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the extent that the United States copyright law affords a lower standard of protection than that required by Berne, we get a free ride from Berne members in receiving their greater protection. By joining the Berne Union, we would raise United States law and practice, already very high, to the level accepted by Berne members, who are among our closest copyright allies and our best customers, and thereby achieve political credibility in our international copyright relations. Adherence would constitute a declaration by the United States that we understand the responsibilities that flow from the worldwide appeal of our national authorship and that our law will take into fair consideration the needs of the global cultural community.

3. By adherence to Berne, United States authors will gain increased copyright protection both internationally and domestically.

United States authors will immediately receive high level copyright protection in the 24 Berne nations104/ that are not party to the UCC without having to engage in the cumbersome procedures necessary for "back door" protection under Berne. The People's Republic of China, a great nation with a billion users of copyrighted works, is giving serious consideration to Berne adherence and may well elect to join Berne in preference to the UCC.

In addition, United States membership in Berne would facilitate enforcement of copyrights of United States authors in Berne nations. With respect to infringements in Berne nations, we could encourage other Berne members to take diplomatic measures to seek governmental enforcement of copyright laws for works of their own nationals as well as ours.

With respect to infringements in non-Berne nations, several approaches are possible. We could encourage a unified effort on the part of Berne members to establish a "cordon sanitaire" to limit the distribution of

104. See Appendix A for the list of countries.

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the pirates' products beyond the borders of their country. Diplomatic pressures on these nations coming from all members might be more effective in influencing them to enforce foreign copyrights than pressures from the United States alone. Most importantly, if the United States adheres to Berne and takes a leadership role in international copyright relations, our authors will benefit from the stronger copyright laws and better universal copyright enforcement that will result from our fuller participation in the international copyright regime.

Domestically, adherence to Berne would require at least some changes in our copyright law. These changes would potentially increase copyright protection for United States as well as foreign authors and would make United States copyright law consistent with the international norm.

4. Only relatively minor changes to the Copyright Act of 1976 are necessary for the United States to meet the standards of protection required by the Berne Convention.

When Congress passed the Copyright Act of 1976, it held the standards of Berne in mind, and significantly amended United States copyright law in conformity with the Berne requirements. But at the time, Congress stopped just short of Berne compliance. With the escalating importance to our domestic economy of marketing the products of copyright industries in world trade, the time is ripe for Congress to move the last few inches in adapting the United States copyright law in accordance with the requirements of Berne. Only relatively minor adjustments to the Copyright Act of 1976 will be necessary to achieve compliance.

The few changes to the United States law that might require raising the level of copyright protection would not have a significant economic impact on the industries involved or the nation as a whole. Changes to the formalities presently required for the enforcement of copyrights under the

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United States law would not harm copyright proprietors and may not adversely affect users. However, if Congress determines that retention of formalities

is necessary or desirable for United States interests, Congress can make compliance with formalities voluntary only for foreign claimants seeking to protect works under the Berne Convention, and retain formalities for works of United States origin.

Furthermore, adherence to the Berne Convention will not substantially limit Congress' ability to craft creative solutions to the problem of protecting new technologies in the future. Under the Berne Convention, Congress would remain free to legislate a compulsory license solution to such problems in many instances. The Berne Convention only prohibits compulsory licenses regarding certain exclusive rights of authors. Where the Convention is silent or ambiguous, new compulsory licenses may be adopted. Thus, by way of example, Congress could create a compulsory license governing home taping, or satellite transmissions, since authors are not clearly guaranteed under Berne exclusive rights for these uses of their works.

B. Arguments Against United States Adherence.

1. Adherence to the Berne Convention is not necessary for the United States to establish itself as a world leader in copyright.

That the United States is already and will remain a world leader in international copyright is evidenced by the leadership demonstrated by this country through its participation in international copyright conferences, bilateral treaty negotiations, and the GATT intellectual property initiative. To the extent that the Berne Convention is influential in establishing international norms and world policies in copyright protection in light of technological developments and changing world politics, the United States is

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represented and takes an active role in the same decision-making forum as Berne members. The United States, as a member of the UCC, participates at joint WIPO-UNESCO conferences on contemporary copyright issues, and remains a member of the UCC's Intergovernmental Copyright Committee.

Although proponents of adherence argue that adherence to the Berne Union is desirable because WIPO offers the United States a less politicized arena for determining international copyright policy, in fact, WIPO is as deeply beset by the range of political and economic issues of today's geopolitics as is UNESCO. Both the UCC and the Berne Conventions were revised in 1971 pursuant to the Protocol Regarding Developing Countries, and the impetus for revision came from Berne members. The notorious Stockholm Protocol for Developing Countries was agreed to by Berne states at their 1967 Conference, and the UCC was not then involved. The political influence of developing countries resulted in concessions that shifted the focus of both conventions away from protecting copyright owners toward serving copyright users in developing countries. The 1971 concessions in the Berne Convention demonstrate that now Berne members are divided into caucuses for developing, developed, and socialist countries, resulting in the formulation of international copyright policy steeped in compromise.

Under these circumstances, the Berne Union has lost its former flexibility to adapt copyright policy that expands copyright protection and enforcement. It has lost its movement toward higher level protection. The United States can lead a struggle against piracy through its UCC membership, and in the GATT.

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2. Adherence to the Berne Convention will not enhance United States political credibility or strengthen its position for negotiating multilateral and bilateral trade agreements.

Through the UCC and bilateral agreements, the United States provides authors of Berne member states and other nations with the same high level of copyright protection enjoyed by United States authors. The United States need not adhere to the Berne Convention to claim integrity in copyright relations with either Berne members or pirate nations.

Even if the United States were to adhere to the Berne Convention, one uniform set of international copyright standards would not apply between the United States and other Berne members, since the Berne Convention is not one uniform set of standards. The obligations of each Berne member vary depending upon the particular Berne text to which it subscribes.

Thus, while

the United States would be obligated to afford the highest level of Berne protection to authors of other member states under the 1971 Paris text, Berne members subscribing to earlier texts (e.g. Canada and New Zealand, which subscribe to the substantive provisions of the 1928 Rome Act) would extend to United States authors a lower level of protection.

The fact that the United

States does not adhere to Berne does not mean that we have a politically inferior status in the international copyright order.

Nor will United States negotiations for multilateral and bilateral trade agreements suffer because the United States is not a member of the Berne Union, if our representatives make our best arguments. In light of the high levels of copyright protection offered in the United States, the claims of pirate nations that we lack standing to insist on adequate copyright protection until we adhere to Berne are disingenuous. For non-UCC members, we could insist on reciprocal protection; let the pirate nations meet United States standards. The United States can also point to the Berne standards as