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Based on existing substantive American law (including State common law), precedents in other Berne countries (such as the United Kingdom), and even the advice of the Director-General of WIPO, which administrates Berne, we agree with the widely shared view that no change in American law is required regarding moral rights to effect United States adherence to Berne. We fully support the approaches to this issue found in H.R. 2962 and S. 1301.

Renewal and Retroactivity. Among the most difficult compatibility issues are those surrounding renewal and retroactivity. These issues have been thoroughly and perceptively analyzed in Chapters X and XI of the final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention. We believe the most significant question is whether, under Berne Articles 18 (1) and (2), the United States would be required to grant retroactive protection to works that are in the public domain in the United States but are not in the public domain in their Berne country of origin. Such a result is raised by the Article 18(1) requirement that protection must be granted to all works which "have not fallen into the public domain in the country of origin through the expiry of term of

protection."

Countless works not in the public domain in their Berne country of origin are in the public domain in the United States for failure to comply with formalities such as renewal, notice, and the manufacturing clause. If Article 18(1) were read literally, the United States would have to protect such works retroactively. Such a law would raise very serious Constitutional questions.

However, there is a way out of what is ultimately only a transitional problem, suggested at a 1978 WIPO Group of Consultants' meeting on problems surrounding United StatesAdherence to Berne, viz., to treat the pre-1976 Act common law term of protection as the Article 18 "term of protection which was previously granted" and to then state that the common law term expired at the moment the works in question were published without complying with the relevant United States requirements.

In light of the substantial consitutional, policy, and practical problems raised by this issue, the transitional nature of the issue, and the apparent willingness of WIPO experts to accept (indeed to suggest) this solution, we favor it as the best possible solution under the circumstances.

In conclusion,

adherence to Berne.

we

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strongly support United States We would be very happy to expand on

the views we have expressed here in support of such adherence.

Sincerely,

Joseph A. Ne Grandi

Joseph A. DeGrandi
President

JD/CC

CC: Honorable Mike Synar

Honorable Patricia Schroeder

Honorable George W. Crockett, Jr.

Honorable Bruce A. Morrison

Honorable Howard L. Berman

Honorable Frederick C. Boucher

Honorable John Bryant

Honorable Benjamin L. Cardin

Honorable Carlos J. Moorhead

Honorable Henry J. Hyde

Honorable Daniel E. Lungren

Honorable Michael DeWine

Honorable Howard Coble

Honorable D. French Slaughter, Jr.

Michael J. Remington, Esq.

Thomas E. Mooney, Esq.

David W. Beier, III, Esq.

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This statement for the record is written on behalf of our client, Hal Roach Studios, Inc. Hal Roach Studios produces new programming for television and owns the copyright in a large film library, including such classics as the Laurel and Hardy films. Through its affiliated company Colorization, Inc., Hal Roach has led the way to convert black-and-white movies and television series into color, these including films from its own archives as well as other public domain works.

Hal Roach Studios strongly believes that the United States should not join the Berne Convention. Berne Convention adherence would necessarily inject new moral rights laws and policies into the law of this country which would be contrary to the vast body of copyright law and policies which have been carefully shaped over time by Congress and the courts. Adherence to Berne would also drastically change established contractual relationships, upset expectations and would cause unnecessary uncertainty and litigation in the artistic community and entertainment marketplace.

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The Berne Convention Would Inject

New Moral Rights Law Into This Country

Should the United States become a member of the Berne convention it would be required to adhere to the 1971 Paris text. Article 6bis of that text states in pertinent part that, "[i]ndependently of the author's economic rights and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which could be prejudicial to his honor or reputation." Article 6bis therefore, requires that its member nations will have in place moral rights laws to provide the protection stated above. However, there is currently no moral rights protection in this country equivalent to that set forth in Article 6bis.

Certainly, the state moral rights legislation which exists today provides limited protection, governs only certain kinds of works, and is in force in only a handful of states. Moreover, the Copyright Act itself does not provide any moral rights law. To the contrary, the Copyright Act permits, for example, an author to transfer any and all rights away and presumes that the employer rather than the creator-in-fact may claim authorship and control the uses of the copyrighted work. The Lanham Act prevents only the false designation of origin. Although this act has been interpreted as an elastic piece of legislation, it would strain to the bursting point if it were to try to provide moral rights protection contemplated by Article 6bis.

Thus, because there is no existing body of moral rights law, the U.S. would be required not merely acknowledge that there are existing moral rights provisions but must over time expand the law in those areas to create those rights. Courts may very well look to the moral rights laws of other Berne members for guidance. In this way, the provisions of Article 6bis could in fact be de facto self-executing.

Moral Rights are Antithetical to
Established Copyright Principles and
Contractual Relationships

If introduced into the United States, moral rights principles as articulated in Article 6bis could run contrary to our copyright policies, and would upset contractual relationship based on those policies, which have evolved over many years. Berne countries such as France, moral rights have developed over

In

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time through years of tradition. Contractual relationships have been built with those rights clearly in the mind of the parties. In the United States however, contractual relationships have been built with the expectation of the existing and long-standing copyright law, policy and legal precedent which emphasize the freedom of contract and property. It would be extremely unfair and unproductive to upset these established contractual relationships and economic investments by introducing moral rights principles into our system. In our litigious society, such action would surely result in an increased and unnecessary amount of litigation. Congress would certainly not want this unintended result.

As a practical matter, if "authors" were in fact able to object to a modification of their work as permitted under Article 6bis this could drastically interfere with the production of newspapers, motion pictures, television programming and newscasts. This is especially true if, as has been maintained in testimony before your subcommittee, moral rights are personal to the author and are not waivable or alienable. The many potential "authors" of a work, which in a movie, for example, could be one of many screen writers, the author of the underlying novel, the director or the producer, may not agree what modifications may be permitted. In fact, it would not be inconceivable that a set or costume designer or a composer of a musical score who are "authors" of certain elements of a movie, would not agree to modification of their work. Moreover, despite what has been argued by the Directors Guild of America, there is nothing in the language of Article 6bis which would limit moral rights protection to only those changes made after the work has been published. Therefore, any of these individuals could hold up the production and distribution of, and deny public access to, works which have been modified after the "authors'" original efforts. This is so, even though the works are funded by an employer or contractor.

Congress Should Not Disrupt Our System Which
Promotes The Arts as Well as the Economy

In formulating copyright law and policy, Congress is empowered under Article 1, Section 8, Clause 8, "to promote the Progress of Science and useful Arts." The purpose of copyright protection is not to reward authors as an end in itself but rather, to produce works, especially those which will be appreciated and observed. The introduction of moral rights into this country would only serve to frustrate, and not further this goal. In the United States, legal precedent permits authors to produce works for hire and to assign away copyrights. This is

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