acquir[ing],

accessible to all, cultural

preserv[ing], and mak [ing]

the material expressions of national

life." Oman Statement at 29. The deposit provision of $407 is essential to the Library of Congress in fulfilling this valuable role, and it is compatible with Berne. It should be retained.

We support the approach taken by H.R. 1623 and H.R. 2962, both of which would simply amend $407 (a) by striking

the words "with notice of copyright," to reflect that notice will no longer be mandatory.

concur -

Deposit is also a necessary element of registration under $408. As the Ad Hoc Working Group concluded and we the deposit requirements of $408 are compatible with Berne, because they are merely ancillary to registration and registration itself under $408 is permissive, not mandatory. We have already discussed above the registration requirements of the Copyright Act, including our concurrence with the conclusion of the Ad Hoc Working Group that, while registration is compatible with Berne, registration as a

prerequisite to suit is not.

Mr. Chairman, I have tried to outline the reasons why IIA strongly urges Berne adherence, and to indicate those few changes we believe are necessary in the enabling legislation. Again, we are very grateful for your dedicated efforts on this matter and those of the other Subcommittee members and the staff.

I should be pleased to respond to any questions you or the other members may have.

Mr. KASTENMEIER. Thank you, Mr. Goldberg. Actually, that is a very concise comment.

I indicated that you had offered the committee a 43-page statement and I say that to compliment you for the work that you have done in terms of the background for this presentation to the committee.

Mr. GOLDBERG. On behalf of all of those who contributed to that, including my associates June Besek and John Burleigh, and David Peyton of the Information Industry Association, I accept that, Mr. Chairman. Thank you very much.

Mr. KASTENMEIER. Mr. Steinhilber, to what extent, having examined both bills before the committee, whether or not you or your association are "copyright experts," do you find anything with which you disagree or feel ought to be changed in either of these two bills?

Mr. STEINHILBER. We have a couple of comments.

First of all, in H.R. 1623, Section 106, on moral rights, we do not believe it is necessary. We are convinced from the experts that a combination of the Lanham Act and common law that the U.S. would be in adherence. We have one other technical concern that is on Section 10 on page 13 of that same bill. Section 401(d) has a provision in there on evidence and the weight of the evidence and the same provision also appears on page 14.

Under 5042 of the current law, educators have some specific. rights in terms of how we are treated in any litigation-where our defense is fair use. We would like to make sure that it is clear in the legislative history of this bill that this does not impact nor decrease the rights we already have under 504.

I think the only other comment is probably a further discussion of the issue of 411, 412, on formalities. As we understand, formalities are not permitted as a condition for the right to exist. However, procedural- or judicially related requirements are not forbidden. What that kind of dichotomy really means is a matter of immense discussion which you have been going about right now. We met with, or actually are part of the ad hoc working group-that is compared to Educators' Ad Hoc Committee-and we did discuss 407 and 408 as deposit is compatible. 410(c), as a previous witness indicated to you, is also compatible because of the evidence in 412.

When we get to the question of 411, we know that the ad hoc working committee said it is not compatible with Berne and then when the Copyright Office came in with its testimony, it basically said only change that which is absolutely required and we, in turn, asked whether the deletion of 411 is absolutely required. They said it wasn't. For nonexperts in this field, it placed us somewhat of a quandary.

I would say that if 411 remains in the law or out of the law, either way, we would not oppose joining Berne. We would like to have 411 in, but not if it is at the expense of Berne.

Mr. KASTENMEIER. In conclusion, one of the points you make is that you say you are uncertain whether, for example, Berne would take positions that require changes in U.S. law.

The preceding two witnesses dealt with what might help if the United States changed its laws in a way that would be incompatible with Berne. Do you have anything in mind; that is, as in the

recent case wherein Berne required changes in a major member's

Mr. STEINHILBER. No. What I was sort of relating to, when we have 30 organizations together in a room and we studied the issue, as I say, over a three-year period, the question was one of an uneasy feeling. The uneasy feeling was where does this trip lead us?

Our concern was, okay, we joined Berne now as Berne exists now and we are comfortable with it, but what is going to happen two years, four years, five years from now if Berne, then, begins to look at changes? Then, are we going to be whip-sawed with changes in the internationals coming back and saying, "Well, if we are supporting Berne, we should be making those changes," even though, as I understand, you can join Berne after a certain period of time and don't have to accept the new changes. I think the pressure is always to accept.

Therefore, we are just making our position known in advance. We reserve that right and we are also basically taking the position that we want to make sure that everyone, whoever is involved in Berne, particularly the Copyright Office, that we are concerned with the right of the general public.

Mr. KASTENMEIER. You do express, I guess, concern that users, which your association is certainly a member, are not necessarily represented in Berne deliberations. That may well be a problem of who is appointed to be members of the U.S. delegation to the World Intellectual Property Organization and so forth.

Did you ever apprise the Register of Copyrights or the State Department, maybe Mr. Winter?

Mr. STEINHILBER. We have, in fact. Right now, with respect to the State Department, Mr. Winter has placed us on his list of advisors. When he has his meetings, we are invited to his meetings. The answer is yes, our relationship with both organizations are good at this particular moment, but there is always a question of what happens when there is a change in the Register.

We want to make sure that everybody understands that the Educators' Ad Hoc Committee came into being in 1964 and I guess it is the longer ad hoc committee in record because every time we think our work is done, we find somehow this issue reappears and we have to keep going. We will continue our vigilence. We are now in the process of looking to our new leadership. After I leave, there is going to be another individual here, just as the NEA and ACE represented it before.

Mr. KASTENMEIER. As, I think, with many groups and organizations, your organization takes the position that, as you see it, this adherence will be relatively neutral with respect to the organization, but what probably causes some concern is that it will require monitoring and vigilance on your part.

I would observe that it may be the case that, as far as your organization is concerned, trade negotiations with foreign countries on intellectual property might take positions well beyond U.S. law, for example, fair use or library photocopying. That is to say, it might set higher standards in the trade context than we actually here in the domestic intellectual property context in the United States.

That may be something you would have to monitor as well, it seems to me.

Mr. STEINHILBER. We are well aware that, indeed, we have already sent to the U.S. Department of Commerce some of our concerns which we supplied letters for that correspondence with your counsel because I dare say that is an issue and will continue to be

one.

Mr. KASTENMEIER. Mr. Goldberg, I think I understand your position on formalities and registration. You obviously clearly oppose a two-tier approach and have indicated general support for the two bills in their present form, with respect to formalities, as I recall. Mr. GOLDBERG. As a general matter, yes, Mr. Chairman. Mr. KASTENMEIER. Yes.

Maybe you know-I do not-do any of the other Berne members have a two-tiered approach?

Mr. GOLDBERG. I don't believe that there is a specific. two-tier approach that has any widespread adoption among Berne members, but if I may, I would like to look into that and get back to you, Mr. Chairman.

[Additional materials from Mr. Goldberg follow:]